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PROPOSED DRAINAGE AND FLOOR WORKS AT KNH FAREWELL

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TENDER NO: KNH/T/91/2024-2025

Tender Closing / Opening Date: 10th October, 2024 10:00Hrs

Site Visit Date: 3rd October 2024 @10:30AM

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 TABLE OF CONTENTS

INVITATION TOTENDER ..................................................................................................................... v

PART 1 - TENDERING PROCEDURES

SECTION I - INSTRUCTIONSTOTENDERERS .......................................................................................... 1
A
Scope of Tender .................................................................................................................................. 1
2. Definitions ............................................................................................................................. 1
3. Fraud and Corruption .............................................................................................................. 1
4. Eligible Tenderers................................................................................................................... 1
5. Eligible goods, Plant and equipment for Installation Services ........................................................ 3
B. Contents of Tendering Document ............................................................................................. 3
6. Sections of Tendering Document .............................................................................................. 3
7. Site Visit ................................................................................................................................ 4
8. Pre-Tender Meeting and a pre-arranged pretender visit of the site of the works ............................... 4
9. Clarification of Tender Documents ........................................................................................... 5
10. Amendment of Tendering Document ........................................................................................ 5
C. Preparation of Tenders ........................................................................................................... 5
11. Cost of Tendering................................................................................................................... 5
12. Language of Tender ............................................................................................................... 5
13. Documents Comprising the Tender .......................................................................................... 5
14. Form of Tender and Price Schedules......................................................................................... 6
15. Alternative Tenders ................................................................................................................ 6
14. Documents Establishing the Eligibility of the Plant and Installation Services ................................... 7
15. Documents Establishing the Eligibility and Qualifications of the Tenderer ..................................... 7
16. Documents Establishing the Conformity of the Plant and Installation Services ................................. 8
17. Tender Prices and Discounts .................................................................................................... 8
18. Currencies of Tender and Payment ......................................................................................... 10
19. Period of Validity of Tenders ................................................................................................. 10
20. Tender Security.................................................................................................................... 10
21. Format and Signing of Tender ................................................................................................ 11
22. Submission, Sealing and Marking of Tenders ........................................................................... 11
23. Deadline for Submission of Tenders ........................................................................................ 12
24. Late Tenders ........................................................................................................................ 12
26. Tender Opening ................................................................................................................... 12
B. Evaluation and Comparison of Tenders .................................................................................. 13

27. Confidentiality...................................................................................................................... 13
28. Clarification of Tenders ......................................................................................................... 13
29. Deviations, Reservations, and Omissions ................................................................................ 14
30. Determination of Responsiveness .......................................................................................... 14
31. Nonmaterial Non-conformities .............................................................................................. 14
32. Correction of Arithmetical Errors............................................................................................ 14
33. Conversion to Single Currency ............................................................................................... 15
34. Margin of Preference ............................................................................................................ 15

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35. Evaluation of Tenders ........................................................................................................... 15
36. Comparison of Tenders......................................................................................................... 16
37. Abnormally Low Tenders and Abnormally high Tenders ........................................................... 16
38. Unbalanced or Front-Loaded Tenders .................................................................................... 17
39. Eligibility and Qualification of the Tenderer............................................................................. 17
40. Procuring Entity's right to Accept any Tender and to Reject Any or all Tenders ............................. 18

A. Award of Contract................................................................................................................ 18
41 Award Criteria ..................................................................................................................... 18
42. Notice of Intention to Enter into a Contract ............................................................................ 18
43. Standstill Period ................................................................................................................... 18
44. Debriefing by the Procuring Entity .......................................................................................... 18
45. Letter of Award .................................................................................................................... 18
46. Signing of Contract ............................................................................................................... 19
47. Performance Security ............................................................................................................ 19
48 Publication of Procurement Contract....................................................................................... 19
49. Appointment of Adjudicator .................................................................................................. 19
50. Procurement Related Complaint ............................................................................................. 19

SECTION II – TENDER DATA SHEET ................................................................................................... 20

SECTION III - EVALUATION AND QUALIFICATION CRITERIA ............................................................. 24

1. General Provision ................................................................................................................. 24

2. Preliminary examination for Determination of Responsiveness .................................................. 24

3. Evaluation ........................................................................................................................... 24
4. Multiple Contracts (ITT35.6) ................................................................................................. 26
5. MARGIN OF PREFERENCE ................................................................................................... 26
6. Alternative Tenders (ITT13.1) ............................................................................................... 27
7. Post qualification and Contract award (ITT 39), more specifically .............................................. 27

SECTION IV -TENDERING FORMS ...................................................................................................... 35

1. FORM OFTENDER................................................................................................................ 35
TENDERER'S ELIGIBILITY - CONFIDENTIALBUSINESSQUESTIONNAIRE ............................................................. 37
CERTIFICATE OF INDEPENDENTTENDERDETERMINATION .................................................................. 40
SCHEDULE OF RATESANDPRICES ...................................................................................................... 44
Price Adjustment............................................................................................................................... 46

TECHNICALPROPOSAL ...................................................................................................................... 48

Contractor's Equipment ..................................................................................................................... 53

Functional Guarantees ....................................................................................................................... 53
Personnel ......................................................................................................................................... 54

Tenderers Qualification without prequalification ................................................................................... 56

Form ELI 1.1 ..................................................................................................................................... 57

Form ELI 1.2 ..................................................................................................................................... 58

Form FIN – 3.1 ................................................................................................................................. 60
Form FIN - 3.2 .................................................................................................................................. 61
Form FIN3.3 ..................................................................................................................................... 61

Form EXP4.1 .................................................................................................................................... 62

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Form of Tender Security .................................................................................................................... 65
Form of Tender Security –Bank Guarantee ........................................................................................... 65
FORM OF TENDER SECURITY -INSURANCE GUARANTEE .................................................................... 66
TENDER-SECURING DECLARATION FORM {r 46and 155(2)} ............................................................... 67
MANUFACTURER'SAUTHORIZATIONFORM .......................................................................................... 68

PART 2 - PROCURINGENTITY'S REQUIREMENTS ................................................................................ 69

SCOPE OF SUPPLY OF PLANT AND INSTALLATION SERVICES BYTHE CONTRACTOR .......................... 70
Specification ................................................................................................................................. 71
FORMSAND PROCEDURES ............................................................................................................ 72
Form of Completion Certificate ...................................................................................................... 72
FORM OF OPERATIONALACCEPTANCECERTIFICATE ....................................................................... 72
CHANGE ORDER PROCEDUREANDFORMS ...................................................................................... 73

ANNEX 1. REQUEST FORCHANGEPROPOSAL ................................................................................... 74

ANNEX 2. ESTIMATE FORCHANGE PROPOSAL ............................................................................... 75
ANNEX 3. ACCEPTANCEOFESTIMATE ............................................................................................. 76
ANNEX 4. CHANGE PROPOSAL ..................................................................................................... 77
ANNEX 5. CHANGE ORDER .......................................................................................................... 79
ANNEX 6. PENDING AGREEMENTCHANGEORDER ........................................................................... 80
ANNEX 7. APPLICATION FORCHANGE PROPOSAL ......................................................................... 81

PART 3 – GENERAL CONDITIONS OF CONTRACT AND CONTRACT FORMS ................................... 85

GENERAL CONDITIONS OF CONTRACT ......................................................................................... 86

A. Contract and Interpretation ................................................................................................... 86
1. Definitions ........................................................................................................................... 86
2. Contract Documents ............................................................................................................. 86
3. Interpretation ...................................................................................................................... 87
4. Communications .................................................................................................................. 88
5. Law and Language ............................................................................................................... 88
6. Fraud and Corruption............................................................................................................ 88
B. Subject Matter of Contract ..................................................................................................... 88
7. Scope of Facilities ................................................................................................................ 88
8. Time for Commencement and Completion .............................................................................. 89
9. Contractor's Responsibilities .................................................................................................. 89
10. Procuring Entity's Responsibilities .......................................................................................... 90

C. Payment.............................................................................................................................. 90
11. Contract Price ...................................................................................................................... 90
12. Terms of Payment ................................................................................................................ 91
13. Securities ............................................................................................................................ 91
14. Taxes and Duties .................................................................................................................. 92
A. Intellectual Property ............................................................................................................. 92
15. License/Use of Technical Information .................................................................................... 92
16. Confidential Information ....................................................................................................... 92
B. Execution of the Facilities ...................................................................................................... 93
17. Representatives ................................................................................................................... 93
18. Work Program ..................................................................................................................... 94
19. Subcontracting..................................................................................................................... 95
20. Design and Engineering ........................................................................................................ 95

21. Procurement ........................................................................................................................ 96

22. Installation .......................................................................................................................... 97
23. Test and Inspection ............................................................................................................ 102

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24. Completion of the Facilities ................................................................................................. 103
25. Commissioning and Operational Acceptance ......................................................................... 104

A. Guarantees and Liabilities.................................................................................................... 105

26. Completion Time Guarantee ............................................................................................... 105
27. Defect Liability ................................................................................................................... 106
28. Functional Guarantees ........................................................................................................ 107
29. Patent Indemnity ............................................................................................................... 108
30. Limitation of Liability .......................................................................................................... 108
B. Risk Distribution ................................................................................................................. 109
31. Transfer of Ownership ........................................................................................................ 109
32. Care of Facilities ................................................................................................................. 109
34. Insurance ........................................................................................................................... 110
35. Unforeseen Conditions ......................................................................................................... 113
36. Change in Laws and Regulations ........................................................................................... 113
37. Force Majeure ..................................................................................................................... 113
38. War Risks ........................................................................................................................... 114
A. Change in Contract Elements ................................................................................................ 115
39. Change in the Facilities ........................................................................................................ 115
40. Extension of Time for Completion.......................................................................................... 117
41. Suspension ......................................................................................................................... 118
42. Termination ........................................................................................................................ 119
43. Assignment ....................................................................................................................... 122
44. Export Restrictions ............................................................................................................. 122
B. Claims, Disputes and Arbitration........................................................................................... 123
45. Contractor's Claims ............................................................................................................ 123
46. Claims, Disputes and Arbitration........................................................................................... 124

SECTION IX - SPECIAL CONDITIONS OF CONTRACT ..................................................................... 126

SECTION VIII -CONTRACT FORMS ............................................................................................... 128

NOTIFICATION OF INTENTION TO AWARD................................................................................ 129
REQUEST FOR REVIEW ............................................................................................................... 132
LETTER OF AWARD ..................................................................................................................... 132
CONTRACT AGREEMENT ............................................................................................................ 133

APPENDICES .............................................................................................................................. 135

APPENDIX 1: TERMS AND PROCEDURES OF PAYMENT .................................................................. 136
APPENDIX 2. PRICE ADJUSTMENT................................................................................................ 138
APPENDIX 3. INSURANCE REQUIREMENTS .................................................................................. 140
APPENDIX 4. TIME SCHEDULE ..................................................................................................... 142
APPENDIX 5. LIST OF MAJOR ITEMS OF PLANT AND INSTALLATION SERVICES
AND LIST OF APPROVED SUB CONTRACTORS .............................................................................. 143
APPENDIX 6. SCOPE OF WORKS AND SUPPLY BY THEPROCURING ENTITY ................................... 144
APPENDIX 7. LIST OF DOCUMENTS FOR APPROVALOR REVIEW .................................................. 145
APPENDIX 8. FUNCTIONALGUARANTEES ...................................................................................... 146

PERFORMANCE SECURITY FORM ................................................................................................ 148

PERFORMANCE SECURITY OPTION 2 – (Performance Bond) ......................................................... 150
ADVANCE PAYMENT SECURITY – Demand Bank Guarantee ........................................................... 152
BENEFICIAL OWNERSHIP DISCLOSURE ........................................................................................ 152

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INVITATION TO TENDER

KENYATTA NATIONAL HOSPITAL

TENDER NOTICE
Kenyatta National Hospital wishes to invite sealed tenders for the following:

S/No Tender Number Tender Description Eligibility Closing Date

1. KNH/T/91/2024-2025 PROPOSED DRAINAGE AND FLOOR National 10/10/2024
WORKS AT KNH FAREWELL HOME Open 10.00 Hrs.
Tender

Interested eligible candidates may obtain further information and inspect the Tender Documents at
Kenyatta National Hospital (KNH), Administration Block Supply Chain Management Department offices,
Room No.6, from Monday to Friday between 9:00am to 4:00pm. Tender documents with detailed
Specifications and Conditions can be downloaded free of charge from the KNH Website
(www.knh.or.ke) or www.tenders.go.ke PPIP Portal. Hard copies can be obtained from the office of
the Director, Supply Chain Management located at the Hospital's Main Administration Block Room6
from Monday to Friday between 9.00 a.m. to 4.00 p.m. upon payment of a non-refundable fee of
Kshs.1,000.00 per tender document via Mpesa pay bill No.626088, Account Number –Name of
Supplier and obtain an official receipt from Cash Office (Administration Block) or bankers Cheque made
payable to Kenyatta National Hospital.
Bidders who choose to download the tender documents from the website free of charge should
immediately email their name and contact details (cell phone number, email, and company name) to:
[email protected] and [email protected] for records and communication of any tender
clarifications and/or addenda. KNH will ONLY respond to queries or clarifications sought in writing by
interested bidders, which will be received not later than 03/10/2024.

Completed tender documents must be returned as specified in the tender document and deposited in
the Tender Box situated at the Kenyatta National Hospital Administration Block, ground floor Supply
Chain Management entrance office before on 10/10/2024before or at 10:00am and be addressed to:

The Chief Executive Officer

Kenyatta National Hospital
Hospital Rd. Along, Ngong Rd.
P.O. Box 20723,
NAIROBI

FOR: CHIEF EXECUTIVE OFFICER

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PART 1 - TENDERING PROCEDURES

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SECTION I -INSTRUCTIONS TO TENDERERS

General

Scope of Tender

1.1 In connection with the Invitation to Tender (ITT), specified in the Tender Data Sheet (TDS), the
Procuring Entity, issues this Tendering document for the Design, Supply and Installation of Plant and
equipment as specified in Section VII, Procuring Entity's Requirements.

Definitions

2.1 Throughout this Tender document:

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

Fraud and Corruption

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

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

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

3.4 Tenderers shall permit and shall cause their agents (where declared or not), subcontractors, sub
consultants, service providers, suppliers, and their personnel, to permit the Procuring Entity to inspect all
accounts, records and other documents relating to any initial selection process, prequalification process,
tender submission, proposal submission, and contract performance (in the case of award), and to have
them audited by auditors appointed by the Procuring Entity.

Eligible Tenderers
4.1 A Tenderer may be a firm that is a private entity, a state-owned enterprise or institution subject to
ITT 4.6, or any combination of such entities in the form of a joint venture (JV) under an existing agreement
or with the intent toenter into such an agreement supported by a Form of intent. In the case ofa joint
venture, all members shall be jointly and severally liable for the execution of the entire Contract in
accordance with the Contract terms. The JV shall nominate a Representative who shall have the authority
to conduct all business for and on behalf of any and all the members of the JV during the Tendering process
and, in the event the JV is awarded the Contract, during contract execution. The maximum number of JV
members shall be specified in the TDS.

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4.2 Public Officers of the Procuring Entity and their relatives (i.e. spouse, child, parent, brother or sister
and a child, parent, brother or sister of a spouse) their business associates or agents and firms/organizations
in which they have a substantial or controlling interest shall not be eligible to tender or be awarded a
contract. Public Officers are also not allowed to participate in any procurement proceedings.

4.3 A Tenderer shall not have a conflict of interest. Any Tenderer found to have a conflict of interest shall
be disqualified. A Tenderer may be considered to have a conflict of interest for the purpose of this
Tendering process, if the Tenderer:
Directly or indirectly controls, is controlled by or is under common control with another Tenderer; or
Receives or has received any direct or indirect subsidy from another Tenderer; or Has the same legal
representative as another Tenderer; or Has a relationship with another Tenderer, directly or through
common third parties, that puts it in a position to influence the Tender of another Tenderer, or influence
the decisions of the Procuring Entity regarding this Tendering process; or any of its affiliates participated
as a consultant in the preparation of the design or technical specifications of the Plant and Installation
Services that are the subject of the Tender; or any of its affiliates has been hired (or is proposed to be
hired) by the Procuring Entity as Project Manager for the Contract implementation; or would be providing
goods, works, or non-consulting services resulting from or directly related toconsulting servicesfor the
preparation or implementation of the project specified in the TDS ITT 2.1 that it provided or were provided
by any affiliate that directly or indirectly controls, is controlled by, or is under common control with that
firm; or has a close business or family relationship with a professional staff of the Procuring Entity who:
are directly or indirectly involved in the preparation of the Tendering documentor specifications of the
Contract, and/or the Tender evaluation process of such Contract; or (ii) would be involved in the
implementation or supervision of such contract unless the conflict stemming from such relationship has
been resolved in a manner acceptable to the Procuring Entity.

4.4 A tenderer shall not be involved in corrupt, coercive, obstructive or fraudulent practice. A tenderer
that is proven to have been involved in any of these practices shall be automatically disqualified and
would not be awarded a contract

4.5 A firm that is a Tenderer (either individually or as a JV member) shall not participate as a Tenderer or
as JV member in more than one Tender except for permitted alternative Tenders. Such participation shall
result in the disqualification of all Tenders in which the firm is involved. However, this does not limit the
participation of a Tenderer as subcontractor in another Tender or of a firm as a subcontractor in more
than one Tender.

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

4.7 A Tenderer that has been debarred by the PPRA shall be ineligible to be prequalified for, initially
selected for, Tender for, propose for, financially or otherwise, during such period of time as the PPRA
shall have determined. The list of debarred firms and individuals is available at PPRA Website
www.ppra.go.ke.

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

4.9 Firms and individuals may be ineligible if so indicated in Section V and (a)as a matter of law or official
regulations, Kenya prohibits commercial relations with that country; or (b)by an act of compliance with a
decisionof the United Nations Security Council taken under Chapter VII of the Charterof the United
Nations, Kenya prohibits any import of goods or contracting of works or services from

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that country, or any payments to any country, person, or entity in that country. Where the procurement
is implemented across jurisdictional boundaries, then exclusion of a firm or individual on the basis of ITT
4.8 (a) above by any country may be applied to that procurement across other countries involved.
4.10 Foreign tenderers are required to source at least forty (40%) percent of their contract inputs (in
supplies, subcontracts and labor) from national suppliers and contractors. To this end, a foreign tenderer
shall provide in its tender documentary evidence that this requirement is met. Foreign tenderers not
meeting this criterion will be automatically disqualified. Information required to enable the Procuring Entity
determine if this condition is met shall be provided in for this purpose is be provided in “SECTION III -
EVALUATION AND QUALIFICATION CRITERIA, Item 9”.

4.11 Pursuant to the eligibility requirements of ITT 4.10, a tender is considered a foreign tenderer, if it is
registered in Kenya, has less than 51 percent ownership by nationals of Kenya and if it does not subcontract
foreign contractors more than 10 percent of the contract price. JVs are considered as foreigntenderers if
the individual member firms are registered in Kenya have less than 51 percent ownership by nationals of
Kenya. The JV shall not subcontract to foreign firms more than 10 percent of the contract price.

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

4.13 A Kenyan tenderer shall provide evidence of having fulfilled his/her tax obligations by producing a
valid tax clearance certificate or tax exemption certificate issued by the Kenya Revenue Authority.

Eligible goods, Plant and equipment for Installation Services

5.1 The Plant and equipment for Installation Services to be supplied under the Contract may have their
origin in any eligible country.

5.2 For purposes of ITT 5.1 above, “origin” means the place where the plant, or component parts thereof
are mined, grown, produced or manufactured, and from which the services are provided. Plant components
are produced when, through manufacturing, processing, or substantial or major assembling of components,
a commercially recognized product results that is substantially in its basic characteristics orin purpose or
utility from its components.

5.3 Any goods, works and production processes with characteristics that have been declared by the
relevant national environmental protection agency or by other competent authority as harmful to human
beings and to the environment shall not be eligible for procurement.

Contents of Tendering Document

Sections of Tendering Document

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

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PART 1 - Tendering Procedures Section I-
Instructions to Tenderers (ITT)Section II-
Tender Data Sheet (TDS)
Section III- Evaluation and Qualification Criteria
Section IV-Tendering Forms
Section V- Eligible Countries
Section VI- Fraud and Corruption

PART 2 - Procuring Entity's Requirements

vii) Section VII-Procuring Entity's Requirements

PART 3 - Conditions of Contract and Contract Forms

Section VIII- General Conditions of Contract (GCC)
Section IX- Special Conditions of Contract (SCC) Section
X- Contract Forms

6.2 The Invitation to Tender Notice issued by the Procuring Entity is not part of the Tendering document.

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

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

Site Visit

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

Pre-Tender Meeting and a pre-arranged pretender visit of the site of the works

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

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

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

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

Clarification of Tender Documents

9.1 A Tenderer requiring any clarification of the Tender Document shall contact the Procuring Entity in
writing at the Procuring Entity's address specified in the TDS or raise its enquiries during the pre-Tender
meeting and the pre-arranged pretender visit of the site of the works if provided for in accordance with
ITT8.4. The Procuring Entity will respond in writing to any request for clarification, provided that such
request is received no later than the period specified in the TDS prior to the deadline for submission of
tenders. The Procuring Entity shall forward copies of its response to all tenderers who have acquired the
Tender Documents in accordance with ITT6.3, including a description of the inquiry but without identifying
its source. If so specified in the TDS, the Procuring Entity shall also promptly publish its responseat the
webpage identified in the TDS. Should the clarification result in changes to the essential elements of the
Tender Documents, the Procuring Entity shall amend the Tender Documents appropriately following the
procedure under ITT10.

Amendment of Tendering Document

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

10.2 Any addendum issued shall be part of the tendering document and shall be communicated in writing
to all who have obtained the tendering document from the Procuring Entity in accordance with ITT6.3. The
Procuring Entity shall also promptly publish the addendum on the Procuring Entity's webpage in accordance
with ITT8.1.

10.3 To give prospective Tenderers reasonable time in which to take an addendum into account in
preparing their Tenders, the Procuring Entity shall extend, as necessary, the deadline for submission of
Tenders, in accordance with ITT24.2 below.

Preparation of Tenders

Cost of Tendering

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

Language of Tender

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

Documents Comprising the Tender

13.1 The Tender shall comprise the following:

Form of Tender prepared in accordance with ITT 14.1;

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Price Schedules completed in accordance with ITT 14 and ITT 19;
Tender Security or Tender Securing Declaration, in accordance with ITT 22;
Alternative Tender, if permissible, in accordance with ITT 15;
Authorization: written confirmation authorizing the signatory of the Tender to commit the Tenderer,
in accordance with ITT 23.3;
Eligibility of Plant and Installation Services: documentary evidence established in accordance with ITT
16.1 that the Plant and Installation Services offered by the Tenderer in its Tender or in any alternative
Tender, if permitted, are eligible;
Tenderer's Eligibility and Qualifications: documentary evidence in accordance with ITT 17.1establishing
the Tenderer's eligibility and qualifications to perform the Contract if its Tender is accepted;
Conformity: documentary evidence in accordance to ITT18 that the Plant and Installation Services
offered by the Tenderer conform to the Tendering document;
Subcontractors: list of subcontractors in accordance with ITT18.2; and
Any other document required in the TDS.

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

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

Form of Tender and Price Schedules

14.1 The Form of Tender and Price Schedules shall be prepared, using the relevant forms furnished in
Section IV, Tendering Forms. The forms must be completed as instructed in each form without any
alterations to the text, and no substitutes shall be accepted except as provided under ITT 21.3. All blank
spaces shall be filled in with the information requested.

Alternative Tenders

15.1 Unless otherwise specified in the TDS, alternative Tenders shall not be considered.

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

15.3 Except as provided under ITT 15.4 below, Tenderers wishing to offer technical alternatives to the
Procuring Entity's requirements as described in the Tendering document must also provide: (i) a price at
which they are prepared to offer a Plant meeting the Procuring Entity's requirements; and
all information necessary for a complete evaluation of the alternatives by the Procuring Entity, including
drawings, design calculations, technical specifications, breakdown of prices, and proposed installation
methodology and other relevant details. Only the technical alternatives, if any, of the Tenderer with the
Best Evaluated Tender conforming to the basic technical requirements shall be considered by the Procuring
Entity.

15.4 When Tenderers are invited in the TDS to submit alternative technical solutions for specified parts of
the facilities, such parts will be identified in the TDS, as will the method for their evaluation, and described
in Section VII, Procuring Entity's Requirements.

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Documents Establishing the Eligibility for works

16.1 To establish the eligibility of the Plant and Installation Services in accordance with ITT 5, Tenderers
shall complete the country-of-origin declarations in the Price Schedule Forms, included in Section IV,
Tendering Forms.
Documents Establishing the Eligibility and Qualifications of the Tenderer

17.1 To establish its eligibility and qualifications to perform the Contract in accordance with Section III,
Evaluation and Qualification Criteria, the Tenderer shall provide the information requested in the
corresponding information sheets included in Section IV, Tendering Forms.

17.2 Tenderers shall be asked to provide, as part of the data for qualification, such information, including
details of ownership, as shall be required to determine whether, according to the classification established
by the Procuring Entity a supplier or group of suppliers qualifies for a margin of preference. Further the
information will enable the Procuring Entity identify any actual or potential conflict of interest in relation to
the procurement and/or contract management processes, or a possibility of collusion betweentenderers,
and thereby help to prevent any corrupt influence in relation to the procurement process or contract
management.

17.3 The purpose of the information described in ITT 15.1 above overrides any claims to confidentiality
which a tenderer may have. There can be no circumstances in which it would be justified for a tenderer to
keep information relating to its ownership and control confidential where it is tendering to undertake public
sector work and receive public sector funds. Thus, confidentiality will not be accepted by the Procuring
Entity as a justification for a Tenderer's failure to disclose, or failure to provide required information on its
ownership and control.

17.4 The Tenderer shall provide further documentary proof, information or authorizations that the
Procuring Entity may request in relation to ownership and control which information on any changes to
the information which was provided by the tenderer under ITT 15.1. The obligations to require this
information shall continue for the duration of the procurement process and contract performance and after
completion of the contract, if any change to the information previously provided may reveal a conflict of
interest in relation to the award or management of the contract.

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

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

17.7 If information submitted by a tenderer pursuant to these requirements, or obtained by the Procuring
Entity (whether through its own enquiries, through notification by the public or otherwise), shows any
conflict of interest which could materially and improperly benefit the tenderer in relation to the
procurement or contract management process, then:

if the procurement process is still ongoing, the tenderer will be disqualified from the
procurement process,

if the contract has been awarded to that tenderer, the contract award will be set aside,

the tenderer will be referred to the relevant law enforcement authorities for investigation of whether
the tenderer or any other persons have committed any criminal offence.

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17.8 If a tenderer submits information pursuant to these requirements that is in complete, inaccurate or
out- of-date, or attempts to obstruct the verification process, then the consequences ITT 6.7 will ensue
unless the tenderer can show to the reasonable satisfaction of the Procuring Entity that any such act was
not material, or was due to genuine error which was not attributable to the intentional act, negligence or
recklessness of the tenderer.

Documents Establishing the Conformity of works

18.1 The Tenderer shall furnish the information stipulated in Section IV, Tendering Forms in sufficient
detail to demonstrate substantial responsiveness of the Tenderers' proposal to the work requirements
andthe completion time.

18.2 For major items of Plant and Installation Services as listed by the Procuring Entity in Section III,
Evaluation and Qualification Criteria, which the Tenderer intends to purchase or subcontract, the Tenderer
shall give details of the name and nationality of the proposed Subcontractors, including manufacturers, for
each of those items. In addition, the Tenderer shall include in its Tender information establishing
compliance with the requirements specified by the Procuring Entity for these items. Quoted rates and
prices will be deemed to apply to whichever Subcontractor is appointed, and no adjustment of the rates
and prices will be permitted.

18.3 The Tenderer shall be responsible for ensuring that any Subcontractor proposed complies with the
requirements of ITT 4, and that any plant, or services to be provided by the Subcontractor comply with
the requirements of ITT 5 and ITT 15.1.

Tender Prices and Discounts

19.1 Unless otherwise specified in the TDS, Tenderers shall quote for the entire Plant and Installation
Services on a “single responsibility” basis. The total Tender price shall include all the Contractor's
obligations mentioned in or to be reasonably inferred from the Tendering document in respect of the
design, manufacture, including procurement and subcontracting (if any), delivery, construction, installation
and completion of the Plant. This includes all requirements under the Contractor's responsibilities for
testing, pre-commissioning and commissioning of the plant and, where so required by the Tendering
document, the acquisition of all permits, approvals and licenses, etc.; the operation, maintenance and
training services and such other items and services as specified in the Tendering document, all in
accordance with the requirements of the General Conditions. Items against which no price is entered by
the Tenderer will not be paid for by the Procuring Entity when executed and shall be deemed to be covered
by the prices for other items.

19.2 Tenderers are required to quote the price for the commercial, contractual and technical obligations
outlined in the Tendering document.

19.3 Tenderers shall give a breakdown of the prices in the manner and detail called for in the Price
Schedules included in Section IV, Tendering Forms.

19.4 Depending on the scope of the Contract, the Price Schedules may comprise up to the nine (9)
schedules listed below. Separate numbered Schedules included in Section IV, Tendering Forms, from those
numbered 1 to 4 below, shall be used for each of the elements of the Lift and Installation Services. The
total amount from each Schedule corresponding to an element of the Plant and Installation Services shall
be summarized in the schedule titled Grand Summary, (Schedule 5), giving the total Tender price (s) to be
entered in the Form of Tender. Tenderers shall note that the plant and equipment included in Schedule
Nos. 1 and 2 below exclude materials used for civil, building and other construction works. All such
materials shall be included and priced under Schedule No.4, Installation Services. The Schedules comprise:

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Schedule No. 1: Mobilization cost including storage
Schedule No. 2: construction cost including handing over to client
Schedule No. 3: Builders work including venting, all chasing, cutting away and making good
Schedule No. 4: Electrical works including installation, isolation and protection.
Schedule No. 5: Commissioning cost including handing over, and maintenance during defect liability period.

Schedule No. 6:
i. Allow for factory inspection for 4 persons
ii. Allow for contingency sum.

19.5 In the Schedules, Tenderers shall give the required details and a breakdown of their prices as
follows:
Plant to be supplied from a broad (Schedule No.1):
The price of the Plant shall be quoted on CIP-named place of destination basis as specified in the TDS, including all
taxes payable in Kenya. Plant manufactured within Kenya (Schedule No.2):
The price of the plant shall be quoted on an EXW Incoterm basis (such as “ex-works,” “ex-factory,” “ex-
warehouse” or “off-the-shelf,” as applicable);
Sales tax and all other taxes payable in Kenya on the plant if the contract is awarded to the
Tenderer;and
The total price for the item.
Design Services (Schedule No.3);
Installation Services shall be quoted separately (Schedule No.4) and shall include rates or prices for local
transportation to named place of final destination as specified in the TDS, insurance and other services
incidental to delivery of the plant, all labor, contractor's equipment, temporary works, materials, consumables
and all matters and things of whatsoever nature, including operations and maintenance services, the
provision of operations and maintenance manuals, training, etc., where identified in the Tendering document,
as necessary for the proper execution of the installation and other services, includingall taxes, duties, levies
and charges payable in Kenya as of twenty-eight (28) days prior to the deadline forsubmission of Tenders;
Recommended spare parts shall be quoted separately (Schedule 6) as specified in either subparagraph
(a) or (b) above in accordance with the origin of the spare parts.

19.6 The terms EXW, CIP, and other similar terms shall be governed by the rules prescribed in the current
edition of Incoterms, published by the International Chamber of Commerce, as specified in the TDS.

19.7 The prices shall be either fixed or adjustable as specified in the TDS.

19.8 In the case of Fixed Price, prices quoted by the Tenderer shall be fixed during the Tenderer's
performance of the contract and not subject to variation on any account. A Tender submitted with an
adjustable price quotation will be treated as non-responsive and rejected.

19.9 In the case of Adjustable Price, prices quoted by the Tenderer shall be subject to adjustment during
performance of the contract to reflect changes in the cost elements such as labor, material, transport and
contractor's equipment in accordance with the procedures specified in the corresponding Appendix to the
Contract Agreement. A Tender submitted with a fixed price quotation will not be rejected, but the price
adjustment will be treated as zero. Tenderers are required to indicate the source of labor and material indices
in the corresponding Form in Section IV, Tendering Forms.

19.10 If so indicated in ITT 1.1, Tenders are being invited for individual lots (contracts) or for any
combination of lots (packages). Tenderers wishing to offer any price reduction (discount) for the award of

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more than one Contract shall specify in their Form of Tender the price reductions applicable to each package,
or alternatively, to individual Contracts within the package, and the manner in which the price reductions
will apply.

19.11 Tenderers wishing to offer any unconditional discount shall specify in their Form of Tender the offered
discounts and the manner in which price discounts will apply.

Currencies of Tender and Payment

20.1 The currency(ies) of the Tender and the currency(ies) of payments shall be the same. The Tenderer
shall quote in the currency of Kenya the portion of the Tender price that corresponds to expenditures
incurred in the currency of Kenya, unless otherwise specified in the TDS.

20.2 The Tenderer may express the Tender price in any currency. If the Tenderer wishes to be paid in a
combination of amounts in different currencies, it may quote its price accordingly but shall use no more than
three foreign currencies in addition to the currency of Kenya.
Period of Validity of Tenders

21.1 Tenders shall remain valid for the Tender Validity period specified in the TDS. The Tender Validity
period starts from the Tender submission deadline (as prescribed by the Procuring Entity in accordance
with ITT 23.1). A Tender valid for a shorter period shall be rejected by the Procuring Entity as non-
responsive.

21.2 In exceptional circumstances, prior to the expiration of the Tender validity period, the Procuring Entity
may request Tenderers to extend the period of validity of their Tenders. The request and the responses shall
be made in writing. If a Tender Security is requested in accordance with ITT 20, the Tenderer granting the
request shall also extend the Tender Security for twenty-eight (28) days beyond the deadline of the extended
validity period. A Tenderer may refuse the request without forfeiting its Tender Security. A Tenderer granting
the request shall not be required or permitted to modify its Tender, except as provided in ITT 19.3.

21.3 If the award is delayed by a period exceeding fifty-six (56) days beyond the expiry of the initial
Tender validity period, the Contract price shall be determined as follows:
In the case of fixed price contracts, the Contract price shall be the Tender price adjusted by the factor
or factors specified in the TDS;
In the case of adjustable price contracts, no adjustment shall be made; or in any case, Tender evaluation shall be
based on the Tender price without taking into consideration the applicable correction from those indicated above.

Tender Security

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

22.2 A Tender-Securing Declaration shall use the form included in Section IV Tendering Forms.

22.3 If a Tender Security is specified pursuant to ITT 20.1, the Tender security shall be a demand
guarantee in anyof the following forms at the Tenderer's option: cash,
cash; a bank guarantee; a guarantee by an insurance company registered and licensed by the Insurance
Regulatory Authority listed by the Authority; or a guarantee issued by a financial institution approved
and licensed by the Central Bank of Kenya,

22.4 If a Tender Security or a Tender-Securing Declaration is specified pursuant to ITT 20.1, any Tender not
accompanied by a substantially responsive Tender Security or Tender-Securing Declaration shall be rejected

17
by the Procuring Entity as non-responsive.

22.5 If a Tender Security is specified pursuant to ITT 20.1, the Tender Security of unsuccessful Tenderers shall
be returned as promptly as possible upon the successful Tenderer's furnishing of the Performance Security
pursuant to ITT 47.

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

22.7 The Tender Security may be forfeited or the Tender-Securing Declaration executed:
If a Tenderer withdraws its Tender during the period of Tender validity specified by the Tenderer on
the Form ofTender; or
If the successful Tenderer fails to:
Sign the Contract in accordance with ITT 47; or Furnish a performance security in accordance with ITT 48.

22.8 Where the Tender-Securing Declaration is executed the Procuring Entity will recommend to the PPRA
to debar the Tenderer from participating in public procurement as provided in the law.

22.9 The Tender Security or the Tender-Securing Declaration of a JV shall be in the name of the JV that
submits the Tender. If the JV has not been legally constituted into a legally enforceable JV at the time of
Tendering, the Tender Security or the Tender Securing Declaration shall be in the names of all future
members as named in the Form of intent referred to in ITT 4.1and ITT 11.2.
Format and Signing of Tender

23.1 The Tenderer shall prepare one original of the documents comprising the Tender as described in ITT
11 and clearly mark it “Original.” Alternative Tenders, if permitted in accordance with ITT 13, shall be
clearly marked “Alternative”. In addition, the Tenderer shall submit copies of the Tender, in the number
specified in the TDS and clearly mark them “Copy.” In the event of any discrepancy between the original
and the copies, the original shall prevail.

23.2 Tenderers shall mark as “CONFIDENTIAL” information in their Tenders which is confidential to
business. This may include proprietary information, trade secrets their or commercial or financially
sensitive information.
23.3 The original and all copies of the Tender shall be typed or written in indelible ink and shall be signed
by a person duly authorized to sign on behalf of the Tenderer. This authorization shall consist of a written
confirmation as specified in the TDS and shall be attached to the Tender. The name and position held by
each person signing the authorization must be typed or printed below the signature. All pages of the Tender
where entries or amendments have been made shall be signed or initialed by the person signing the Tender.

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

23.5 Any interlineations, erasures, or overwriting shall be valid only if they are signed or initialed by the
person signing the Tender.

Submission and Opening of Tenders

Submission, Sealing and Marking of Tenders

24.1 The Tenderer shall deliver the Tender in a single, sealed envelope (one (1) envelope process). The
Tenderer shall place the following separate, sealed envelopes:

Inner Envelops:
In an envelope marked “ORIGINAL”, all documents comprising the Tender, as described in ITT 11; and

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In an envelope marked “COPIES”, all required copies of the Tender; and
If alternative Tenders are permitted in accordance with ITT 13, and if relevant:
In an envelope marked “ORIGINAL–ALTERNATIVE TENDER” the alternative Tender; and
in the envelope marked “COPIES – ALTERNATIVE TENDER” all required copies of the alternative Tender.

The inner envelopes shall:

Bear the name and address of the Tenderer;
Be addressed to the Procuring Entity in accordance with ITT 23.1;
Bear the specific identification of this Tendering process indicated in accordance with ITT
1.1 ; and Bear a warning not to open before the time and date for Tender opening.

The outer envelope (s) in which the inner envelops are enclosed shall:
Be addressed to the Procuring Entity in accordance with ITT 23.1;
Bear the specific identification of this Tendering process indicated in accordance with ITT
1.1 ; and Bear a warning not to open before the time and date for Tender opening.

24.2 If all envelopes are not sealed and marked as required, the Procuring Entity will assume no
responsibility for the misplacement or premature opening of the Tender. Tenders that are misplaced or
opened prematurely will not be accepted.

Deadline for Submission of Tenders

25.1 Tenders must be received by the Procuring Entity at the address and no later than the date and time
indicated in the TDS. When so specified in the TDS, Tenderers shall have the option of submitting their
Tenders electronically. Tenderers submitting Tenders electronically shall follow the electronic Tender
submission procedures specified in the TDS.
25.2 The Procuring Entity may, at its discretion, extend the deadline for the submission of Tenders by
amending the Tendering document in accordance with ITT8, in which case all rights and obligations of the
Procuring Entity and Tenderers previously subject to the deadline shall thereafter be subject to the deadline
as extended.

Late Tenders

26.1 The Procuring Entity shall not consider any Tender that arrives after the deadline for submission of
Tenders, in accordance with ITT 23. Any Tender received by the Procuring Entity after the deadline for
submission of Tenders shall be declared late, rejected, and returned unopened to the Tenderer.

Withdrawal, Substitution, and Modification of Tenders

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

27.2 Tenders requested to be withdrawn in accordance with ITT25.1 shall be returned unopened to the Tenderers.

27.3 No Tender may be withdrawn, substituted, or modified in the interval between the deadline for
submission of Tenders and the expiration of the period of Tender validity specified by the Tenderer on the
19
Form of Tender or any extension thereof.

Tender Opening
28.1 Except as in the cases specified in ITT24 and ITT25.2, the Procuring Entity shall publicly open and
read out in accordance with ITT26.5 all Tenders received by the deadline at the date, time and place
specified in the TDS in the presence of Tenderers' designated representatives and anyone who choose to
attend. Any specific electronic Tender opening procedures required if electronic Tendering is permitted in
accordance with ITT 23.1, shall be as specified in the TDS.

28.2 First, the written notice of withdrawal in the envelopes marked “Withdrawal” shall be opened and
read out and the envelope with the corresponding Tender shall not be opened, but returned to the
Tenderer. No Tender withdrawal shall be permitted unless the corresponding withdrawal notice contains
a valid authorization to request the withdrawal and is read out at Tender opening.

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

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

28.5 Next, all remaining envelopes shall be opened one at a time, reading out: the name of the Tenderer
and the Tender Price(s), including any discounts and alternative Tenders, and indicating whether there is a
modification; the presence or absence of a Tender Security or Tender-Securing Declaration, if required;
and any other details as the Procuring Entity may consider appropriate.
28.6 Only Tenders, alternative Tenders and discounts that are opened and read out at Tender opening
shall be considered further. The Form of Tender and the Price Schedules are to be initialed by
representatives of the Procuring Entity attending Tender opening in the manner specified in the TDS.

28.7 The Procuring Entity shall neither discuss the merits of any Tender nor reject any Tender (except for
late Tenders, in accordance with ITT 24.1).

28.8 The Procuring Entity shall prepare a record of the Tender opening that shall include, as a minimum:
The name of the Tenderer and whether there is a withdrawal, substitution, or
modification; The Tender Price, per lot if applicable, including any discounts;
Any alternative Tenders; and
The presence or absence of a Tender Security or a Tender-Securing
Declaration. Number of pages for each tender

28.9 The Tenderers' representatives who are present shall be requested to sign the record. The omission
of a Tenderer's signature on the record shall not invalidate the contents and effect of the record. A copy of
the record shall be distributed to all Tenderers.

Evaluation and Comparison of

Tenders Confidentiality

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

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

29.3 Notwithstanding ITT 27.2, from the time of Tender opening to the time of Contract Award, if any
Tenderer wishes to contact the Procuring Entity on any matter related to the Tendering process, it should
do so in writing.

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Clarification of Tenders

30.1 To assist in the examination, evaluation, and comparison of the Tenders, and qualification of the
Tenderers, the Procuring Entity may, at its discretion, ask any Tenderer for a clarification of its Tender. Any
clarification submitted by a Tenderer that is not in response to a request by the Procuring Entity shall not
be considered. The Procuring Entity's request for clarification and the response shall be in writing. No
change in the prices or substance of the Tender shall be sought, offered, or permitted, except to confirm
the correction of arithmetic errors discovered by the Procuring Entity in the evaluation of the Tenders, in
accordance with ITT32.

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

Deviations, Reservations, and Omissions

31.1 During the evaluation of Tenders, the following definitions apply:
“Deviation” is a departure from the requirements specified in the Tendering document;
“Reservation” is the setting of limiting conditions or withholding from complete acceptance of the requirement
specified in the Tendering document; and
“Omission” is the failure to submit part or all of the information or documentation
required in the Tendering document.
Determination of Responsiveness
32.1 The Procuring Entity's determination of a Tender's responsiveness is to be based on the
contents of the Tender itself, as defined in ITT 11.
32.2 A substantially responsive Tender is one that meets the requirements of the Tendering document
without material deviation, reservation, or omission. A material deviation, reservation, or
omission is one that:
If accepted, would:
Affect in any substantial way the scope, quality, or performance of the Plant and
Installation Services specified in the Contract; or
Limit in any substantial way, in consistent with the Tendering document, the Procuring Entity's
rights or the Tenderer's obligations under the proposed Contract; or
if rectified, would unfairly affect the competitive position of other Tenderers presenting substantially responsive
Tenders.

32.3 The Procuring Entity shall examine the technical aspects of the Tender in particular, to confirm that
all requirements of Section VII, Procuring Entity's Requirements have been met without any material
deviation, reservation, or omission.

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

Non material Non-conformities

33.1 Provided that a Tender is substantially responsive, the Procuring Entity may waive any nonconformity
in the Tender.

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

33.3 Provided that a Tender is substantially responsive, the Procuring Entity shall rectify quantifiable non
material non-conformities related to the Tender Price. To this effect, the Tender Price shall be adjusted, for
comparison purposes only, to reflect the price of a missing or non-conforming item or component in the
21
manner specified in the TDS.

Correction of Arithmetical Errors

34.1 Provided that the tender is substantially responsive, the Procuring Entity shall correct arithmetical
errors on the following basis:

If there is a discrepancy between the unit price and the total price that is obtained by multiplying the
unit price and quantity, the unit price shall prevail and the total price shall be corrected, unless in the
opinion of the Procuring Entity there is an obvious misplacement of the decimal point in the unit
price, in which case the total price as quoted shall govern and the unit price shall be corrected;
If there is an error in a total corresponding to the addition or subtraction of subtotals, the subtotals
shall prevail and the total shall be corrected; and
If there is a discrepancy between words and figures, the amount in words shall prevail, unless the amount
expressed in words is related to an arithmetic error, in which case the amount in figures shall prevail
subject to (a) and (b) above.

34.2 Any error detected if considered a major deviation that affects the substance of the tender, shall lead
to disqualification of the tender as non-responsive. The method of determining the error as a major
deviation shall be specified in the TDS.
34.3 Corrected tender prices shall not be used in the evaluation of tenders, comparison of tender prices.

34.4 The Procuring Entity shall calculate the difference between the corrected price and tender price and
work out the percentage difference, which will be plus or minus tender price as the case may be; [i.e.
(corrected tender price– tender price)/ tender price X100]. This percentage difference between corrected
tender price and tender price may be used to determine if the error so detected is considered a major
deviation that affects the substance of the tender.

34.5 On award of contract, all payment valuation certificates, variation orders on omissions and additions
valued based on rates in the Bill of Quantities will be adjusted by such a percentage specified in ITT 31.4
to ensure contractor is not paid less or more relative to the contract price which would be the tender price.
Conversion to Single Currency
35.1 For evaluation and comparison purposes, the currency (ies) of the Tender shall be converted
into a single currency as specified in the TDS.

Margin of Preference

36.1 A margin of preference may be allowed on locally manufactured goods (plant and equipment) only
when the contract is open to international tendering, where the tender is likely to attract foreign goods
and where the contract exceeds the threshold specified in the Regulations.

36.2 A margin of preference shall not be allowed unless it is specified so in the TDS.

36.3 Contracts procured on basis of international tendering and competition shall not be subject to
reservations exclusive/ specific groups under women, youth and persons living with disability.

36.4 Where it is intended to reserve a contract to a specific group of businesses (these groups are Small
and Medium Enterprises, Women Enterprises, Youth Enterprises and Enterprises of persons living with
disability, as the case may be), and who are appropriately registered as such by a competent authority, a
procuring entity shall ensure that the invitation to tender specifically indicates that only businesses or firms
belonging to the specified group are eligible to tender. Tender shall be reserved to only one group. If not
so stated in the Tender documents, the invitation to tender will be open to all interested tenderers.

Evaluation of Tenders

37.1 The Procuring Entity shall use the criteria and methodologies listed in this ITT and Section III,
Evaluation and Qualification criteria. No other evaluation criteria or methodologies shall be permitted. By
applying the criteria and methodologies the Procuring Entity shall determine the Best Evaluated Tender.

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This is the Tender of the Tenderer that meets the qualification criteria and that has been determined to be:
Most responsive to the Tendering document; and The lowest evaluated cost.

37.2 Technical Evaluation. The Procuring Entity will carry out a detailed technical evaluation of the
Tenders not previously rejected to determine whether the technical aspects are incompliance with the
Tendering document. The Tender that does not meet minimum acceptable standards of completeness,
consistency and detail, and the specified minimum (or maximum, as the case may be) requirements for
specified functional guarantees, will be rejected for non-responsiveness. In order to reach its determination,
the Procuring Entity will examine and compare the technical aspects of the Tenders on the basis of the
information supplied by the Tenderers, taking into account the following:
Overall completeness and compliance with the Procuring Entity's Requirements; conformity of the
Plant and Installation Services offered with specified performance criteria, including conformity with the
specified minimum (or maximum, as the case may be) requirement corresponding to each functional
guarantee, as indicated in the Specification and in Section III, Evaluation and Qualification
Criteria; suitability of the Plant and Installation Services offered in relation to the environmental and
climatic conditions prevailing at the site; and quality, function and operation of any process control concept
included in the Tender; type, quantity and long-term availability of mandatory and recommended spare
parts and maintenance services; and other relevant factors, if any, listed in Section III, Evaluation and
Qualification Criteria.
37.3 Where alternative technical solutions have been allowed in accordance with ITT 13, and offered by
the Tenderer, the Procuring Entity will make a similar evaluation of the alternatives. Where alternatives
have not been allowed but have been offered, they shall be ignored.

37.4 Economic Evaluation. To evaluate a Tender, the Procuring Entity shall consider the following:
the Tender price, excluding provisional sums and the provision, if any, for contingencies in the Price
Schedules; price adjustment due to discounts offered in accordance with ITT 17.11; price adjustment due
to quantifiable non material non-conformities in accordance with ITT 31.3;

converting the amount resulting from applying (a) to (c) above, if relevant, to a single currency in
accordance with ITT 33; and
the evaluation factors specified in the TDS and in Section III, Evaluation and Qualification Criteria.

37.5 If price adjustment is allowed in accordance with ITT 17.7, the estimated effect of the price
adjustment provisions of the Conditions of Contract, applied over the period of execution of the Contract,
shall not be taken into account in Tender evaluation.

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

Comparison of Tenders

38.1 The Procuring Entity shall compare the evaluated costs of all substantially responsive Tenders
established in accordance with ITT 35.4 to determine the Tender that has the lowest evaluated cost.

Abnormally Low Tenders and Abnormally High Tenders

39.1 An Abnormally Low Tender is one where the Tender price, in combination with other elements of the
Tender, appears so low that it raises material concerns as to the capability of the Tenderer to performthe
Contract for the offered Tender Price or that genuine competition between Tenderers is compromised.

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

23
39.3 After evaluation of the price analyses, in the event that the Procuring Entity determines that the
Tenderer has failed to demonstrate its capability to deliver the contract for the offered tender price, the
Procuring Entity shall reject the Tender.

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

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

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

Unbalanced or Front Loaded Tenders

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

40.2 After the evaluation of the information and detailed price analyses presented by the Tenderer, the
Procuring Entity may:
Accept the Tender; or
If appropriate, require that the total amount of the Performance Security be increased, at the
expense of the Tenderer, to a level not exceeding twenty percent (10%) of the Contract Price; or
Reject the Tender.

Eligibility and Qualification of the Tenderer

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

41.2 The determination shall be based upon an examination of the documentary evidence of the
Tenderer's qualifications submitted by the Tenderer, pursuant to ITT 15.1. The determination shall not take
into consideration the qualifications of other firms such as the Tenderer's subsidiaries, parent entities,
affiliates, subcontractors (other than Specialized Subcontractors if permitted in the Tendering document) or
any other firm (s) different from the Tenderer.

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

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 41.4 The capabilities of the manufacturers and subcontractors proposed in its Tender to be used by the
Tenderer with the Lowest Evaluated Tender for identified major items of supply or services will also be
evaluated for acceptability in accordance with Section III, Evaluation and Qualification Criteria. Their
participation should be confirmed with a Form of intent between the parties, as needed. Should a
manufacturer or subcontractor be determined to be unacceptable, the Tender will not be rejected, but the
Tenderer will be required to substitute an acceptable manufacturer or subcontractor without any change to
the Tender price. Prior to signing the Contract,

The corresponding Appendix to the Contract Agreement shall be completed, listing the
approved manufacturers or subcontractors for each item concerned.

Procuring Entity's right to Accept Any Tender and to Reject Any or All Tenders

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

Award of Contract

Award Criteria

43.3 Subject to ITT 40, the Procuring Entity shall award the Contract to the successful Tenderer. This is the
Tenderer who’s Tender has been determined to be the Lowest Evaluated Tender. This is the Tender of the Tenderer
that meets the qualification criteria and who’s Tender has been determined to be:
Substantially responsive to the Tendering Document;
and The lowest evaluated cost

Notice of Intention to Enter into a Contract/ Notification of Award

44.1 When a Standstill Period applies, it shall commence when the Procuring Entity has transmitted to each
Tenderer the Notification of Intention to Award the Contract to the successful Tenderer. The Notification
of Intention to Award shall contain, at a minimum, the following information:
The name and address of the Tenderer submitting the successful
Tender; The Contract price of the successful Tender;
A statement of the reason (s) the Tender (of the unsuccessful Tenderer to whom the Form is
addressed) was unsuccessful, unless the price information in c) above already reveals the reason;
The expiry date of the Standstill Period; and
Instructions on how to request a debriefing and/ or submit a complaint during the standstill period.

Standstill Period

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

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

Debriefing by the Procuring Entity

46.1 On receipt of the Procuring Entity's Notification of Intention to Enter into a Contract referred to in
ITT 43, an unsuccessful tenderer may make a written request to the Procuring Entity for a debriefing on
specific issues or concerns regarding their tender. The Procuring Entity shall provide the debriefing within
five days of receipt of the request.

25
46.2 Debriefings of unsuccessful Tenderers may be done in writing or verbally. The Tenderer shall bear its
own costs of attending such a debriefing meeting.
Letter of Award

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

Signing of Contract

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

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

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

48.4 Notwithstanding ITT 46.2 above, in case signing of the Contract Agreement is prevented by any
export restrictions attributable to the Procuring Entity, to the country of the Procuring Entity, or to the use
of the Plant and Installation Services to be supplied, where such export restrictions arise from trade
regulations from a country supplying those Plant and Installation Services, the Tenderer shall not be bound
by its Tender, always provided, however, that the Tenderer can demonstrate to the satisfaction of the
Procuring Entity that signing of the Contact Agreement has not been prevented by any lack of diligence on
the part of the Tenderer in completing any formalities, including applying for permits, authorizations and
licenses necessary for the export of the Plant and Installation Services under the termsof the Contract.

Performance Security
49.1 Within twenty-one (21) days of the receipt of the Form of Acceptance from the Procuring Entity, the
successful Tenderer shall furnish the Performance Security in accordance with the General Conditions GCC
13.3, subject to ITT 38, using for that purpose the Performance Security Form included in Section X,
Contract Forms, or another form acceptable to the Procuring Entity. If the Performance Security furnished
by the successful Tenderer is in the form of a bond, it shall be issued by a bonding or insurance company
that has been determined by the successful Tenderer to be acceptable to the Procuring Entity. A foreign
institution providing a bond shall have a correspondent financial institution located in Kenya, unless the
Procuring Entity has agreed in writing that a correspondent financial institution is not required.

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

Publication of Procurement Contract

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

26
Appointment of Adjudicator

51.1 The Procuring Entity proposes the person named in the TDS to be appointed as Adjudicator under the
Contract, at the hourly fee specified in the TDS, plus reimbursable expenses. If the Tenderer disagrees with
this proposal, the Tenderer should so state in his Tender. If, in the Letter of Acceptance, the Procuring
Entity does not agree on the appointment of the Adjudicator, the Procuring Entity will request the
Appointing Authority designated in the Special Conditions of Contract (SCC) pursuant to Clause 23.1 of the
General Conditions of Contract (GCC), to appoint the Adjudicator.

Procurement Related Complaint and Administrative Review

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

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

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SECTION II - TENDER DATA SHEET

The following specific data for the Facilities to be procured shall complement, supplement, or amend the
provisions in the Instructions to Tenderers (ITT). Whenever there is a conflict, the provisions here in shall
prevail over those in ITT.

[Where an e-procurement system is used, modify the relevant parts of the TDS accordingly to reflect thee – procurement
process.]

[Instructions for completing the Tender Data Sheet are provided, as needed, in the notes in italics
mentioned for the relevant ITT.]

Reference to ITC PARTICULARS OF APPENDIX TO INSTRUCTIONS TO TENDERS

Clause
A. General

ITT 1.1 The reference number of the Invitation to Tender (ITT) is: KNH/T/91/2024-2025
The Procuring Entity is: Kenyatta National Hospital
The name of the ITT is: PROPOSED DRAINAGE AND FLOOR WORKS AT KNH
FAREWELL HOME
The number and identification of lots (contracts)comprising this ITT is: [insert
number and identification of lots (contracts) if any] N/A

ITT 2.1 The name of the Project is: PROPOSED DRAINAGE AND FLOOR WORKS AT KNH
FAREWELL HOME

Electronic –Procurement System is not applicable for this tender

The Procuring Entity shall use the following electronic-procurement system to
manage this Tendering process: N/A
ITT 4.1 Maximum number of members in the Joint Venture (JV) shall be: N/A

B. Tendering Document

ITT 8.1 The pre-tender conference and MANDATORY site visit will be held on 03/10/ 2024
starting at 10:30 East African Time. Prospective bidders will converge at the entrance of
Supply Chain Management offices, administration block at exactly 10.00 am for
debriefing before walking to the site. Interested bidders or their representatives MUST
sign an attendance register and be issued with a site visit certificate signed by
authorized official of the Hospital.
Any questions in writing, shall reach the Procuring Entity not later than
ITT 8.2
03/10/ 2024
Minutes of the pre-Tender meeting and the pre-arranged pretender visit of the site of
ITT 8.4
the works will be published at the website i.e. www.knh.or.ke

The Procuring Entity shall publish its response at the website www.knh.or.ke
ITT 9.1
C. Preparation of Tenders

ITT 13.1 (j) The Tenderer shall submit the following additional documents in its Tender:
.

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ITT 15.1 Alternative Tenders shall not be considered.

Reference to ITC PARTICULARS OF APPENDIX TO INSTRUCTIONS TO TENDERS

Clause
ITT 15.2 Alternatives to the Time Schedule shall not be considered /permitted.

ITT 15.4 Alternative technical solutions shall be permitted for the following parts of the Plant
and Installation Services: [insert parts of the Plant] N/A as further detailed
in the Specification.

ITT 19.1 Tenderers shall quote for the following components or services on a single
responsibility basis:
PROPOSED DRAINAGE AND FLOOR WORKS AT KNH FAREWELL HOME and/or
The following components or services will beprovided under the responsibility
of the Procuring Entity:
NONE

ITT 19.5 (a) and (d) Final destination (Project Site): Kenyatta National Hospital.

ITT 19.6 The Incoterms edition is: [Internationally Accepted Current Incoterms].

ITT 19.7 The prices quoted by the Tenderer shall not be subject to adjustment during the
performance of the Contract.

ITT 20.1 The Tenderer is required to quote in Kenya Currency the portion of the Tender
price that corresponds to expenditures incurred in that currency.

ITT 21.1 The Tender validity period shall be 119 days.

ITT 21.3 (a) The Tender price shall be adjusted by the following factor(s): N/A
[The local currency portion of the Contract price shall be adjusted by a factor
reflecting local inflation during the period of extension, and the foreign currency
portion of the Contract price shall be adjusted by a factor reflecting the
international inflation (in the country of the foreign currency) during the period of
extension.]
ITT 22.1 A Tender Security shall be required of Kshs. 500,000.00
A Tender Security shall be required, the amount and currency of the Tender Security
as stated above in form of;
Bank Guarantee or Guarantee by Insurance Company Registered by IRA and Listed
by the Authority or Guarantee Issued by Financial Institutions Approved and
licensed by Central Bank of Kenya.

ITT 23.1 In addition to the original of the Tender, the number of copies is: One.

29
ITT 23.3 The written confirmation of authorization to sign on behalf of the Tenderer shall
consist of:
[Power of Attorney].
D. Submission and Opening of Tenders
For Tender submission purposes, the Procuring Entity’s address is:
ITT 25.1
The Chief Executive Officer
Kenyatta National Hospital
Hospital Road, Along Gong Road
P.O Box 20723 - 00202
Nairobi

Reference to ITC PARTICULARS OF APPENDIX TO INSTRUCTIONS TO TENDERS

Clause

Tenders will be opened immediately thereafter in the presence of candidates or

their representatives who choose to attend.
Attention: [The Chief Executive Officer]
The Chief Executive Officer
Kenyatta National Hospital
P.O Box 20723 - 00202
Nairobi
The deadline for Tender submission is:
Date: 10/10/2024 at 10:00 am East African Time.

[The date and time should be the same as those provided in the Specific Procurement
Notice -Request for Tenders, unless subsequently amended pursuant to ITT 23.2]
Tenderers shall not have the option of submitting their Tenders electronically.

ITT 28.1 The Tender opening shall take place at:

Physical Address (Nairobi City County Upper hill off Hospital Road, Kenyatta
National Hospital Administration block, supply Chain Management Office Entrance)
Date: 10/10/2024 at 10:00 am East African Time.

ITT 28.6 The Form of Tender and Price Schedules shall be initialed by at least Three
representatives of the Procuring Entity conducting Tender opening.

E. Evaluation, and Comparison of Tenders

ITT 33.3 The adjustment shall be based on the price of the item or component as quoted in
other substantially responsive Tenders. If the price of the item or component cannot be
derived from the price of other substantially responsive Tenders, the Procuring Entity
shall use its best estimate. N/A

ITT 34.2 The error shall be determined as a major deviation if it is more than 0.0001% or less
than
0.0001 %.

30
ITT 35.1 The currency that shall be used for Tender evaluation and comparison purposes to convert
(selling exchange rate) all Tender prices expressed in various currencies into asingle currency
is: Kenyan Shillings.
The source of exchange rate shall be: Central Bank of Kenya.
Date of exchange rate shall be as per the date of submission of the Tender (openingand
closing date) 10/10/2024
A margin of preference shall not be allowed.
ITT 36.2

ITT 37.4 (e) The adjustments shall be determined using the following criteria, from amongst thoseset out in
Section III, Evaluation and Qualification Criteria: [refer to Section III, Evaluation and
Qualification Criteria; insert complementary details if necessary]

Reference to PARTICULARS OF APPENDIX TO INSTRUCTIONS TO TENDERS

ITC Clause
Deviation in Time for Completion: NO.
Life cycle costs: the projected operating and maintenance costs during the life of thegoods or
equipment Yes – include maintenance and accessories cost required for one
(1) year post warranty period. This should be quoted separately in the price schedule but
NOT in the Form of Tender
Functional and Guarantees of the Facilities [insert Yes or No, If Yes, insertmethodology
and criteria in Section III, Evaluation Qualification Criteria]
Work, services, facilities, etc., to be provided by the Procuring Entity [insert Yes or No,if yes,
insert the Methodology and criteria in Section III, Evaluation and Qualification Criteria];
[insert any other specific criteria here and provide details in Section III, Evaluation and
Qualification Criteria]

ITT 37.6 Tenderers shall be allowed (select one) to quote separate prices for different lots
(contracts) and the methodology to determine the lowest tenderer is specified inSection
III, Evaluation and Qualification Criteria. N/A

ITT 45 The Standstill Period is 14 Business Days [note: the minimum number of Business Days is
fourteen (14)] after the date the Procuring Entity has transmitted to all Tenderers that
Standstill
submitted a Tender, the Notification of its Intention to Award the Contract to the successful
Period
Tenderer.
The hourly fee specified is plus reimbursable expenses. N/A
ITT 51

ITT 52.1 The procedures for making a Procurement-related Complaint are detailed in the “Notice
of Intention to Award the Contract” herein and are also available from thePPRA website
[email protected] or [email protected].
For the attention: [The Chief Executive Officer]
Procuring Entity: [Kenyatta National Hospital]Email
address: [email protected]
In summary, a Procurement-related Complaint may challenge any of thefollowing: the
terms of the Tendering Documents; and
the Procuring Entity’s decision to award the contract.

31
SECTION III - EVALUATION AND QUALIFICATION CRITERIA
General Provision

1.2 Wherever a Tenderer is required to state a monetary amount, Tenderers should indicate the
Kenya Shilling equivalent using the rate of exchange determined as follows:
For construction turn over or financial data required for each year -Exchange rate prevailing on the last day of the
respective calendar year (in which the amounts for that year is to be converted) was originally established.
Value of single contract -Exchange rate prevailing on the date of the contract signature.
Exchange rates shall be taken from the publicly available source identified in the ITT 33.1. Any
error in determining the exchange rates in the Tender may be corrected by the Procuring
Entity.

1.3 This section contains the criteria that the Procuring Entity shall use to evaluate tender and qualify
tenderers. No other factors, methods or criteria shall be used other than specified in this tender document.
The Tenderer shall provide all the information requested in the forms included in Section IV, Tendering
Forms. The Procuring Entity should use the Standard Tender Evaluation Report for Goods and Works for
evaluating Tenders.

1.4 Evaluation and contract award Criteria

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

Preliminary examination for Determination of Responsiveness

The Procuring Entity will start by examining all tenders to ensure they meet in all respects the eligibility
criteria (including requirements in the qualification forms, tenderer's eligibility- confidential business
questionnaire) and other requirements in the ITT and that the tender is complete in all aspects in meeting
the requirements of “Part 2 - Procuring Entity's Requirements”, including checking for tenders with
unacceptable errors, abnormally low tenders, and abnormally high tenders. The Standard Tender
Evaluation Report for Goods and Works provides clear guidelines on how to deal with review of these
requirements. Tenders that do not pass the Preliminary Examination will not be considered further.

Evaluation
3.1 Technical Evaluation

In addition to the criteria listed in ITT 35.2(a) - c) the following factors shall apply:
No additional criteria
Tenders that fail technical evaluation will not be considered further.

3.2 Economic Evaluation

Price evaluation: in addition to the criteria listed in ITT 35.4 (a) – (e) the following criteria shall apply:

Alternative Completion Times, if permitted under ITT 13.2, will be evaluated as follows:
…………………………N/A………………………………………

Alternative technical solutions for specified parts

The acceptability of alternative technical solutions for parts of the facilities, if permitted under ITT 13.4,
will be determined as follows:
……………………………………N/A…………………………………………………

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TECHNICAL PROPOSAL

NO. REQUIREMENT
1. Site Organization
2. Method Statement
3. Mobilization Schedule
4. Construction Schedule
5. Contractor's Equipment
6. Personnel
7. Proposed Subcontractors for Major Items

Life Cycle Costs

[Lifecycle costing should be used when the costs of operation and/ or maintenance over the specified life
of the goods or works are estimated to be considerable in comparison with the initial cost and may vary
among different Tenders/proposals. It shall be evaluated on a net present value basis. When using lifecycle costing,
the Procuring Entity shall specify the following information:]

Since the operating and maintenance costs of the facilities being procured form a major part of the life
cycle cost of the facilities, these costs will be evaluated according to the principles given here after,
including the cost of spare parts for the initial period of operation stated below and based on prices
furnished by each Tenderer in Price Schedule Nos. 1 and 2, as well as on past experience of the Procuring
Entity or other Procuring Entity's similarly placed. Such costs shall be added to the Tender price for
evaluation. The operating and maintenance costs factors for calculation of the life cycle cost are:

Number of years for lifecycle: N/A

Operating costs depending on the functionality of the machine
Maintenance costs, including the cost of spare parts for the initial period of operation as indicated in
the specifications, and
iv) Discount rate: [insert discount rate in percent] to be used to discount
to present value all annual future costs calculated under (ii) and (iii) above for the period specified
in(i).

The price of recommended spare parts quoted in Price Schedule No.6 shall be considered for
evaluation.
Functional Guarantees of the Facilities

The minimum (or maximum) requirements stated in the Specification for functional guarantees required
in the Specification are:

Functional Guarantee Minimum (or Maximum, as appropriate)

Requirement
1. As specified in the detailed specifications
2.
3.
…

For the purposes of evaluation, for each percentage point that the functional guarantee of the proposed
Plant and Installation Services is below the norm specified in the Specification and in the above table, but
above the minimum acceptable levels also specified there in, an adjustment of.............. will be added to the
Tender price. If the drop below the norm or the excess above the minimum acceptable levels is less than
one percent, the adjustment will be appropriated accordingly.

Work, services, facilities, etc., to be provided by the Procuring Entity.

33
Where Tenders include the under taking of work or the provision of services or facilities by the Procuring
Entity in excess of the provisions allowed for in the Tendering document, the Procuring Entity shall assess
the costs of such additional work, services and/or facilities during the duration of the contract. Such costs
shall be added to the Tender price for evaluation.

Specific addition criteria the relevant evaluation method, if any, shall be as follows:

Any adjustments in price that result from the above procedures shall be added, for purposes of
comparative evaluation only, to arrive at an “Evaluated Tender Price.” Tender prices quoted by Tenderers
shall remain unaltered.

Multiple Contracts (ITT 35.6)

4.1 Multiple contracts will be permitted in accordance with ITT 35.4. Tenderers are evaluated on basisof
Lots and the lowest evaluated tenderer identified for each Lot. The Procuring Entity will select one Option
of the two Options listed below for award of Contracts.

OPTION1

If a tenderer wins only one Lot, the tenderer will be awarded a contract for that Lot, provided the tenderer
meets the Eligibility and Qualification Criteria for that Lot.

If a tenderer wins more than one Lot, the tender will be awarded contracts for all won Lots, provided the
tenderer meets the aggregate Eligibility and Qualification Criteria for all the Lots. The tenderer will be
awarded the combination of Lots for which the tenderer qualifies and the others will be considered for
award to second lowest the tenderers.

OPTION 2

The Procuring Entity will consider all possible combinations of won Lots [contract(s)] and determine the
combinations with the lowest evaluated price. Tenders will then be awarded to the Tenderer or Tenderers
in the combinations provided the tenderer meets the aggregate Eligibility and Qualification Criteria for all
the won Lots.
MARGIN OF PREFERENCE

5.1 If the TDS so specifies, the Procuring Entity will grant a margin of preference of 15% (fifteen percent)
to Tenderers offering goods manufactured, mined, extracted, grown, assembled or semi- processed in
Kenya. Goods assembled or semi-processed in Kenya shall have a local content of not less than 40%.

5.2 The margin of preference will be applied in accordance with, and subject to, the following provisions:
Tenderers applying for such preference on goods offered shall be asked to provide, as part of the data for
qualification, such information, including details of the goods produced in Kenya, so as to determine
whether, according to the classification established by the Procuring Entity, a particular category of goods
or group of goods qualifies for a margin of preference.
After Tenders have been received and reviewed by the Procuring Entity, goods offered in the responsive
Tenders shall be assessed to ascertain they are manufactured, mined, extracted, grown, assembled or semi-
processed in Kenya. Responsive tenders shall be classified in to the following groups:
Group A: Tenders offering goods manufactured in Kenya, for which (a) labor, raw materials, and
components from within Kenya account for more than forty (40) percent of the Ex-Works price; and the
production facility in which they will be manufactured or assembled has been engaged in manufacturing
or assembling such goods at least since the date of Tender submission date;
Group B: All other Tenders offering Goods manufactured in Kenya;
Group C: Tenders offering Goods manufactured outside Kenya that have been already imported or
that will be imported.

34
5.3 To facilitate this classification by the Procuring Entity, the tenderer shall complete whichever version
of the Price Schedule furnished in the Tendering document is appropriate, provided however, that the
completion of an in correct version of the Price Schedule by the Tenderer shall not result in rejection of its
Tender, but merely in the Procuring Entity's reclassification of the Tender into its appropriate Tender group.

5.4 The Tenders in each group will then be compared to determine the Tender with the lowest evaluated
cost in that group. The lowest evaluated cost Tender from each group shall then be comparedwith each
other and if as a result of this comparison a Tender from Group A or Group B is the lowest, it shall be
selected for the award.
5.5 If as a result of the preceding comparison, a Tender from Group C is the lowest evaluated cost, an
amount equal to or 15% of the respective tender price, including unconditional discounts and excluding
provisional sums, ifany, shall be added to the evaluated price offered in each tender from Group C. If the
tender from Group C is still the lowest tender, it shall be selected for award. If not, the lowest evaluated
tender from

Group A or B based on the first evaluation price shall be selected.

Alternative Tenders (ITT 13.1)

An alternative if permitted under ITT 13.1, will be evaluated as follows:

The Procuring Entity shall consider Tenders offered for alternatives as specified in Part 2- Procuring Entity's
requirements. Only the technical alternatives, if any, of the Tenderer with the Best Evaluated Tender
conforming to the basic technical requirements shall be considered by the Procuring Entity.

Post qualification and Contract award (ITT 39), more specifically,

In case the tender was subject to post-qualification, the contract shall be awarded to the lowest
evaluated tenderer, subject to confirmation of prequalification data, if so required.
In case the tender was not subject to post-qualification, the tender that has been determined to be the lowest
evaluated tenderer shall be considered for contract award, subject to meeting each of the following
conditions.
The Tenderer shall demonstrate that it has access to, or has available, liquid assets, unencumbered real
assets, lines of credit, and other financial means (independent of any contractual advance payment)
sufficient to meet the construction cash flow of Kenya Shillings 40,000,000
Minimum average annual construction turnover of Kenya Shillings 50,000,000, equivalent calculated as
total certified payments received for contracts in progress and/ or completed within the last 5 years.
At least one (1) similar contract (s) of a similar nature executed within Kenya or the East African
Community or abroad, that have been satisfactorily and substantially completed as a prime contractor, or
joint venture member or sub-contractor each of minimum value of Kenya shillings 40,000,000 or equivalent.
Contractor's Representative and Key Personnel, which are specified as
Contractors key equipment listed on the table “Contractor's Equipment” below and more specifically
listed as
[specify requirements for each lot as applicable]
Other conditions depending on their seriousness.

History of non-performing contracts:

Tenderer and each member of JV in case the Tenderer is a JV, shall demonstrate that Non-performance of
a contract did not occur because of the default of the Tenderer, or the member of a JV in the last 5 years.
The required information shall be furnished in the appropriate form.

Pending Litigation
Financial position and prospective long-term profitability of the Single Tenderer, and in the case the
Tenderer is a JV, of each member of the JV, shall remain sound according to criteria established with
respect to Financial Capability under Paragraph (i) above i fall pending litigation will be resolved against
the Tenderer. Tenderer shall provide information on pending litigations in the appropriate form.

35
Litigation History
There shall be no consistent history of court/ arbitral award decisions against the Tenderer, in the last 5
years. All parties to the contract shall furnish the information in the appropriate form about any litigation
or arbitration resulting from contracts completed or ongoing under its execution over the years specified.
A consistent history of awards against the Tenderer or any member of a JV may result in rejection of the
tender.

36
Qualification
2.24 Evaluation and Comparison of Tenders Stage I: Preliminary Evaluation
MANDATORY PRELIMINARY REQUIREMENTS

Responsive No. Requirements Respons

ive or
Non
Responsive
MR 1 Tender Security Kenya Shillings Five Hundred Thousand (Kshs. 500, 0 0 0
) valid for 149 days from the date of Tender. Opening and must be from a
reputable bank recognized by the Central Bank of Kenya or Insurance bond
from the firms approved by IRA
MR 2 Submission of two Tender documents securely bound (Book bound) and
clearly marked (original and (copy) by the tenderer. No loose or stapled
documents will be accepted.
MR 3 Bid document MUST be in original and copy and MUST be sequentially
serialized (paginated) back to back i n t h e c o r r e c t s e q u e n c e o f 1
, 2 , 3 , 4 … . . on every page including the table of content
MR 4 Must Submit a copy of the Certificate of incorporation or
Registration Certificate
MR 5 Must Submit a copy of Valid Tax Compliance Certificate, from Kenya Revenue
Authority (TCC Checker will be done)
MR 6 Tenderer Data Consent Form -Duly Filled, Stamped and Signed as per
attached form
MR 7 Must submit a dully filled up Tenderers Eligibility Confidential
Business Questionnaire, signed and stamped
MR 8 Must submit dully filled form of tender on company letterhead, signed
and stamped in the prescribed format in the tender document.
MR 9 Submission of valid CR12 or CR13 form showing the list of directors/
shareholding (issued within the last 12 months).
MR 10 Must submit proof of power of Attorney to the Authorized person to sign the
tender document where applicable.
MR 11 Valid copy of Current Single Business License or Evidence of renewal
MR 12 Must attach site visit certificate duly signed and stamped by authorized KNH
personnel.
MR 13 Must submit dully filled Certificate of Independent Tender
Determination, signed and stamped
MR 14 Must submit duly completed and signed self-declaration that the
person/tenderer is not debarred in the matter of the public procurement and
Asset Disposal Act
2015 (SD1) by the authorized signatory
MR 15 Must submit duly completed and signed self-declaration that the
person/tenderer is not engage in any corrupt or fraudulent practice by the
authorized signatory
MR 16 Must submit dully filled, signed and stamped Declaration and commitment to
the
code of ethics by the authorized signatory
MR 17 Bank Details Form duly signed and stamped by both the Tenderer and the
Bank
MR 18 Attach written Declaration by tenderer -Companies/ Institutions that that
neither of their Directors have participated in the same Tender as Individual
Tenderers, Joint Venture, Sole Proprietor or as a subcontractor
MR 19 Must attach a valid National Construction Authority NCA certificate category 5
and above for building works.( letter of application for registration whether
accompanied by proof of payment to the NCA 5 will not be accepted.

At this stage, the tenderer’s submission will either be responsive or non- responsive. The non-
responsive submissions in any of the above mandatory requirements will be eliminated from
37
the entire evaluation process and will not be considered further.

38
 2. TECHNICAL EVALUATION/ QUALIFICATION CRITERIA
Bidders will be evaluated first on the qualification criteria and those successful will proceed to the technical
evaluation stage.

i) The criteria for technical analysis will be as follows:

Evaluation Criterion Max. Score Score

1. Number of years in operation

1 mark for each year up to 10 years 10

2. Completed building projects of over Kshs. 10

million (must provide signed contract agreements/ LSOs/
certificates of completion as evidence) – Max. 5 Projects

4 Marks for each project 20

3. Team Qualifications (provide CVS and certificates in 10

related construction training for each category as follows:
Degree level - 5 marks
Diploma level - 3 marks
Technician level - 2 marks
4. Plant, equipment and transport vehicles owned by 10
the company (give no, type and capacity of
each and attach proof of ownership) or
attached leasing contracts)
2 Marks for each equipment listed with evidence – 5 No.
Max.
5. Financial Capacity (provide latest two years 10
financial statements 2022 & 2023 and 6 month certified
bank statements
a) 0-15 million turnover – 2 marks
b) 15-30 million turnover – 5 marks
c) >30 million turnover – 10 marks

6. Certified bank statement for 6 months 10

7. Work Injury Benefit (WIBA) Insurance Cover 15

8. Registration with National Construction Authority – 10

Building Works NCA 5
9. Tender document presentation & serialization 5

TOTAL 100

Bidders who score 80 marks and above to proceeding to the Financial Evaluation Stage.

Financial Evaluation

(a). Determination of evaluated price for each bid using the Following
i) There will be no corrections of arithmetic errors as per Public Procurement & Assets Disposal Act
2015 Section 82.

39
ii) Conversion of all tender to same currency using a uniform exchange rate prevailing at the Closing date of
the Tender.

iii) Application of any discount offered on the tender

iv) Establish if items quoted for are within prevailing market rates from the known retail outlets &
Public Procurement Regulatory Authority price index. A written undertaking that the prices shall remain
valid for 12 months from date of contract in line with the Public Procurement and Asset Disposal Act 2015
section 139(3).

(b) Ranking of Tenders according to their evaluated prices

All documents indicated above and all other technical documents required to qualify for the tender
participation should be submitted together with the bid on or before the closing date. Any bid not
accompanied by the documents shall be rejected as non-responsive.

POST QUALIFICATION DUE DILIGENCE

After ranking the tender, the Evaluation Committee will carry out a post Qualification Due diligence to determine

the Accuracyof information and documentation availed for Evaluation of the bid document.

Full Name…………………………Title or Designation........................... (Signature)…………………….

40
SECTION IV - TENDERING FORMS

FORM OF TENDER

INSTRUCTIONS TO TENDERERS

The Tenderer must prepare this Form of Tender on stationery with its letterhead clearly
showing the Tenderer’s complete name and business address.

All italicized text is to help Tenderer in preparing this form.

Tenderer must complete and sign and TENDERER'S ELIGIBILITY- CONFIDENTIAL BUSINESS
QUESTIONNAIRE, CERTIFICATE OF INDEPENDENT TENDER DETERMINATION and the SELF
DECLARATION OF THE TENDERER, all attached to this Form of Tender.

The Form of Tender shall include the following Forms duly completed and signed by the Tenderer.
Tenderer's Eligibility-Confidential Business Questionnaire
Certificate of Independent Tender
Determination Self-Declaration of
the Tenderer
Date of this Tender submission: [insert date (as day, month and year) of Tender submission]

• ITT No.: [insert number of ITT process] Alternative No.: [insert identification No if
this is a Tender for an alternative]
• To: [insert complete name of Procuring Entity]

No reservations: We have examined and have no reservations to the Tendering document, including
Addenda issued in accordance with ITT 8;

Eligibility: We meet the eligibility requirements and have no conflict of interest in accordance with ITT 4;

Tender-Securing Declaration: We have not been suspended nor declared ineligible by the Procuring Entity
based on execution of a Tender Securing Declaration or Proposal-Securing Declaration in Kenya in
accordance with ITT 4.7;
Conformity: We offer to provide design, supply and installation services in conformity with the
Tendering document of the following: [insert a brief description of the Plant, Design, Supply and
Installation Services];

Breakdown of the Tender Price

Item Description Amount (in Kshs)

1 PROPOSED DRAINAGE AND FLOOR WORKS AT KNH FAREWELL

HOME
TOTAL (KSHS)

41
 Tender Price: The total price of our Tender, excluding any discounts offered in item (f) below is: [Insert
one of the options below as appropriate]
Option1, in case of one lot: Total price is: [insert the total price of the Tender in words and figures,
indicating the various amounts and the respective currencies];
Or Option 2, in case of multiple lots: (a) Total price of each lot [insert the total price of each lot in
words and figures, indicating the various amounts and the respective currencies]; and (b) Total price
of all lots (sum of allots) [insert the total price of all lots in words and figures, indicating the various
amounts and the respective currencies];
Discounts: The discounts offered and the methodology for their application are:
The discounts offered are: [Specify in detail each discount offered.]
The exact method of calculations to determine the net price after application of discounts is shown below:
[Specify in detail the method that shall be used to apply the discounts];
Tender Validity Period: Our Tender shall be valid for the period specified in TDS 19.1 (as amended if
applicable) from the date fixed for the Tender submission deadline specified in TDS 23.1 (as amended if
applicable), and it shall remain binding upon us and may be accepted at any time before the expiration of
that period;

Performance Security: I four Tender is accepted; we commit to obtain a Performance Security in

accordance with the Tendering document;

One Tender Per Tenderer: We are not submitting any other Tender (s) as an individual Tenderer, and we
are not participating in any other Tender (s) as a Joint Venture member, and meet the requirements of ITT
4.3, other than alternative Tenders submitted in accordance with ITT 13;
Suspension and Debarment: We, along with any of our subcontractors, suppliers, consultants,
manufacturers, or service providers for any part of the contract, are not subject to, and not controlled by
any entity or individual that is subject to, a temporary suspension. Further, we are not ineligible under the
Kenya laws or official regulations or pursuant to a decision of the United Nations Security Council;

State-owned enterprise or institution: [select the appropriate option and delete the other] [We are not a
state- owned enterprise or institution]/ [We are a state-owned enterprise or institution but meet the
requirements of ITT4.6];
Commissions, gratuities and fees: We have paid, or will pay the following commissions, gratuities, or fees
with respect to the Tendering process or execution of the Contract: [insert complete name of each
Recipient, its full address, the reason for which each commission or gratuity was paid and the amount and
currency of each such commission or gratuity]

Name of Recipient Address Reason Amount

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

Binding Contract: We understand that this Tender, together with your written acceptance thereof
included in your Form of Acceptance, shall constitute a binding contract between us, until a formal contract is
prepared and executed; Not Bound to Accept: We understand that you are not bound to accept the lowest
evaluated cost Tender, the Best Evaluated Tender or any other Tender that you may receive; and
Fraud and Corruption: We hereby certify that we have taken steps to ensure that no person acting for
us or on our behalf engages in any type of Fraud and Corruption.
Collusive practices: We hereby certify and confirm that the tender is genuine, non-collusive and made with
the intention of accepting the contract if awarded. To this effect we have signed the “Certificate of
Independent tender Determination” attached below.
Code of Ethical Conduct: We undertake to adhere by the Code of Ethical Conduct for Persons Participating

42
in Public Procurement and Asset Disposal Activities in Kenya, copy available from www.pppra.go.ke during
the procurement process and the execution of any resulting contract.

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

Tenderer‟s Eligibility; Confidential Business Questionnaire – to establish we are not in any conflict to interest.

Certificate of Independent Tender Determination – to declare that we completed the tender without
colluding with other tenderers.

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

Declaration and commitment to the code of ethics for Persons Participating in Public Procurement and Asset Disposal
Activities in Kenya,

Further, we confirm that we have read and understood the full content and scope of fraud and corruption
as informed in “Appendix 1- Fraud and Corruption” attached to the Form of Tender.
Name of the Tenderer: *[insert complete name of person signing the Tender]
Name of the person duly authorized to sign the Tender on behalf of the Tenderer: **[insert complete
name o f person duly authorized to sign the Tender]
Title of the person signing the Tender: [insert complete title of the person signing the Tender]
Signature of the person named above: [insert signature of person whose name and capacity are shown above]
Date signed [insert date of signing] day of [insert month], [insert year].

43
TENDERER'S ELIGIBILITY - CONFIDENTIAL BUSINESS QUESTIONNAIRE

Instruction to Tenderer

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

Tenderer’s details
ITEM DESCRIPTION
1 Name of the Procuring Entity Kenyatta National Hospital
2 Reference Number of the Tender KNH/T/91/2024-2025
3 Date and Time of Tender Opening 10/10/2024
4 Name of the Tenderer
5 Full Address and Contact Details of the Tenderer.
1. Country
2. City
3. Location
4. Building
5. Floor
6. Postal Address
7. Name and email of contact person.
6 Current Trade License Registration Number and
Expiring date
7 Name, country and full address (postal and
physical
addresses, email, and telephone number) of
Registering Body/Agency
8 Description of Nature of Business
9 Maximum value of business which the Tenderer
handles.
10 State if Tenders Company is listed in stock
exchange,
give name and full address (postal and physical
addresses, email, and telephone number) of

state which stock exchange

11 BANK DETAILS
BANK NAME:
BANK ACCOUNT NO:
(in case of change of bank details
provide written communication after
contract signing)

General and Specific Details

Sole Proprietor, provide the following details.

Name in Age
full
Nationality Country of Origin

Citizenship
Partnership, provide the following details.
Names of Partners Nationality Citizenship % Shares owned
1
2
3

44
Registered Company, provide the following details.

Private or public Company

State the nominal and issued capital of the Company: -

Nominal Kenya Shillings (Equivalent)

Issued Kenya Shillings (Equivalent)

Give details of Directors as follows.

Names of Director Nationality Citizenship % Shares owned

1
2
3

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

i) Are there any person/ persons in ........................................... (Name of Procuring Entity)
who has/ have an interest or relationship in this firm?

Yes/No ............................... If yes, provide details as follows.

Names of Person Designation in the Interest or Relationship with

Procuring Entity Tenderer
1
2
3

Conflict of interest disclosure

Type of Conflict Disclosure If YES provide details of the
YES OR NO relationship with Tenderer
1 Tenderer is directly or indirectly controls, is
controlled by or is under common control with another
tenderer.

2 Tenderer receives or has received any direct or

indirect subsidy from another tenderer.
3 Tenderer has the same legal representative as
another tenderer
4 Tender has a relationship with another tenderer,
directly or through common third parties, that puts it in a position
to influence the tender of another tenderer, or influence the
decisions of the Procuring Entity regarding this tendering process.

5 Any of the Tenderer’s affiliates participated as a

consultant in the preparation of the design or technical
specifications of the works that are the subject of the
tender.

6 Tenderer would be providing goods, works, non-

consulting services or consulting services during
implementation of the contract specified in this Tender
Document.

7 Tenderer has a close business or family relationship

with a professional staff of the Procuring Entity who
are directly or indirectly involved in the preparation of the Tender
document or specifications of the
Contract, and/or the Tender evaluation process of such contract.

45
 Type of Conflict Disclosure If YES provide details of the
YES OR NO relationship with Tenderer
8 Tenderer has a close business or family relationship
with a professional staff of the Procuring Entity
who
would be involved in the implementation or
supervision of the such Contract.
9 Has the conflict stemming from such relationship
stated in item 7 and 8 above been resolved in a
manner acceptable to the Procuring Entity
throughout the tendering process and execution of
the Contract.
Certification

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

Full Name

Title or Designation

(Signature) (Date)

46
CERTIFICATE OF INDEPENDENT TENDER DETERMINATION

I, the undersigned, in submitting the accompanying Letter of Tender to the

_ _ [Name of
Procuring Entity] for: [Name and
number of tender] in response to the request for tenders made by: [Name of
Tenderer] do hereby make the following statements that I certify to be true and complete in
every respect:

I certify, on behalf of [Name

of Tenderer] that:

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

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

3. I am the authorized representative of the Tenderer with authority to sign this

Certificate, and to submit the Tender on behalf of the Tenderer;

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

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

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

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

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

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

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

Name…………………Title………………….Signature ………………….Stamp……………………….
Date

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

SELF DECLARATION FORMS

FORM SD1

SELF DECLARATION THAT THE PERSON /TENDERER IS NOT DEBARRED IN THE MATTER OF
THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT 2015.

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

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

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

THAT the afore said Bidder, its directors and subcontractors have not been debarred from
participating in procurement proceeding under Part IV of the Act.

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

………………………………… …………………………… ………………………

(Title) (Signature) (Date)

Bidder's Official Stamp

FORM SD2

SELF DECLARATION THAT THE PERSON/TENDERER WILL NOT ENGAGE IN ANY CORRUPT OR
FRAUDULENT PRACTICE.

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

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

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

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

THAT the aforesaid Bidder, its servants and/ or agents/ subcontractor shave not offered any inducement
to any member of the Board, Management, Staff and/ or employees and/ or agents of

…............................. (name of the procuring entity).

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

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

………………………………… …………………………… ………………………

(Title) (Signature) (Date)

Bidder's Official Stamp

DECLARATION AND COMMITMENT TO THE CODE OF ETHICS

I, ......................................................................................................................... (person) on behalf of

(Name of the Business/ Company/ Firm) ......................................................... declare that I have read
and fully understood the contents of the Public Procurement & Asset Disposal Act, 2015, Regulations and
the Code of Ethics for persons participating in Public Procurement and Asset Disposal and my responsibilities
under the Code.

I do hereby commit to abide by the provisions of the Code of Ethics for persons participating in Public
Procurement and Asset Disposal.

Name of Authorized signatory..............................................................................................................................

Sign......................................................................................................................................................................

Position................................................................................................................................................................

Office address............................................................................Telephone...........................................................

E-mail...................................................................................................................................................................

Name of the Firm/Company.................................................................................................................................

Date.............................................................................................................................................

(Company Seal/ Rubber Stamp where applicable)

Witness

Name........................................................................................................................................................

Sign............................................................................................................................................................

Date..........................................................................................................................................................

55
 Price schedule summary

Price Adjustment
Where the Contract Period (excluding the Defects Liability Period) exceeds eighteen (18) months, it is normal procedure that
prices payable to the Contractor shall be subject to adjustment during the performance of the Contract to reflect changes
occurring in the cost of labor and material components. In such cases the Tendering document shall include in this form a
formula of the following general type, pursuant to SCC Sub-Clause11.2.

Where Contracts are of a shorter duration than eighteen (18) months or in cases where there is to be no Price Adjustment, the
following provision shall not be included. Instead, it shall be indicated under this form that the prices are to remain firm and
fixed for the duration of the Contract.

1Specify currency in accordance ITT with 18. Create and use as many columns for Foreign Currency requirement as
there are foreign currencies

56
Sample Price Adjustment Formula

If in accordance with GCC 11.2, prices shall be adjustable, the following method shall be used to calculate
the price adjustment:

Prices payable to the Contractor, in accordance with the Contract, shall be subject to adjustment during
performance of the Contract to reflect changes in the cost of labor and material components, in
accordance with the following formula:
L1 M 1
P1 P (a b c P0

L0 M0

P1 =adjustment amount payable to the

Contractor

P0 =Contract price (base price)

a =percentage of fixed element in Contract price (a=%)
b =percentage of labor component in Contract price (b=%)
c =percentage of material and equipment component in Contract price (c=%)
L0,L1 =labor indices applicable to the appropriate industry in the country of origin on the base date and
the date
For adjustment, respectively
M0,M1 material and equipment indices in the country of origin on the base date and the date for
= adjustment,

respectively

N.B. a + b + c= 100%.

Conditions Applicable to Price Adjustment

The Tenderer shall indicate the source of labor, source of exchange rate and materials indices and the
base date indices in its Tender.

Item Source of Indices Used Base Date Indices.

The base date shall be the date thirty (30) days prior to the Tender closing date.
The date of adjustment shall be the mid-point of the period of manufacture or installation of
component or Plant. The following conditions shall apply:

No price increase will be allowed beyond the original delivery date unless covered by an extension of time
awarded by the Procuring Entity under the terms of the Contract. No price increase will be allowed for
periods of delay for which the Contractor is responsible. The Procuring Entity will, however, be entitled to
any price decrease occurring during such periods of delay.

If the currency in which the Contract price, P0, is expressed is different from the currency of the country
of origin of the labor and/or materials indices, a correction factor will be applied to avoid incorrect
adjustments of the Contract price. The correction factor shall be: Z0/Z1, were,
Z0=the number of units of currency of the origin of the indices which equal to one unit of the
currency of the Contract Price P0 on the Base date, and
Z1=the number of units of currency of the origin of the indices which equal to one unit of the
currency of the Contract Price P0 on the Date of Adjustment.

No price adjustment shall be payable on the portion of the Contract price paid to the Contractor as
an advance payment.

57
Contractor's Equipment

Form EQU

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

Item of equipment

Equipment Name of manufacturer Model and power rating

information
Capacity Year of manufacture

Current status Current location

Details of current commitments

Source Indicate source of the equipment

Owned Rented Leased Specially manufactured

Omit the following information for equipment owned by the Tenderer.

Owner Name of owner

Address of owner

Telephone Contact name and title

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

Functional Guarantees

The Tenderer shall copy in the left column of the table below, the identification of each functional guarantee
required in the Specification and stated by the Procuring Entity in para.1.2 (c) of Section III, Evaluation
and Qualification Criteria, and in the right column, provide the corresponding value for each functional
guarantee of the proposed plant and equipment.

Required Functional Guarantee Value of Functional Guarantee of the Proposed Plant and Equipment
1.
2.
3.
…

58
Personnel

Form PER -1- Proposed Personnel

Tenderers should provide the names of suitably qualified personnel to meet the specified requirements
stated in Section III. The data on their experience should be supplied using the Form below for each
candidate.

1. Title of position*

Name
2. Title of position*

Name

3. Title of position*

Name

4. Title of position*

Name

59
 *As listed in Section III.

Form PER-2

Resume of Proposed Personnel

Name of Tenderer

Position
Personnel information Name Date of birth

Professional qualifications
Present employment Name of Procuring Entity
Address of Procuring Entity
Telephone Contact (manager / personnel
officer)
Fax E-mail

Job title Years with present Procuring Entity

Summarize professional experience over the last 20 years, in reverse chronological order.Indicate
particular technical and managerial experience relevant to the project.

From To Company / Project / Position / Relevant technical and management

experience

60
Proposed Subcontractors for Major Items of Plant and Installation Services

A list of major items of Lift and Installation Services is provided below.

The following Subcontractors and/or manufacturers are proposed for carrying out the item of the facilities indicated.
Tenderers are free to propose more than one for each item

Major Items of Plant Proposed Subcontractors/Manufacturers Nationality

and Installation
Services

Others - Time Schedule

(to be used by Tenderer when alternative Time for Completion is invited in ITT 13.2)

Tenderers Qualification without prequalification

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

61
Form ELI 1.1

Tenderer Information Sheet

Date:

ITT No.:

Tenderer’s Legal Name

In case of JV, legal name of each party:

Tenderer’s actual or intended Country of Registration:

Tenderer’s Year of Registration:

Tenderer’s Legal Address in Country of Registration:

Tenderer’s Authorized Representative Information Name:

Address:
Telephone/Fax
numbers:
Email Address:

Attached are copies of original documents of:

Articles of Incorporation or Registration of firm named in 1, above, in accordance with ITT 4.1 and ITT
4.4. In case of JV, Form of intent to form JV including a draft agreement, or JV agreement, in
accordance with ITT 4.1 and ITT 11.2.
In case of state-owned enterprise or institution from Kenya, documents establishing legal and financial
autonomy and compliance with the principles of commercial law, and is not under the supervision of the
Procuring Entity in accordance with ITT 4.6.

Please note that a written authorization needs to be attached to this sheet as required by ITT 21.3

62
Form ELI 1.2

Party to JV Information Sheet

Date:

ITT No.:

Tenderer’s Legal Name:

JV‟s Party legal name:

JV‟s Party Country of Registration:

JV‟s Party Year of Registration:

JV‟s Party Legal Address in Country of Registration:

JV‟s Party Authorized

Representative Information
Name: Address:
Telephone/Fax
numbers:
Email Address:
Attached are copies of original documents of:
Articles of Incorporation or Registration of firm named in 1, above, in accordance with ITT 4.1 and
ITT 4.4.In case of state-owned enterprise or institution from Kenya, documents establishing legal and
financial autonomy and compliance with the principles of commercial law and is not under the
supervision of the Procuring Entity, in accordance with ITT 4.6.

63
 Form CON – 2
Historical Contract Non-Performance
Tenderer's Legal Name:

Date:
JV Member Legal Name:
ITT No.:

Non-Performed Contracts in accordance with Section III, Evaluation and Qualification Criteria
Contract non-performance did not occur since 1st January [insert year] specified in Section III,
Evaluation and Qualification Criteria, Sub-Factor 2.1.
Contract(s) not performed since 1st January [insert year] specified in Section III, Evaluation and
Qualification Criteria, requirement 2.1
Year Non- performed Contract Identification Total Contract
portion of Amount (current
contract value, currency,
exchange rate and
K Shilling
equivalent)
[insert [insert amount Contract Identification: [indicate complete contract [insert amount]
name/
year] and percentage] number, and any other identification]
Name of Procuring Entity: [insert full name]
Address of Procuring Entity: [insert City/
street/building/floor number/room number/country]
Reason(s) for nonperformance: [indicate main
reason(s)]
Pending Litigation, in accordance with Section III, Evaluation and Qualification Criteria
No pending litigation in accordance with Section III, Evaluation and Qualification Criteria, Sub-
Factor
2.3 as indicated below.
Year of Amount in Contract Identification
Total Contract Amount
dispute dispute (currency) (currency), K Shilling
Equivalent (exchange rate)
Contract Identification:
Name of Procuring Entity:
Address of Procuring Entity:
Matter in dispute:
Party who initiated the dispute:

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

64
Litigation History in accordance with Section III, Evaluation and Qualification Criteria

No Litigation History in accordance with Section III, Evaluation and Qualification Criteria, Sub-Factor
2.4.

Year of Amount in Contract Identification Total Contract Amount

dispute dispute (currency), K Shilling
(currency)
Equivalent (exchange rate)
Litigation History in accordance with Section III, Evaluation and Qualification Criteria, Sub-
Factor 2.4
as indicated below.
[insert [insert Contract Identification: [indicate [insert amount]
complete
year] percentage] contract name, number, and any other
identification]
Name of Procuring Entity: [insert full
name]
Address of Procuring Entity: [insert City/
street/building/floor number/room
number/country]
Matter in dispute: [indicate main issues
in
dispute]
Party who initiated the dispute:
[indicate
“Procuring Entity” or “Contractor”]
Reason(s) for Litigation and award
decision
[indicate main reason(s)]

65
Form CCC
Current Contract Commitments / Works in Progress

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

Name of contract Procuring Value of outstanding Estimated Average monthly invoicing

Entity, work
contact (current K Shilling completion date over last six months
address/tel equivalent) (K Shilling /month)
1.

2.

3.

4.

5.

etc.

66
Form FIN – 3.1
Financial Situation

Historical Financial Performance

Tenderer’s Legal Name: Date:

JV Member Legal Name: ITT No.:
To be completed by the Tenderer and, if JV, by each
member

Financial Historic information for previous ( ) years

information in (Kenya Shilling equivalent in
000s)
Kenya Shilling
equivalent
Year 1 Year 2 Year 3 Year … Year n Avg. Avg.
Ratio

Information from Balance Sheet

Total Assets (TA)

Total Liabilities (TL)

Net Worth (NW)

Current Assets (CA)

Current Liabilities
(CL)

Information from Income Statement

Total Revenue (TR)

Profits Before Taxes

(PBT)

Attached are copies of financial statements (balance sheets, including all related notes, and income
statements) for the years required above complying with the following conditions:
Must reflect the financial situation of the Tenderer or member to a JV, and not sister or parent

companies. Historic financial statements must be audited by a certified accountant.

Historic financial statements must be complete, including all notes to the financial statements.
Historic financial statements must correspond to accounting periods already completed and
audited (no statements for partial periods shall be requested or accepted).

67
Form FIN - 3.2

Average Annual Turnover

Tenderer's Legal Name: Date:

JV Member Legal Name: ITT No.:

Annual turnover data

Year Amount and Currency KSHILLING equivalent

*Average
Annual
Turnover

*Average annual turnover calculated as total certified payments received for work in progress or
completed, divided by the number of years specified in Section III, Evaluation Criteria, Sub-Factor 2.3.2.

Form FIN3.3

Financial Resources

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

Source of financing Amount (Kenya Shilling equivalent)

1.

2.

3.

4.

68
Form EXP 4.1

General Experience

Tenderer's Legal Name:

JV Member Legal Name:

ITT No.:

Date:

Starting Ending Month / Contract Identification Role of

Month / Year Year Years*
Tenderer
Contract name:
Brief Description of the Works performed by the
Tenderer:
Name of Procuring Entity:
Address:
Contract name:
Brief Description of the Works performed by the
Tenderer:
Name of Procuring Entity:
Address:
Contract name:
Brief Description of the Works performed by the
Tenderer:
Name of Procuring Entity:
Address:
Contract name:
Brief Description of the Works performed by the
Tenderer:
Name of Procuring Entity:
Address:
Contract name:
Brief Description of the Works performed by the
Tenderer:
Name of Procuring Entity:
Address:
Contract name:
Brief Description of the Works performed by the
Tenderer:
Name of Procuring Entity:
Address:
*List calendar year for years with contracts with at least nine (9) months activity per year starting with the earliest
year
Form EXP –4.2(a)

Specific Experience

Tenderer's Legal Name:

JV Member Legal Name:

69
 Similar Contract No. [insert specific number] of [total
Information
number of contracts] required
Description of the similarity in accordance with Sub-
Factor
4.2a) of Section III:

Amount

Physical size

Complexity

Methods/Technology

Physical Production Rate

Form EXP –4.2(b)

Specific Experience in Key Activities

Tenderer’s Legal Name: Date:

JV Member Legal Name: ITT No.:
Subcontractor’s Legal Name: _

Information
Contract Identification
Award date
Completion
date
Role in Contract Subcontractor
Contractor Managementn
Contractor

Total contract amount KSHILLING

If member in a JV or subcontractor,
specify participation of total % KSHILLING
contract
Amount
Procuring Entity’s Name:
Address:

Telephone/fax
number: E-
mail:
67
FORM OF TENDER SECURITY-[Option 1–Demand Bank Guarantee]

Beneficiary:
Request for Tenders No:

Date:
TENDER GUARANTEE No.:
Guarantor:

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

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

supported by a Tender guarantee.

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

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

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

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

Consequently, any demand for payment under this guarantee must be received by us at the office
indicated above nor before that date.

[signature(s)]

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

68
FORMAT OF TENDER SECURITY [Option 2–Insurance Guarantee]

TENDER GUARANTEE No.:

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

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

Sealed with the Common Seal of the said Guarantor this day of 20 .

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

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

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

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

4. This guarantee will expire: (a) if the Applicant the successful Tenderer, upon our receipt of
is copies

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

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

[Date ] [Signature of the Guarantor]

[Witness] [Seal]

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

69
TENDER-SECURING DECLARATION FORM {r 46 and 155(2)}

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

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

Tender
Submission] Tender [insert number of tendering process]
No.:

To: [insert complete name of

Purchaser] I/We, the under signed, declare that:

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

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

I/ We understand that this Tender Securing Declaration shall expire if we are not the successful
Tenderer(s), upon the earlier of:
Our receipt of a copy of your notification of the name of the successful
Tenderer; or Thirty days after the expiration of our Tender.

I/ We understand that if I am/ we are/ in a Joint Venture, the Tender Securing Declaration must be
in the name of the Joint Venture that submits the bid, and the Joint Venture has not been legally
constituted at the time of bidding, the Tender Securing Declaration shall be in the names of all
future partners as named in the letter of intent.

Signed:
.............................................................................................................................................................................

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

. ..................................................................................... Name:

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

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

Dated on.................................................................day of ....................................... [Insert date of signing]

Seal or stamp

70
MANUFACTURER'S AUTHORIZATION FORM

Date:

ITT No.:

To:

WHEREAS
We , who are official manufacturers o , having factories at
, do hereby authorize to submit a Tender the purpose of
which
is to provide the following goods, manufactured by us , and to subsequently negotiate and
sign the Contract.

We hereby extend our full guarantee and warranty in accordance with Clause 27 of the General
Conditions, with respect to the goods offered by the above firm.

Signed:

Name:

Title:

Duly authorized to sign this Authorization on behalf of:

Dated on day of ,

71
 TENDERER DATA CONSENT FORM

Tender

Number:

Tender Description: _
Kenyatta National Hospital is committed to processing your personal information in
accordance with the Hospital’s Data Protection Policy, Data Protection Act, 2019 and its
Regulations.
The personal data submitted in the tender as detailed will therefore be processed in line with
the relevant Data Protection, Policies, Laws and Regulations in the way(s) and purpose(s)
detailed inthis Data Subject Consent Form.
I/we _hereby give explicit consent to
processing of my personal data by Kenyatta National Hospital for the purposes of
compliance with the Data Protection Act, 2019.

Signed BY:

Name: (tenderers name): _ Signature: Date: Stamp:

72
Telegram: “MEDSUP, ”Nairobi KENYATTANATIONALHOSPITAL
Tel.: 2726300-9 P.O. Box 20723- 00202-KNH
Fax: 2725272 NAIROBI

BANK DETAILS FORM

TENDER NUMBER:

TENDER DESCRIPTION:

PERSON AUTHORIZED TO SIGN

THE TENDER AS PER POWER OF
ATTORNEY OR DELEGATION TO
SIGN:

INSTITUTION/COMPANY
NAME:

ADDRESS OFFICIAL STAMP

(1)
(2)
AUTHORIZED PERSONS NAME

POSITION

EMAIL ADDRESS

TELEPHONE NO.

SIGNATURE

DATE

ACCOUNT NO.:

BANK NAME: BANK CODE

BRANCH NAME: BRANCH CODE

BANKERS CONFIRMATION THAT ACCOUNT DETAILS ARE AS STATED ABOVE

AUTHORISED SIGNATORY: 1) 2)

BANKERS STAMP:

73
PART 2 - PROCURING ENTITY'S
REQUIREMENTS

74
 BILL OF
QUANTITIES
PROPOSED RENOVATION WORKS, AT KENYATTA NATIONAL HOSPITAL TO AUTOPSY SECTION (ALL
PROVISIONAL)

Item Description Qty Unit Rate Amount (Kshs.)

FLOORING

A Hack out existing floor paving 855 SM -

including skirting to receive new
finishes and cart away debris from
site

B Hack into existing concrete floor to 60 SM -

receive new 150mm drainage pipe,
make good and cart away
debris from site

C Make good all disturbed floor and 880 SM -

wall surfaces resulting from
demolition works

D Acid-clean existing terrazzo floor and 796 SM -

polish the surface to the satisfaction
of Project manager.

E 34mm bed finished to receive 190 SM -

Ceramic and terrazzo flooring (m.s)

F Ditto but smooth and hard trowelled 695 SM -

to receive Epoxy flooring(m.s)

G Extra over screeding for bonding, 855 SM -

hardener and rapid curing
admixture

H Supply and fix 400 x 400 x 8mm 160 SM -

SAJ Ceramics or other equal floor
tiles

I Ditto but 150mm high skirting 113 LM -

J 30 x 30mm aluminium threaded 60 LM -

angle protection to
steps

Item Description Qty Unit Rate Amount (Kshs.)

Page 1
 K Grind and blow-torch surfaces, 695 SM -
Supply, prepare and apply 3mm
self-levelling Epoxy flooring spike
roller applied, complete with and
including epoxy mortar and primer

L Ditto but 100mm high skirting 280 LM -

M Supply and lay Terrazzo flooring to 30 SM -

match the existing

N Ditto but 100mm high skirting 22 LM -

MAIN SUMMARY (COLLECTIONS)

Subtotal 1 -

Add preliminaries @ 5% of Sub-total -

1

Subtotal 2 -

Add contingency @ 5% of Sub-total -

2

Subtotal 3 -

Add 16% VAT -

Total Cost (16% VAT Inclusive) -

Inser

Page 1
80
PART 3 – CONDITIONS OF CONTRACT AND CONTRACTFORMS

80
GENERAL CONDITIONS OF CONTRACT

Contract and Interpretation

Definitions

1.1 The following words and expressions shall have the meanings here by assigned to them:

“Contract” means the Contract Agreement entered into between the Procuring Entity and the
Contractor, together with the Contract Documents referred to there in; they shall constitute the
Contract, and the term “the Contract” shall in all such documents be construed accordingly.

“Contract Documents” means the documents listed in Article 1.1 (Contract Documents) of the Contract
Agreement (including any amendments thereto).
“GCC” means the General Conditions of Contract hereof. “SCC” means the Special
Conditions of Contract.
“day” means calendar day. “year” means 365 days. “month” means calendar month.

“Party” means the Procuring Entity or the Contractor, as the context requires, and “Parties” means both of
them.

“Procuring Entity” means the public entity named as such in the SCC and includes the legal
successors or permitted assigns of the Procuring Entity.

“Project Manager” means the person appointed by the Procuring Entity in the manner provided
in GCC Sub- Clause 17.1 (Project Manager) hereof and named as such in the SCC to perform the
duties delegated by the Procuring Entity.

“Contractor” means the person(s) whose Tender to perform the Contract has been accepted by the
Procuring Entity and is named as Contractor in the Contract Agreement, and includes the legal
successors or permitted assigns of the Contractor.

“Contractor's Representative” means any person nominated by the Contractor and approved by the
Procuring Entity in the manner provided in GCC Sub-Clause 17.2 (Contractor's Representative and
Construction Manager) here of to perform the duties delegated by the Contractor.

“Construction Manager” means the person appointed by the Contractor's Representative in themanner
provided in GCC Sub-Clause 17.2.4.

“Subcontractor,” including manufacturers, means any person to whom execution of any part of the
Facilities, including preparation of any design or supply of any Plant, is sub-contracted directly or
indirectly by the Contractor, and includes its legal successors or permitted assigns.

“Dispute Board” (DB) means the person or persons named as such in the SCC appointed by
agreement between the Procuring Entity and the Contractor to make a decision with respect to any
dispute or difference between the Procuring Entity and the Contractor referred to him or her by the
Parties pursuant to GCC Sub-Clause 46.1 (Dispute Board) hereof.

“Contract Price” means the sum specified in Article 2.1 (Contract Price) of the Contract Agreement,
subject to such additions and adjustments there to or deductions there from, as may be made
pursuant to the Contract.

“Facilities” means the Plant to be supplied and installed, as well as all the Installation Services to be
carried out by the Contractor under the Contract.

74
 “Plant” means permanent plant, equipment, machinery, apparatus, materials, articles and things of
all kinds to be provided and incorporated in the Facilities by the Contractor under the Contract
(including the spare parts to be supplied by the Contractor under GCC Sub-Clause7.3 here of), but
does not include Contractor's Equipment.

“Installation Services” means all those services ancillary to the supply of the Plant for the Facilities,
to be provided by the Contractor under the Contract, such as transportation and provision of marine
or other similar insurance, inspection, expediting, site preparation works (including the provision and
use of Contractor's Equipment and the supply of all construction materials required), installation,
testing, pre- commissioning, commissioning, operations, maintenance, the provision of operations
and maintenance manuals, training, etc…as the case may require.

“Contractor's Equipment” means all facilities, equipment, machinery, tools, apparatus, appliances
or things of every kind required in or for installation, completion and maintenance of Facilities that
are to be provided by the Contractor, but does not include Plant, or other things intended to form
or forming part of the Facilities.

“Country of Origin” means the countries and territories eligible as elaborated in the SCC.

“Site” means the land and other places upon which the Facilities are to be installed, and such other
land or places as may be specified in the Contract as forming part of the Site.

“Effective Date” means the date of fulfillment of all conditions stated in Article 3 (Effective Date) of
the Contract Agreement, from which the Time for Completion shall be counted.

“Time for Completion” means the time within which Completion of the Facilities as a whole (or of
a part of the Facilities where a separate Time for Completion of such part has been prescribed) is to
be attained, as referred to in GCC Clause8 and in accordance with the relevant provisions of the
Contract.

“Completion” means that the Facilities (or a specific part thereof where specific parts are specified
in the Contract) have been completed operationally and structurally and put in a tight and clean
condition, that all work in respect of Pre-commissioning of the Facilities or such specific part thereof
has been completed, and that the Facilities or specific part thereof are ready for Commissioning as
provided in GCC Clause 24 (Completion) hereof.

“Pre-commissioning” means the testing, checking and other requirements specified in the Procuring
Entity's Requirements that are to be carried out by the Contractor in preparation for Commissioning
as provided in GCC Clause24 (Completion) hereof.

“Commissioning” means operation of the Facilities or any part thereof by the Contractor following
Completion, which operation is to be carried out by the Contractor as provided in GCC Sub- Clause
25.1 (Commissioning) hereof, for the purpose of carrying out Guarantee Test(s).

“Guarantee Test(s)” means the test(s) specified in the Procuring Entity's Requirements to be carried
out to ascertain whether the Facilities or a specified part thereof is able to attain the Functional
Guarantees specified in the Appendix to the Contract Agreement titled Functional Guarantees, in
accordance with the provisions of GCC Sub-Clause25.2 (Guarantee Test) hereof.

“Operational Acceptance” means the acceptance by the Procuring Entity of the Facilities (or any
part of the Facilities where the Contract provides for acceptance of the Facilities in parts), which
certifies the Contractor's fulfillment of the Contract in respect of Functional Guarantees of the
Facilities (or the relevant part thereof) in accordance with the provisions of GCC Clause 28
(Functional Guarantees) hereof and shall include deemed acceptance in accordance with GCC
Clause 25 (Commissioning and Operational Acceptance) hereof.

75
 “Defect Liability Period” means the period of validity of the warranties given by the Contractor
commencing at Completion of the Facilities or a part thereof, during which the Contractor is
responsible for defects with respect to the Facilities (or the relevant part thereof) as provided in
GCC Clause 27(Defect Liability) hereof.

“Notice of Dissatisfaction” means the notice given by either Party to the other under Sub-Clause
46.4 indicating its dissatisfaction and intention to commence arbitration.

Contract Documents

2.1 Subject to Article 1.2 (Order of Precedence) of the Contract Agreement, all documents forming part of
the Contract (and all parts thereof) are intended to be correlative, complementary and mutually
explanatory. The Contract shall be read as a whole.

Interpretation

3.1 In the Contract, except where the context requires otherwise:

Words indicating one gender include all genders;
words indicating the singular also include the plural and words indicating the plural also
include the singular;
provisions including the word “agree,” “agreed,” or “agreement” require the
agreement to be recorded in writing;
the word “tender” is synonymous with “Tender,” “tenderer,” with “Tenderer,”
and “tender documents” with “Tendering Document,” and
“written” or “in writing” means hand-written, type-written, printed or
electronically made, and resulting in a permanent record.

The marginal words and other headings shall not be taken in to consideration in the
interpretation of these Conditions.

3.2 Incoterms
Unless inconsistent with any provision of the Contract, the meaning of any trade term and the
rights and obligations of Parties thereunder shall be as prescribed by Incoterms.

Incoterms means international rules for interpreting trade terms published by the International
Chamber of Commerce (latest edition), 38 C ours Albert 1er, 75008 Paris, France.

3.3 Entire Agreement

3.3.1 Subject to GCC Sub-Clause 16.4 hereof, the Contract constitutes the entire agreement between
the Procuring Entity and Contractor with respect to the subject matter of Contract and supersedes
all communications, negotiations and agreements (whether written or oral) of Parties with respect
there to made prior to the date of Contract.

3.4 Amendment
No amendment or other variation of the Contract shall be effective unless it is in writing, is
dated, expressly refers to the Contract, and is signed by a duly authorized representative of each
Party hereto.

3.5 Independent Contractor

The Contractor shall be an independent contract or performing the Contract. The Contract does
not create any agency, partnership, joint venture or other joint relationship between the Parties

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 hereto. Subject to the provisions of the Contract, the Contractor shall be solely responsible for the
manner in which the Contract is performed. All employees, representatives or Subcontractors
engaged by the Contractor in connection with the performance of the Contract shall be under the
complete control of the Contractor and shall not be deemed to be employees of the Procuring
Entity, and nothing contained in the Contractor in any subcontract awarded by the Contractor
shall be construed to create any contractual relationship between any such employees,
representatives or Subcontractors and the Procuring Entity.

3.6 Non-Waiver

3.6.1 Subject to GCC Sub-Clause 3.6.2 below, no relaxation, forbearance, delay or indulgence by either
Party in enforcing any of the terms and conditions of the Contract or the granting of time by either
Party to the other shall prejudice, affect or restrict the rights of that Party under the Contract, nor
shall any waiver by either Party of any breach of Contract operate as waiver of any subsequent
or continuing breach of Contract.

3.6.2 Any waiver of a Party's rights, powers or remedies under the Contract must be in writing, must
be dated and signed by an authorized representative of the Party granting such waiver, and must
specify the right and the extent to which it is being waived.

3.7 Severability
If any provision or condition of the Contract is prohibited or rendered invalid or unenforceable,
such prohibition, in validity or unenforced ability shall not affect the validity or enforce ability of
any other provisions and conditions of the Contract.

3.8 Country of Origin

“Origin” means the place where the plant and component parts thereof are mined, grown, produced
or manufactured, and from which the services are provided. Plant components are produced when,
through manufacturing, processing, or substantial or major assembling of components, a
commercially recognized product results that is substantially in its basic characteristics or in purpose or
utility from its components.

4 Communications

4.3 Wherever these Conditions provide for the giving or issuing of approvals, certificates,
consents, determinations, notices, requests and discharges, these communications shall
be:
In writing and delivered against receipt; and
delivered, sent or transmitted to the address for the recipient's communications as
stated in the Contract Agreement.

When a certificate is issued to a Party, the certifier shall send a copy to the other Party. When a
notice is issued to a Party, by the other Party or the Project Manager, a copy shall be sent to the
Project Manager or the other Party, as the case may be.

5 Law and Language

5.3 The Contract shall be governed by in accordance with laws of Kenya

5.4 The ruling language of the Contract shall be English Language.

5.5 The language for communications shall be the English language.

6 Fraud and Corruption

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

6.2 Tenderers shall permit and shall cause their agents (where declared or not), subcontractors, sub-
consultants, service providers, suppliers, and their personnel, to permit the PPRA to inspect all
accounts, records and other documents relating to any initial selection process, prequalification
process, tender submission, proposal submission, and contract performance (in the case of award),
and to have them audited by auditors appointed by the PPRA.

Subject Matter of Contract

7Scope of Facilities

7.1 Unless otherwise expressly limited in the Procuring Entity's Requirements, the Contractor's obligations
cover the provision of all Plant and the performance of all Installation Services required for the design,
and the manufacture (including procurement, quality assurance, construction, installation, associated
civil works, Pre- commissioning and delivery) of the Plant, and the installation, completion and
commissioning of the Facilities in accordance with the plans, procedures, specifications, drawings,
codes and any other documents as specified in the Section, Procuring Entity's Requirements. Such
specifications include, but are not limited to, the provision of supervisionand engineering services; the
supply of labor, materials, equipment, spare parts (as specified in GCCSub-Clause 7.3 below) and
accessories; Contractor's Equipment; construction utilities and supplies; temporary materials,
structures and facilities; transportation (including, without limitation, unloadingand hauling to, from
and at the Site); and storage, except for those supplies, works and services that will be provided or
performed by the Procuring Entity, asset for thin the Appendix to the ContractAgreement titled Scope
of Works and Supply by the Procuring Entity.

7.2 The Contractor shall, unless specifically excluded in the Contract, perform all such work and/or supply
all such items and materials not specifically mentioned in the Contract but that can be reasonably
inferred from the Contract as being required for attaining Completion of the Facilities as if such work
and/or items and materials were expressly mentioned in the Contract.

7.3 In addition to the supply of Mandatory Spare Parts included in the Contract, the Contractor agrees
to supply spare parts required for the operation and maintenance of the Facilities for the period
specified in the SCC and the provisions, if any, specified in the SCC. However, the identity,
specifications and quantities of such spare parts and the terms and conditions relating to the supply
there of are to be agreed between the Procuring Entity and the Contractor, and the price of such
spare parts shall be that given in Price Schedule No.6, which shall be added to the Contract Price.
The price of such spare parts shall include the purchase price there for and other costs and expenses
(including the Contractor's fees) relating to the supply of spare parts.

8 Time for Commencement and Completion

8.1 The Contractor shall commence work on the Facilities within the period specified in the SCC and
without prejudice to GCC Sub-Clause 26.2 hereof, the Contractor shall thereafter proceed with the
Facilities in accordance with the time schedule specified in the Appendix to the Contract Agreement
titled Time Schedule.
8.2 The Contractor shall attain Completion of the Facilities or of a part where a separate time for
Completion of such part is specified in the Contract, within the time stated in the SCC or within such
extended time to which the Contractor shall be entitled under GCC Clause 40 hereof.

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9 Contractor's Responsibilities

9.1 The Contractor shall design, manufacture including associated purchases and/or subcontracting,
install and complete the Facilities in accordance with the Contract. When completed, the Facilities
should be fit for the purposes for which they are intended as defined in the Contract.
9.2 The Contractor confirms that it has entered in to this Contract on the basis of a proper examination
of the data relating to the Facilities including any data as to boring tests provided by the Procuring
Entity, and on the basis of information that the Contractor could have obtained from a visual
inspection of the Site if access there to was available and of other data readily available to it relating
to the Facilities as of the date twenty- eight (28) days prior to Tender submission. The Contractor
acknowledges that any failure to acquaint itself with all such data and information shall not relieve
its responsibility for properly estimating the difficulty or cost of successfully performing the Facilities.

9.3 The Contractor shall acquire and pay for all permits, approvals and /or licenses from all local, state
or national government authorities or public service undertakings in the country where the Site is
located which such authorities or undertakings require the Contractor to obtain in its name and which
are necessary for the performance of the Contract, including, without limitation, visas for the
Contractor's and Subcontractor's personnel and entry permits for all imported Contractor's
Equipment. The Contractor shall acquire all other permits, approvals and/or licenses that are not the
responsibility of the Procuring Entity under GCC Sub- Clause10.3 hereof and that are necessary for
the performance of the Contract.

9.4 The Contractor shall comply with all laws in force in the country where the Facilities are to be
implemented. The laws will include all local, state, national or other laws that affect the performance
of the Contract and bind upon the Contractor. The Contractor shall indemnify and hold harmless the
Procuring Entity from and against any and all liabilities, damages, claims, fines, penalties and
expenses of whatever nature arising or resulting from the violation of such laws by the Contractor or
its personnel, including the Subcontractors and their personnel, but without prejudice to GCC Sub-
Clause 10.1 hereof.

9.5 Any Plant and Installation Services that will be incorporated in or be required for the Facilities and
other supplies shall have their origin as specified under GCC Clause 1 (Country of Origin). Any
subcontractors retained by the Contractor shall be from a country as specified in GCC Clause1
Country of Origin).

9.6 If the Contractor is a joint venture, or association (JV) of two or more persons, all such persons shall
be jointly and severally bound to the Procuring Entity for the fulfillment of the provisions of the
Contract, and shall designate one of such persons to act as a leader with authority to bind the JV.
The composition or the constitution of the JV shall not be altered without the prior consent of the
Procuring Entity.

9.7 Pursuant to paragraph 2.2 e. of Appendix B to the General Conditions the Contractor shall permit
and shall cause its subcontractors and sub-consultants to permit, PPRA and/or persons appointed by
PPRA to inspect the Site and/or the accounts and records relating to the procurement process,
selection and/or contract execution, and to have such accounts and records audited by auditors
appointed by PPRA. The Contractor's and its Subcontractors' and sub-consultants' attention is drawn
to Sub-Clause 6.1 which provides, interalia, that acts intended to materially impede the exercise of
the PPRA's inspection and audit rights constitute a prohibited practice subject to contract termination.

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

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10 Procuring Entity's Responsibilities

10.1 All information and/or data to be supplied by the Procuring Entity as described in the Appendix to
the Contract Agreement titled Scope of Works and Supply by the Procuring Entity, shall be deemed
to be accurate, except when the Procuring Entity expressly states otherwise.
10.2 The Procuring Entity shall be responsible for acquiring and providing legal and physical possession of
the Site and access thereto, and for providing possession of and access to all other areas reasonably
required for the proper execution of the Contract, including all requisite rights of way, as specified
in the Appendix to the Contract Agreement titled Scope of Works and Supply by the Procuring Entity.
The Procuring Entity shall give full possession of an accord all rights of access there to on or before
the date (s) specified in that Appendix.

10.3 The Procuring Entity shall acquire and pay for all permits, approvals and/or licenses from all
local, state or national government authorities or public service under takings in the country
where the Site is located which such authorities or under takings require the Procuring Entity to
obtain in the Procuring Entity's name, are necessary for the execution of the Contract, including
those required for the performance by both the Contractor and the Procuring Entity of their
respective obligations
under the Contract, and (c) are specified
in the Appendix (Scope of Works and Supply by the Procuring Entity).

10.4 If requested by the Contractor, the Procuring Entity shall use its best endeavors to assist the
Contractor in obtaining in a timely and expeditious manner all permits, approvals and/or licenses
necessary for the execution of the Contract from all local, state or national government authorities
or public service under takings that such authorities or undertakings require the Contractor or
Subcontractors or the personnel of the Contractor or Subcontractors, as the case may be, to obtain.

10.5 Unless otherwise specified in the Contract or agreed upon by the Procuring Entity and the Contractor,
the Procuring Entity shall provide sufficient, properly qualified operating and maintenance personnel;
shall supply and make available all raw materials, utilities, lubricants, chemicals, catalysts, other
materials and facilities; and shall perform all work and services of whatsoever nature, including those
required by the Contractor to properly carry out Pre- commissioning, Commissioning and Guarantee
Tests, all in accordance with the provisions of the Appendix to the Contract Agreement titled Scope
of Works and Supply by the Procuring Entity, at or before the time specified in the program furnished
by the Contractor under GCC Sub- Clause18.2hereof and in the manner thereupon specified or as
otherwise agreed upon by the Procuring Entity and the Contractor.

10.6 The Procuring Entity shall be responsible for the continued operation of the Facilities after Completion,
in accordance with GCC Sub-Clause 24.8, and shall be responsible for facilitating the Guarantee Test
(s) for the Facilities, in accordance with GCC Sub-Clause 25.2.
10.7 All costs and expenses involved in the performance of the obligations under this GCC Clause 10 shall
be the responsibility of the Procuring Entity, save those to be incurred by the Contractor with respect
to the performance of Guarantee Tests, in accordance with GCC Sub-Clause25.2.
10.8 In the event that the Procuring Entity shall be in breach of any of his obligations under this Clause,
the additional cost incurred by the Contractor in consequence there of shall be determined by the
Project Manager and added to the Contract Price.
Payment
11 Contract Price
11.1 Contract as specified in Article 2 (Contract Price and Terms of Payment) of the Contract Agreement.
11.2 Unless an adjustment clause is provided for in the SCC, the Contract Price shall be a firm lump sum
not subject to any alteration, except in the event of a Change in the Facilities or as otherwise provided
in the Contract.
11.3 Subject to GCC Sub-Clauses 9.2,10.1 and 35 hereof, the Contractor shall be deemed to have satisfied
itself as to the correctness and sufficiency of the Contract Price, which shall, except as otherwise

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 provided for in the Contract, cover all its obligations under the Contract.
12 Terms of Payment
12.1 The Contract Price shall be paid as specified in Article 2 (Contract Price and Terms of Payment) of
the Contract Agreement and in the Appendix to the Contract Agreement titled Terms and Procedures
of Payment, which also outlines the procedures to be followed in making application for and
processing payments.
12.2 No payment made by the Procuring Entity herein shall be deemed to constitute acceptance by the
Procuring Entity of the Facilities or any part (s) thereof.
12.3 In the event that the Procuring Entity fails to make any payment by its respective due date or within
the period set for thin the Contract, the Procuring Entity shall pay to the Contractor interest on the
amount of such delayed payment at the rate(s) shown in the Appendix to the Contract Agreement
titled Terms and Procedures of Payment, for the period of delay until payment has been made in
full, whether before or after judgment or arbitrage award.
12.4 The currency or currencies in which payments are made to the Contractor under this Contract shall
be specified in the Appendix to the Contract Agreement titled Terms and Procedures of Payment,
subject to the general principle that payments will be made in the currency or currencies in which
the Contract Price has been stated in the Contractor's Tender.

13 Securities

13.1 Issuance of Securities

The Contractor shall provide the securities specified below in favor of the Procuring Entity at
the times, and in the amount, manner and form specified below.

13.2 Advance Payment Security

13.2.1 The Contractor shall, within twenty-eight (28) days of the notification of contract award, provide
a security in an amount equal to the advance payment calculated in accordance with the Appendix
to the Contract Agreement titled Terms and Procedures of Payment, and in the same currency or
currencies.
13.2.2 The security shall be in the form provided in the Tendering documents or in another form acceptable
to the Procuring Entity. The amount of the security shall be reduced in proportion to the value of the
Facilities executed by and paid to the Contractor from time to time, and shall automatically become
null and void when the full amount of the advance payment has been recovered by the Procuring
Entity. The security shall be returned to the Contractor immediately after its expiration.

13.3 Performance Security

13.3.1 The Contractor shall, within twenty-eight (28) days of the notification of contract award, provide a
security for the due performance of the Contract in the amount specified in the SCC.

13.3.2 The Performance Security shall be denominated in the currency or currencies of the Contract, or in a
freely convertible currency acceptable to the Procuring Entity, and shall be in the form provided in
Section X, Contract Forms, corresponding to the type of bank guarantee stipulated by the Procuring
Entity in the SCC, or in another form acceptable to the Procuring Entity.

13.3.3 Unless otherwise specified in the SCC, the security shall be reduced by half on the date of the
Operational Acceptance. The Security shall become null and void, or shall be reduced prorata to the
Contract Price of a part of the Facilities for which a separate Time for Completion is provided, five
hundred and forty (540) days after Completion of the Facilities or three hundred and sixty five
(365) days after Operational Acceptance of the Facilities, whichever occurs first; provided, however,
that if the Defects Liability Period has been extended on any part of the Facilities pursuant to GCC
Sub-Clause27.8 hereof, the Contractor shall issue an additional security in an amount proportionate

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 to the Contract Price of that part. The security shall be returned to the Contractor immediately after
its expiration, provided, however, that if the Contractor, pursuant to GCC Sub- Clause 27.10, is liable
for an extended defect liability obligation, the Performance Security shall be extended for the period
specified in the SCC pursuant to GCC Sub-Clause 27.10 and up to the amount specified in the SCC.

13.3.4 The Procuring Entity shall not make a claim under the Performance Security, except for amounts to
which the Procuring Entity is entitled under the Contract. The Procuring Entity shall indemnify and
hold the Contractor harmless against and from all damages, losses and expenses (including legal fees
and expenses) resulting from a claim under the Performance Security to the extent to which the
Procuring Entity was not entitled to make the claim.

14 Taxes and Duties

14.1 Except as otherwise specifically provided in the Contract, the Contractor shall bear and pay all taxes,
duties, levies and charges assessed on the Contractor, its Subcontractors or their employees by all
municipal, state or national government authorities in connection with the Facilities in and outside
of the country where the Site is located.

14.2 If any tax exemptions, reductions, allowances or privileges may be available to the Contractor in
Kenya, the Procuring Entity shall use its best endeavors to enable the Contractor to benefit from any
such tax savings to the maximum allowable extent.

14.3 For the purpose of the Contract, it is agreed that the Contract Price specified in Article 2 (Contract
Price and Terms of Payment) of the Contract Agreement is based on the taxes, duties, levies and
charges prevailing at the date twenty-eight (28) days prior to the date of Tender submission in Kenya
(hereinafter called “Tax” in this GCC Sub-Clause14.4). If any rates of Tax are increased or decreased,
a new Tax is introduced, an existing Tax is abolished, or any change in interpretation or application
of any Tax occurs in the course of the performance of Contract, which was or will be assessed on
the Contractor, Subcontractors or their employees in connection with performance of the Contract,
an equitable adjustment of the Contract Price shall be made to fully take in to accountancy such change
by addition to the Contract Price or deduction therefrom, as the case may be, in accordance with
GCC Clause36 hereof.

Intellectual Property

15 License/Use of Technical Information

15.1 For the operation and maintenance of the Plant, the Contractor hereby grants a non-exclusive and
non- transferable license (without the right to sub-license) to the Procuring Entity under the patents,
utility models or other industrial property rights owned by the Contractor or by a third Party from
whom the Contractor has received the right to grant licenses there under, and shall also grant to the
Procuring Entity a non-exclusive and non-transferable right (without the right to sub-license) to use
the know-how and other technical information disclosed to the Procuring Entity under the Contract.
Nothing contained herein shall be construed as transferring ownership of any patent, utility model,
trademark, design, copyright, know-how or other intellectual property right from the Contractor or
any third Party to the Procuring Entity.

15.2 The copy right in all drawings, documents and other materials containing data and information
furnished to the Procuring Entity by the Contractor here in shall remain vested in the Contractor or,
if they are furnished to the Procuring Entity directly or through the Contractor by any third Party,
including suppliers of materials, the copy right in such materials shall remain vested in such third
Party.

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 Confidential Information

16.1 The Procuring Entity and the Contractor shall keep confidential and shall not, without the written
consent of the other Party hereto, divulge to any third Party any documents, data or other information
furnished directly or indirectly by the other Party hereto in connection with the Contract, whether
such information has been furnished prior to, during or following termination of the Contract.
Notwithstanding the above, the Contractor may furnish to its Subcontractor (s) such documents, data
and other information it receives from the Procuring Entity to the extent required for the
Subcontractor (s) to perform its work under the Contract, in which event the Contractor shall obtain
from such Subcontractor (s) an under taking of confidentiality similar to that imposed on the
Contractor under this GCC Clause16.
16.2 The Procuring Entity shall not use such documents, data and other information received from the
Contractor for any purpose other than the operation and maintenance of the Facilities. Similarly, the
Contractor shall not use such documents, data and other information received from the Procuring
Entity for any purpose other than the design, procurement of Plant, construction or such other work
and services as are required for the performance of the Contract.

16.3 The obligation of a Party under GCC Sub-Clauses 16.1 and 16.2 above, however, shall not apply to
that information which
Now or here after enters the public domain through no fault of that Party
can be proven to have been possessed by that Party at the time of disclosure and which
was not previously obtained, directly or indirectly, from the other Party hereto
otherwise lawfully becomes available to that Party from a third Party that has no
obligation of confidentiality.

16.4 The above provisions of this GCC Clause 16 shall not in any way modify any undertaking of
confidentiality given by either of the Parties hereto prior to the date of the Contract in respect of the
Facilities or any part thereof.

16.5 The provisions of this GCC Clause 16 shall survive termination, for whatever reason, of the Contract.

Execution of the Facilities

17 Representatives

17.1 Project Manager

If the Project Manager is not named in the Contract, then within fourteen (14) days of the Effective
Date, the Procuring Entity shall appoint and notify the Contractor in writing of the name of the Project
Manager. The Procuring Entity may from time to time appoint some other person as the Project
Manager in place of the person previously so appointed, and shall give a notice of the name of such
other person to the Contractor without delay. No such appointment shall be made at such a time or
in such a manner as to impede the progress of work on the Facilities. Such appointment shall only
take effect upon receipt of such notice by the Contractor. The Project Manager shall represent and
act for the Procuring Entity at all times during the performance of the Contract. All notices,
instructions, orders, certificates, approvals and all other communications under the Contract shall be
given by the Project Manager, except as here in otherwise provided.

All notices, instructions, information and other communications given by the Contractor to the
Procuring Entity under the Contract shall be given to the Project Manager, except as herein otherwise
provided.

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17.2 Contractor's Representative & Construction Manager

17.2.1 If the Contractor's Representative is not named in the Contract, then within fourteen (14) days of
the Effective Date, the Contractor shall appoint the Contractor's Representative and shall request the
Procuring Entity in writing to approve the person so appointed. If the Procuring Entity makes no
objection to the appointment within fourteen (14) days, the Contractor's Representative shall be
deemed to have been approved. If the Procuring Entity objects to the appointment within fourteen
(14) days giving the reason therefor, then the Contractor shall appoint a replacement within fourteen
(14) days of such objection, and the foregoing provisions of this GCC Sub-Clause17.2.1 shall apply
thereto.

17.2.2 The Contractor's Representative shall represent and act for the Contractor at all times during the
performance of the Contract and shall give to the Project Manager all the Contractor's notices,
instructions, information and all other communications under the Contract.

17.2.3 All notices, instructions, information and all other communications given by the Procuring Entity or
the Project Manager to the Contractor under the Contract shall be given to the Contractor's
Representative or, in its absence, its deputy, except as herein otherwise provided.
17.2.4 The Contractor shall not revoke the appointment of the Contractor's Representative without the
Procuring Entity's prior written consent, which shall not be unreasonably withheld. If the Procuring
Entity consents thereto, the Contractor shall appoint some other person as the Contractor's
Representative, pursuant to the procedure set out in GCC Sub-Clause 17.2.1.

17.2.5 The Contractor's Representative may, subject to the approval of the Procuring Entity which shall not
be unreasonably withheld, at any time delegate to any person any of the powers, functions and
authorities vested in him or her. Any such delegation may be revoked at any time. Any such
delegation or revocation shall be subject to a prior notice signed by the Contractor's Representative,
and shall specify the powers, functions and authorities there by delegated or revoked. No such
delegation or revocation shall take effect unless and until a copy there of has been delivered to the
Procuring Entity and the Project Manager.
17.2.6 Any actor exercise by any person of powers, functions and authorities so delegated to him
or her in accordance with this GCC Sub-Clause 17.2.3 shall be deemed to be an actor
exercise by the Contractor's Representative.
17.2.7 From the commencement of installation of the Facilities at the Site until Completion, the Contractor's
Representative shall appoint a suitable person as the Construction Manager. The Construction
Manager shall supervise all work done at the Site by the Contractor and shall be present at the Site
throughout normal working hours except when on leave, sick or absent for reasons connected with
the proper performance of the Contract. Whenever the Construction Manager is absent from the
Site, a suitable person shall be appointed to act as the Construction Manager's deputy.
17.2.8 The Procuring Entity may by notice to the Contractor object to any representative or person employed
by the Contractor in the execution of the Contract who, in the reasonable opinion of the Procuring
Entity, may be have inappropriately, may be incompetent or negligent, or may commit a serious
breach of the Site regulations provided under GCC Sub-Clause 22.4. The Procuring Entity shall
provide evidence of the same, where upon the Contractor shall remove such person from the
Facilities.

17.2.9 If any representative or person employed by the Contractor is removed in accordance with
GCC Sub- Clause 17.2.5, the Contractor shall, where required, promptly appoint a
replacement.

18 Work Program

18.1 Contractor's Organization

The Contractor shall supply to the Procuring Entity and the Project Manager a chart showing the

84
 proposed organization to be established by the Contractor for carrying out work on the Facilities
within twenty-one days of the Effective Date. The chart shall include the identities of the key
personnel and the curricula vitae of such key personnel to be employed shall be supplied together
with the chart. The Contractor shall promptly inform the Procuring Entity and the Project Manager
in writing of any revision or alteration of such an organization chart.

18.2 Program of Performance

Within twenty-eight (28) days after the Effective Date, the Contractor shall submit to the Project
Manager a detailed program of performance of the Contract, made in a form acceptable to the Project
Manager and showing the sequence in which it proposes to design, manufacture, transport, assemble,
install and pre- commission the Facilities, as well as the date by which the Contractor reasonably
requires that the Procuring Entity shall have fulfilled its obligations under the Contract so as to enable
the Contractor to execute the Contract in accordance with the program and to achieve Completion,
Commissioning and Acceptance of the Facilities in accordance with the Contract. The program so
submitted by the Contractor shall accord with the Time Schedule included in the Appendix to the
Contract Agreement titled Time Schedule, and any other dates and periods specified in the Contract.
The Contractor shall update and revise the program as and when appropriate or when required by
the Project Manager, but without modification in the Times for Completion specified in the SCC
pursuant to Sub-Clause 8.2 and any extension granted in accordance with GCC Clause 40, and shall
submit all such revisions to the Project Manager.

18.3 Progress Report

The Contractor shall monitor progress of all the activities specified in the program referred to in GCC
Sub- Clause 18.2 above, and supply a progress report to the Project Manager every month.

The progress report shall be in a form acceptable to the Project Manager and shall indicate: (a)
percentage completion achieved compared with the planned percentage completion for each activity;
and (b) where any activity is behind the program, giving comments and likely consequences and
stating the corrective action being taken.

18.4 Progress of Performance

If at any time the Contractor's actual progress falls behind the program referred to in GCC Sub-
Clause 18.2, or it becomes apparent that it wills of all behind, the Contractor shall, at the request
of the Procuring Entity or the project Manager, prepare and submit to the Project Manager a revised
program, taking into account the prevailing circumstances, and shall notify the Project Manager of
the steps being taken to expedite progress so as to attain Completion of the Facilities within the Time
for Completion under GCC Sub-Clause 8.2, any extension thereof entitled under GCC Sub- Clause
40.1, or any extended period as may otherwise be agreed upon between the Procuring Entityand the
Contractor.

18.5 Procedures
The Contract shall be executed in accordance with the Contract Documents including the procedures
given in the Forms and Procedures of the Procuring Entity's Requirements.

The Contractor may execute the Contract in accordance with its own standard project execution
plans and procedures to the extent that they do not conflict with the provisions contained in the
Contract.

19 Subcontracting

19.1 The Appendix to the Contract Agreement titled List of Major Items of Plant and Installation Services
and List of Approved Subcontractors, specifies major items of supply or services and a list of approved
Subcontractors against each item, including manufacturers. In so far as no Subcontractors are listed
against any such item, the Contractor shall prepare a list of Subcontractors for such item for inclusion
in such list. The Contractor may from time to time propose any addition to or deletion from any such
list. The Contractor shall submit any such list or any modification thereto to the

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 Procuring Entity for its approval in sufficient time so as not to impede the progress of work on the
Facilities. Such approval by the Procuring Entity for any of the Subcontractors shall not relieve the
Contractor from any of its obligations, duties or responsibilities under the Contract.

19.2 The Contractor shall select and employ its Subcontractors for such major items from those listed in
the lists referred to in GCC Sub-Clause19.1.

19.3 For items or parts of the Facilities not specified in the Appendix to the Contract Agreement titled List
of Major Items of Plant and Installation Services and List of Approved Subcontractors, the Contractor
may employ such Subcontractors as it may select, at its discretion.
19.4 Each sub-contract shall include provisions which would entitle the Procuring Entity to require the
sub- contract to be assigned to the Procuring Entity under GCC19.5 (if and when applicable), or in
event of termination by the Procuring Entity under GCC 42.2.
19.5 If a subcontractor's obligations extend beyond the expiry date of the relevant Defects Liability Period
and the Project Manager, prior to that date, instructs the Contractor to assign the benefits of such
obligations to the Procuring Entity, then the Contractor shall do so.

20` Design and Engineering

20.1 Specifications and Drawings

20.1.1 The Contractor shall execute the basic and detailed design and the engineering work in compliance
with the provisions of the Contract, or where not so specified, in accordance with good engineering
practice.

20.1.2 The Contractor shall be responsible for any discrepancies, errors or omissions in the specifications,
drawings and other technical documents that it has prepared, whether such specifications, drawings
and other documents have been approved by the Project Manager or not, provided that such
discrepancies, errors or omissions are not because of inaccurate information furnished in writing to
the Contractor by or on behalf of the Procuring Entity.

20.1.2The Contractor shall be entitled to disclaim responsibility for any design, data, drawing, specification
or other document, or any modification thereof provided or designated by or on behalf of the
Procuring Entity, by giving a notice of such disclaimer to the Project Manager.

20.2 Codes and Standards

Wherever references are made in the Contract to codes and standards in accordance with which the
Contract shall be executed, the edition or the revised version of such codes and standards current at
the date twenty- eight (28) days prior to date of Tender submission shall apply unless otherwise
specified. During Contract execution, any changes in such codes and standards shall be applied
subject to approval by the Procuring Entity and shall be treated in accordance with GCC Clause 39.
20.3 Approval/ Review of Technical Documents by Project Manager.

20.3.1 The Contractor shall prepare or cause its Subcontractors to prepare, and furnish to the Project
Manager the documents listed in the Appendix to the Contract Agreement titled List of Documents
for Approval or Review, for its approval or review as specified and in accordance with the
requirements of GCC Sub-Clause
18.2 (Program of Performance).

20.3.2 Any part of the Facilities covered by or related to the documents to be approved by the Project
Manager shall be executed only after the Project Manager's approval thereof.

GCC Sub-Clauses 20.3.2 through 20.3.7 shall apply to those documents requiring the Project
Manager’s approval, but not to those furnished to the Project Manager for its review only.

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20.2.3Within fourteen (14) days after receipt by the Project Manager of any document requiring the Project
Manager's approval in accordance with GCC Sub-Clause 20.3.1, the Project Manager shall either
return one copy thereof to the Contractor with its approval endorsed there on or shall notify the
Contractor in writing of its disapproval thereof and the reasons therefor and the modifications that
the Project Manager proposes.
If the Project Manager fails to take such action within the said fourteen (14) days, then the said
document shall be deemed to have been approved by the Project Manager.

20.3.4 The Project Manager shall not disapprove any document, except on the grounds that the document
does not comply with the Contractor that it is contrary to good engineering practice.
20.3.5 If the Project Manager disapproves the document, the Contractor shall modify the document and
resubmit it for the Project Manager's approval in accordance with GCC Sub-Clause 20.3.2. If the
Project Manager approves the document subject to modification(s), the Contractor shall make the
required modification (s), where upon the document shall be deemed to have been approved.
20.3.6 If any dispute or difference occurs between the Procuring Entity and the Contractor in connection
with or arising out of the disapproval by the Project Manager of any document and/or any
modification (s) there to that cannot be settled between the Parties within a reasonable period, then
such dispute or difference may be referred to a Dispute Board for determination in accordance with
GCC Sub-Clause 46.1 hereof. If such dispute or difference is referred to a Dispute Board, the Project
Manager shall give instructions as to whether and if so, how, performance of the Contract is to
proceed. The Contractor shall proceed with the Contract in accordance with the Project Manager's
instructions, provided that if the Dispute Board upholds the Contractor's view on the dispute and
if the Procuring Entity has not given notice under GCC Sub-Clause
46.3 hereof, then the Contractor shall be reimbursed by the Procuring Entity for any additional costs
incurred by reason of such instructions and shall be relieved of such responsibility or liability in
connection with the dispute and the execution of the instructions as the Dispute Board shall decide,
and the Time for Completion shall be extended accordingly.
20.3.7 The Project Manager's approval, with or without modification of the document furnished by the
Contractor, shall not relieve the Contractor of any responsibility or liability imposed upon it by any
provisions of the Contract except to the extent that any subsequent failure results from modifications
required by the Project Manager.
20.3.8 The Contractor shall not depart from any approved document unless the Contractor has first
submitted to the Project Manager an amended document and obtained the Project Manager's
approval thereof, pursuant to the provisions of this GCC Sub-Clause 20.3.
If the Project Manager requests any change in any already approved document and/or in any
document based there on, the provisions of GCC Clause 39 shall apply to such request.

21 Procurement

21.1 Plant
Subject to GCC Sub-Clause 14.2, the Contractor shall procure and transport all Plant in an
expeditious and orderly manner to the Site.

21.2 Procuring Entity-Supplied Plant

If the Appendix to the Contract Agreement titled Scope of Works and Supply by the
Procuring Entity, provides that the Procuring Entity shall furnish any specific items to the
Contractor, the following provisions shall apply:

21.2.1 The Procuring Entity shall, at its own risk and expense, transport each item to the place on or
near the Site as agreed upon by the Parties and make such item available to the Contractor at
the time specified in the program furnished by the Contractor, pursuant to GCC Sub-
Clause18.2, unless otherwise mutually agreed.

21.2.2 Upon receipt of such item, the Contractor shall inspect the same visually and notify the Project
Manager of any detected shortage, defect or default. The Procuring Entity shall

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 immediately remedy any shortage, defector default, or the Contractor shall, if practicable and
possible, at the request of the Procuring Entity, remedy such shortage, defect or default at the
Procuring Entity's cost and expense. After inspection, such item shall fall under the care,
custody and control of the Contractor. The provision of this GCC Sub-Clause21.2.2 shall
apply to any item supplied to remedy any such shortage or default or to substitute for any
defective item, or shall apply to defective items that have been repaired.

21.2.3 The foregoing responsibilities of the Contractor and its obligations of care, custody and control
shall not relieve the Procuring Entity of liability for any undetected shortage, defector default,
nor place the Contractor under any liability for any such shortage, defect or default whether
under GCC Clause 27 or under any other provision of Contract.

21.3 Transportation

21.3.1 The Contractor shall at its own risk and expense transport all the materials and the Contractor's
Equipment to the Site by the mode of transport that the Contractor judges most suitable under all
the circumstances.

21.3.2 Unless otherwise provided in the Contract, the Contractor shall be entitled to select any safe
mode of transport operated by any person to carry the materials and the Contractor's
Equipment.

21.3.3 Upon dispatch of each shipment of materials and the Contractor's Equipment, the Contractor shall
notify the Procuring Entity by telex, cable, facsimile or electronic means, of the description of the
materials and of the Contractor's Equipment, the point and means of dispatch, and the estimated
time and point of arrival in the Kenya, if applicable, and at the Site. The Contractor shall furnish the
Procuring Entity with relevant shipping documents to be agreed upon between the Parties.

21.3.4 The Contractor shall be responsible for obtaining, if necessary, approvals from the authorities for
transportation of the materials and the Contractor's Equipment to the Site. The Procuring Entity shall
use its best endeavors in a timely and expeditious manner to assist the Contractor in obtaining such
approvals, if requested by the Contractor. The Contractor shall indemnify and hold harmless the
Procuring Entity from and against any claim for damage to roads, bridges or any other traffic facilities
that may be caused by the transport of the materials and the Contractor's Equipment to the Site.

21.4 Customs Clearance

21.4.1 The Contractor shall, at its own expense, handle all imported materials and Contractor's Equipment
at the point(s) of import and shall handle any formalities for customs clearance, subject to the
Procuring Entity's obligations under GCC Sub-Clause 14.2, provided that if applicable laws or
regulations require any application or act to be made by or in the name of the Procuring Entity, the
Procuring Entity shall take all necessary steps to comply with such laws or regulations. In the event
of delays in customs clearance that are not the fault of the Contractor, the Contractor shall be entitled
to an extension in the Time for Completion, pursuant to GCC Clause40.

22 Installation

22.1 Setting Out/ Supervision

22.1.1 Bench Mark: The Contractor shall be responsible for the true and proper setting-out of the Facilities
in relation to bench marks, reference marks and lines provided to it in writing by or on behalf of the
Procuring Entity.

If, at any time during the progress of installation of the Facilities, any error shall appear in the
position, level or alignment of the Facilities, the Contractor shall forth with notify the Project

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 Manager of such error and, at its own expense, immediately rectify such error to the reasonable
satisfaction of the Project Manager. If such error is based on incorrect data provided in writing by or
on behalf of the Procuring Entity, the expense of rectifying the same shall be borne by the Procuring
Entity.
22.1.2 Contractor's Supervision: The Contractor shall give or provide all necessary superintendence during
the installation of the Facilities, and the Construction Manager or its deputy shall be constantly on
the Site to provide full-time super intendance of the installation. The Contractor shall provide and
employ only technical personnel who are skilled and experienced in their respective callings and
supervisory staff who are competent to adequately supervise the work at hand.

22.2 Labor:

22.2.1 Engagement of Staff and Labor

Except as otherwise stated in the Specification, the Contractor shall make arrangements for the
engagement of all staff and labor, local or otherwise, and for their payment, housing, feeding and
transport.

The Contractor shall provide and employ on the Site in the installation of the Facilities such skilled,
semi- skilled and unskilled labor as is necessary for the proper and timely execution of the Contract.
The Contractor is encouraged to use local labor that has the necessary skills.

The Contractor shall be responsible for obtaining all necessary permit(s) and/or visa(s) from the
appropriate authorities for the entry of all labor and personnel to be employed on the Site into Kenya.
The Procuring Entity will, if requested by the Contractor, use his best endeavors in a timely and
expeditious manner to assist the Contractor in obtaining any local, state, national or government
permission required for bringing in the Contractor's personnel.

The Contractor shall at its own expense provide the means of repatriation to all of its and its
Subcontractor's personnel employed on the Contract at the Site to the place where they were
recruited or to their domicile. It shall also provide suitable temporary maintenance of all such persons
from the cessation of their employment on the Contract to the date programmed for their departure.
In the event that the Contractor defaults in providing such means of transportation and temporary
maintenance, the Procuring Entity may provide the same to such personnel and recover the cost of
doing so from the Contractor.

22.2.2 Persons in the Service of Procuring Entity

The Contractor shall not recruit, or attempt to recruit, staff and labor from amongst the Procuring
Entity's Personnel.

22.2.3 Labor Laws

The Contractor shall comply with all the relevant labor Laws applicable to the Contractor’s Personnel,
including Laws relating to their employment, health, safety, welfare, immigration and emigration,
and shall allow them all their legal rights.

The Contractor shall at all times during the progress of the Contract use its best endeavors to prevent
any unlawful, riotous or disorderly conduct or behavior by or amongst its employees and the labor
of its Subcontractors.

The Contractor shall, in all dealings with its labor and the labor of its Subcontractors currently
employed on or connected with the Contract, pay due regard to all recognized festivals, official
holidays, religious or other customs and all local laws and regulations pertaining to the employment
of labor.

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22.2.4 Rates of Wages and Conditions of Labor
The Contractor shall pay rates of wages, and observe conditions of labor, which are not lower than
those established for the trade or industry where the work is carried out. If no established rates or
conditions are applicable, the Contractor shall pay rates of wages and observe conditions which are
not lower than the general level of wages and conditions observed locally by Procuring Entities whose
trade or industry is similar to that of the Contractor.

The Contractor shall in form the Contractor's Personnel about their liability to pay personal income
taxes in the Country in respect of such of their salaries, wages and allowances as are chargeable
under the Laws for the time being in force, and the Contractor shall perform such duties in regard to
such deductions thereof as may be imposed on him by such Laws.

22.2.5 Working Hours

No work shall be carried out on the Site on locally recognized days of rest, or outside the normal
working hours stated in the SCC, unless:
Otherwise stated in the Contract,
The Project Manager gives consent, or
The work is unavoidable, or necessary for the protection of life or property or for the
safety of the Works, in which case the Contractor shall immediately advise the Project
Manager.

If and when the Contractor considers it necessary to carryout work at night or on public holidays
so as to meet the Time for Completion and requests the Project Manager's consent thereto, the
Project Manager shall not unreasonably withhold such consent.

This Sub-Clause shall not apply to any work which is customarily carried out by rotary or double-shifts.

22.2.6 Facilities for Staff and Labor

Except as otherwise stated in the Specification, the Contractor shall provide and maintain all
necessary accommodation and welfare facilities for the Contractor's Personnel. The Contractor shall
also provide facilities for the Procuring Entity's Personnel as stated in the Specification.
The Contractor shall not permit any of the Contractor's Personnel to maintain any temporary or
permanent living quarters within the structures forming part of the Permanent Works.

22.2.7 Health and Safety

The Contractor shall at all times take all reasonable precautions to maintain the health and safety of
the Contractor's Personnel. In collaboration with local health authorities, the Contractor shall ensure
that medical staff, first aid facilities, sick bay and ambulance service are available at all times at the
Site and at any accommodation for Contractor's and Procuring Entity's Personnel, and that suitable
arrangements are made for all necessary welfare and hygiene requirements and for the prevention
of epidemics.

The Contractor shall appoint an accident prevention officer at the Site, responsible for maintaining
safety and protection against accidents. This person shall be qualified for this responsibility, and shall
have the authority to issue instructions and take protective measures to prevent accidents.
Throughout the performance of the Contract, the Contractor shall provide whatever is required by
this person to exercise this responsibility and authority.

The Contractor shall send to the Project Manager, details of any accident as soon as practicable after
its occurrence. The Contractor shall maintain records and make reports concerning health, safety
and welfare of persons, and damage to property, as the Project Manager may reasonably require.

The Contractor shall throughout the contract (including the Defects Notification Period): (i) conduct
Information, Education and Consultation Communication (IEC) campaigns, at least every other

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 month, addressed to all the Site staff and labor (including all the Contractor's employees, all
Subcontractors and Procuring Entity's and Project Manager's' employees, and all truck drivers and
crew making deliveries to Site for construction activities) and to the immediate local communities,
concerning the risks, dangers and impact, and appropriate avoidance behavior with respect to of
Sexually Transmitted Diseases (STD) - or Sexually Transmitted Infections (STI) in general and
HIV/AIDS in particular; (ii) provide male or female condoms for all Site staff and labor as appropriate;
and (iii) provide for STI and HIV/AIDS screening, diagnosis, counseling and referral to a dedicated
national STI and HIV/AIDS program,(unless otherwise agreed) of all Site staff and labor.

The Contractor shall include in the program to be submitted for the execution of the Facilities under
Sub- Clause18.2 an alleviation program for Site staff and labor and their families in respect of Sexually
Transmitted Infections (STI) and Sexually Transmitted Diseases (STD) including HIV/AIDS.The STI,
STD and HIV/AIDS alleviation program shall indicate when, how and at what cost the Contractor
plans to satisfy the requirements of this Sub-Clause and the related specification. For eachcomponent,
the program shall detail the resources to be provided or utilized and any related sub- contracting
proposed. The program shall also include provision of a detailed cost estimate with supporting
documentation. Payment to the Contractor for preparation and implementation this program shall
not exceed the Provisional Sum dedicated for this purpose.
22.2.8 Funeral Arrangements
In the event of the death of any of the Contractor's personnel or accompanying members of their
families, the Contractor shall be responsible for making the appropriate arrangements for their return
or burial, unless otherwise specified in the SCC.

22.2.9 Records of Contractor's Personnel

The Contractor shall keep accurate records of the Contractor's personnel, including the number of
each class of Contractor's Personnel on the Site and the names, ages, genders, hours worked and
wages paid to all workers. These records shall be summarized on a monthly basis in a form approved
by the Project Manager and shall be available for inspection by the Project Manager until the
Contractor has completed all work.

22.2.10 Supply of Food stuffs

The Contractor shall arrange for the provision of a sufficient supply of suitable food as may be stated
in the Specification at reasonable prices for the Contractor's Personnel for the purposes of or in
connection with the Contract.

22.2.11 Supply of Water

The Contractor shall, having regard to local conditions, provide on the Site an adequate supply of
drinking and other water for the use of the Contractor's Personnel.

22.2.12 Measures against Insect and Pest Nuisance

The Contractor shall at all times take the necessary precautions to protect the Contractor's Personnel
employed on the Site from insect and pest nuisance, and to reduce their danger to health. The
Contractor shall comply with all the regulations of the local health authorities, including use of
appropriate insecticide.

22.2.13 Alcoholic Liquor or Drugs

The Contractor shall not, otherwise than in accordance with the Laws of Kenya, import, sell, give
barter or otherwise dispose of any alcoholic liquor or drugs, or permit or allow importation, sale,
gift barter or disposal by Contractor's Personnel.

22.2.14 Arms and Ammunition

The Contractor shall not give, barter, or otherwise dispose of, to any person, any arms or
ammunition of any kind, or allow Contractor's Personnel to do so.

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22.2.15 Prohibition of All Forms of Forced or Compulsory Labor
The contractor shall not employ “forced or compulsory labor” in any form. “Forced or compulsory
labor” consists of all work or service, not voluntarily performed, that is extracted from an individual
under threat of force or penalty.

22.2.16 Prohibition of Harmful Child Labor

The Contractor shall not employ any child to perform any work that is economically exploitative, or
is likely to be hazardous to, or to interfere with, the child's education, or to be harmful to the child's
health or physical, mental, spiritual, moral, or social development.

22.3 Contractor's Equipment

22.3.1 All Contractor's Equipment brought by the Contractor on to the Site shall be deemed to be intended
to be used exclusively for the execution of the Contract. The Contractor shall not remove the same
from the Site without the Project Manager's consent that such Contractor's Equipment is no longer
required for the execution of the Contract.

22.3.2 Unless otherwise specified in the Contract, upon completion of the Facilities, the Contractor shall
remove from the Site all Equipment brought by the Contractor on to the Site and any surplus
materials remaining there on.

22.3.3 The Procuring Entity will, if requested, use its best endeavors to assist the Contractor in obtaining
any local, state or national government permission required by the Contractor for the export of the
Contractor's Equipment imported by the Contractor for use in the execution of the Contract that is
no longer required for the execution of the Contract.
22.4 Site Regulations and Safety
The Procuring Entity and the Contractor shall establish Site regulations setting out the rules to be
observed in the execution of the Contract at the Site and shall comply there with. The Contractor
shall prepare and submit to the Procuring Entity, with a copy to the Project Manager, proposed Site
regulations for the Procuring Entity's approval, which approval shall not be unreasonably withheld.

Such Site regulations shall include, but shall not be limited to, rules in respect of security, safety of
the Facilities, gate control, sanitation, medical care, and fire prevention.

22.5 Opportunities for Other Contractors

22.5.1 The Contractor shall, upon written request from the Procuring Entity or the Project Manager, give
all reasonable opportunities for carrying out the work to any other contractors employed by the
Procuring Entity on or near the Site.

22.5.2 If the Contractor, upon written request from the Procuring Entity or the Project Manager, makes
available to other contractors any roads or ways the maintenance for which the Contractor is
responsible, permits the use by such other contractors of the Contractor's Equipment, or provides
any other service of whatsoever nature for such other contractors, the Procuring Entity shall fully
compensate the Contractor for any loss or damage caused or occasioned by such other contractors
in respect of any such use or service, and shall pay to the Contractor reasonable remuneration for
the use of such equipment or the provision of such services.

22.5.3 The Contractor shall also so arrange to perform its work as to minimize, to the extent possible,
interference with the work of other contractors. The Project Manager shall determine the resolution
of any difference or conflict that may arise between the Contractor and other contractors and the
workers of the Procuring Entity in regard to their work.

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22.5.4 The Contractor shall notify the Project Manager promptly of any defects in the other contractors'
work that come to its notice, and that could affect the Contractor's work. The Project Manager shall
determine the corrective measures, if any, required to rectify the situation after inspection of the
Facilities. Decisions made by the Project Manager shall be binding on the Contractor.

22.6 Emergency Work

If, by reason of an emergency arising in connection with and during the execution of the Contract, any
protective or remedial work is necessary as a matter of urgency to prevent damage to the Facilities, the
Contractor shall immediately carry out such work.

If the Contractor is unable or unwilling to do such work immediately, the Procuring Entity may
door cause such work to be done as the Procuring Entity may determine is necessary in order to
prevent damage to the Facilities. In such event the Procuring Entity shall, as soon as practicable
after the occurrence of any such emergency, notify the Contractor in writing of such emergency,
the work done and the reasons there for. If the work done or caused to be done by the Procuring
Entity is work that the Contractor was liable to do at its own expense under the Contract, the
reasonable costs incurred by the Procuring Entity in connection there with shall be paid by the
Contractor to the Procuring Entity. Otherwise, the cost of such remedial work shall be borne by
the Procuring Entity.

22.7 Site Clearance

22.7.1 Site Clearance in Course of Performance: In the course of carrying out the Contract, the
Contractor shall keep the Site reasonably free from all unnecessary obstruction, store or remove
any surplus materials, clear away any wreckage, rubbish or temporary works from the Site, and
remove any Contractor's Equipment no longer required for execution of the Contract.
22.7.2 Clearance of Site after Completion: After Completion of all parts of the Facilities, the Contractor
shall clear away and remove all wreckage, rubbish and debris of any kind from the Site, and shall
leave the Site and Facilities in a clean and safe condition.

22.8 Watching and Lighting

The Contractor shall provide and maintain at its own expense all lighting, fencing, and watching
when and Where necessary for the proper execution and the protection of the Facilities, or for the
safety of the owners and occupiers of adjacent property and for the safety of the public.

23 Test and Inspection

23.1 The Contractor shall at its own expense carryout at the place of manufacture and/or on the Site
all such tests and/ or inspections of the Plant and any part of the Facilities as are specified in the
Contract.

23.2 The Procuring Entity and the Project Manager or their designated representatives shall be entitled
to attend the afore said test and/ or inspection, provided that the Procuring Entity shall bear all
costs and expenses incurred in connection with such attendance including, but not limited to,all
traveling and board and lodging expenses.

23.3 Whenever the Contractor is ready to carry out any such test and/or inspection, the Contractor
shall give a reasonable advance notice of such test and/or inspection and of the place and time
thereof to the Project
Manager.TheContractorshallobtainfromanyrelevantthirdPartyormanufactureranynecessarypermis
sion or consent to enable the Procuring Entity and the Project Manager or their designated
representatives to attend the test and/ or inspection.

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23.4 The Contractor shall provide the Project Manager with a certified report of the results of any such
test and/ or inspection. If the Procuring Entity or Project Manager or their designated
representatives fails to attend the test and/or inspection, or if it is agreed between the Parties
that such persons shall not do so, then the Contractor may proceed with the test and/ or
inspection in the absence of such persons, and may provide the Project Manager with a certified
report of the results thereof.

23.5 The Project Manager may require the Contractor to carry out any test and/or inspection not
required by the Contract, provided that the Contractor's reasonable costs and expenses incurred
in the carrying out of such test and/or inspection shall be added to the Contract Price. Further, if
such test and/or inspection impede the progress of work on the Facilities and/or the Contractor's
performance of its other obligations under the Contract, due allowance will be made in respect
of the Time for Completion and the other obligations so affected.

23.6 If any Plant or any part of the Facilities fails to pass any test and/ or inspection, the Contractor
shall either rectify or replace such Plant or part of the Facilities and shall repeat the test and/or
inspection upon giving a notice under GCC Sub-Clause 23.3.

23.7 If any dispute or difference of opinion shall arise between the Parties in connection with or arising
out of the test and/or inspection of the Plant or part of the Facilities that cannot be settled between
the Parties within a reasonable period of time, it may be referred to a Dispute Board for determination
in accordance with GCC Sub-Clause 46.3.

23.8 The Contractor shall afford the Procuring Entity and the Project Manager, at the Procuring Entity's
expense, access at any reasonable time to any place where the Plant are being manufactured or the
Facilities are being installed, in order to inspect the progress and the manner of manufacture or
installation, provided that the Project Manager shall give the Contractor a reasonable prior notice.

23.9 The Contractor agrees that neither the execution of a test and/ or inspection of Plant or any part of
the Facilities, nor the attendance by the Procuring Entity or the Project Manager, nor the issue of
any test certificate pursuant to GCC Sub-Clause 23.4, shall release the Contractor from any other
responsibilities under the Contract.

23.10 No part of the Facilities or foundations shall be covered upon the Site without the Contractor carrying
out any test and/or inspection required under the Contract. The Contractor shall give a reasonable
notice to the Project Manager whenever any such parts of the Facilities or foundations are ready or
about to be ready for test and/or inspection; such test and/or inspection and notice there of shall
be subject to the requirements of the Contract.

23.11 The Contractor shall uncover any part of the Facilities or foundations, or shall make openings in or
through the same as the Project Manager may from time to time require at the Site, and shall
reinstate and make good such part or parts.

If any parts of the Facilities or foundations have been covered up at the Site after compliance with
the requirement of GCC Sub-Clause 23.10 and are found to be executed in accordance with the
Contract, the expenses of uncovering, making openings in or through, reinstating, and making good
the same shall be borne by the Procuring Entity, and the Time for Completion shall be reasonably
adjusted to the extent that the contractor has thereby been delayed or impeded in the performance
of any of its obligations under the Contract.

24 Completion of the Facilities

24.1 As soon as the Facilities or any part thereof has, in the opinion of the Contractor, been completed
operationally and structurally and put in a tight and clean condition as specified in the Procuring

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 Entity's Requirements, excluding minor items not materially affecting the operation or safety of the
Facilities, the Contractor shall so notify the Procuring Entity in writing.

24.2 Within seven (7) days after receipt of the notice from the Contractor under GCC Sub-Clause 24.1,
the Procuring Entity shall supply the operating and maintenance personnel specified in the Appendix
to the Contract Agreement titled Scope of Works and Supply by the Procuring Entity for Pre-
commissioning of the Facilities or any part thereof.

24.3 Pursuant to the Appendix to the Contract Agreement titled Scope of Works and Supply by the
Procuring Entity, the Procuring Entity shall also provide, within the said seven (7) day period, the
raw materials, utilities, lubricants, chemicals, catalysts, facilities, services and other matters required
for Pre- commissioning of the Facilities or any part thereof.

24.4 As soon as reasonably practicable after the operating and maintenance personnel have been supplied
by the Procuring Entity and the raw materials, utilities, lubricants, chemicals, catalysts, facilities,
services and other matters have been provided by the Procuring Entity in accordance with GCC Sub-
Clause24.2, the Contractor shall commence Pre-commissioning of the Facilities or the relevant part
thereof in preparation for Commissioning, subject to GCC Sub-Clause 25.5.

24.5 As soon as all works in respect of Pre-commissioning are completed and, in the opinion of the
Contractor, the Facilities or any part thereof is ready for Commissioning, the Contractor shall so
notify the Project Manager in writing.

24.6 The Project Manager shall, within fourteen (14) days after receipt of the Contractor's notice under
GCC Sub- Clause24.4, either issue a Completion Certificate in the form specified in the Procuring
Entity's Requirements (Forms and Procedures), stating that the Facilities or that part thereof have
reached Completion as of the date of the Contractor's notice under GCC Sub-Clause 24.4, or notify
the Contractor in writing of any defects and/or deficiencies.

If the Project Manager notifies the Contractor of any defects and/or deficiencies, the Contractor
shall then correct such defects and/or deficiencies, and shall repeat the procedure described in GCC
Sub-Clause 24.4.Ifthe Project Manager is satisfied that the Facilities or that part thereof have
reached Completion, the Project Manager shall, within seven (7) days after receipt of the
Contractor's repeated notice, issue a Completion Certificate stating that the Facilities or that part
thereof have reached Completion as of the date of the Contractor's repeated notice.

If the Project Manager is not so satisfied, then it shall notify the Contractor in writing of any defects
and/or deficiencies within seven (7) days after receipt of the Contractor's repeated notice, and the
above procedure shall be repeated.

24.7 If the Project Manager fails to issue the Completion Certificate and fails to inform the Contractor of
any defects and/or deficiencies within fourteen (14) days after receipt of the Contractor's notice
under GCC Sub- Clause 24.4 or within seven (7) days after receipt of the Contractor's repeated notice
under GCC Sub-Clause 24.5, or if the Procuring Entity makes use of the Facilities or part thereof,
then the Facilities or that part there of shall be deemed to have reached Completion as of the date
of the Contractor's notice or repeated notice, or as of the Procuring Entity's use of the Facilities, as
the case may be.

24.8 As soon as possible after Completion, the Contractor shall complete all outstanding minor items so
that the Facilities are fully in accordance with the requirements of the Contract, failing which the
Procuring Entity will undertake such completion and deduct the costs there of from any monies
owing to the Contractor.

24.9 Upon Completion, the Procuring Entity shall be responsible for the care and custody of the Facilities
or the relevant part thereof, together with the risk of loss or damage thereto, and shall thereafter
take over the Facilities or the relevant part thereof.

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25 Commissioning and Operational Acceptance

25.1 Commissioning

25.1.1 Commissioning of the Facilities or any part there of shall be commenced by the Contractor
immediately after issue of the Completion Certificate by the Project Manager, pursuant to GCC Sub-
Clause24.5, or immediately after the date of the deemed Completion, under GCC Sub-Clause 24.6.
25.1.2 The Procuring Entity shall supply the operating and maintenance personnel and all raw materials,
utilities, lubricants, chemicals, catalysts, facilities, services and other matters required for
Commissioning.
25.1.3 In accordance with the requirements of the Contract, the Contractor's and Project Manager's
advisory personnel shall attend the Commissioning, including the Guarantee Test, and shall advise
and assist the Procuring Entity.

25.2 Guarantee Test

25.2 Subject to GCC Sub-Clause 25.5, the Guarantee Test and repeats there of shall be conducted by the
Contractor during Commissioning of the Facilities or the relevant part thereof to ascertain whether
the Facilities or the relevant part can attain the Functional Guarantees specified in the Appendix
to the Contract Agreement titled Functional Guarantees. The Procuring Entity shall promptly provide
the Contractor with such information as the Contractor may reasonably require in relation to the
conduct and results of the Guarantee Test and any repeats thereof.

25.1.1 If for reasons not attributable to the Contractor, the Guarantee Test of the Facilities or the relevant
part thereof cannot be successfully completed within the period from the date of Completion
specified in the SCC or any other period agreed upon by the Procuring Entity and the Contractor,
the Contractor shall be deemed to have fulfilled its obligations with respect to the Functional
Guarantees, and GCC Sub-Clauses
28.2 and 28.3 shall not apply.

25.3 Operational Acceptance

25.3.1 Subject to GCC Sub-Clause 25.4 below, Operational Acceptance shall occur in respect of the
Facilities or any part thereof when
The Guarantee Test has been successfully completed and the Functional Guarantees are met; or
the Guarantee Test has not been successfully completed or has not been carried out for reasons
not attributable to the Contractor within the period from the date of Completion specified in the
SCC pursuant to GCC Sub-Clause 25.2.2 above or any other period agreed upon by the Procuring
Entity and the Contractor; or the Contractor has paid the liquidated damages specified in GCC
Sub-Clause 28.3hereof; and any minor items mentioned in GCC Sub-Clause 24.7 here of relevant
to the Facilities or that part thereof have been completed.
25.3.2 At any time after any of the events set out in GCC Sub-Clause 25.3.1 have occurred, the
Contractor may give a notice to the Project Manager requesting the issue of an Operational
Acceptance Certificate in the form provided in the Procuring Entity's Requirements (Forms and
Procedures) in respect of the Facilities or the part there of specified in such notice as of the date
of such notice.

25.3.3 The Project Manager shall, after consultation with the Procuring Entity, and within seven (7) days
after receipt of the Contractor's notice, issue an Operational Acceptance Certificate.

25.3.4 If within seven (7) days after receipt of the Contractor's notice, the Project Manager fails to issue
the Operational Acceptance Certificate or fails to inform the Contractor in writing of the justifiable
reasons why the Project Manager has not issued the Operational Acceptance Certificate, the
Facilities or the relevant part there of shall be deemed to have been accepted as of the date of
the Contractor's said notice.

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25.4 Partial Acceptance

25.4.1 If the Contract specifies that Completion and Commissioning shall be carried out in respect of
parts of the Facilities, the provisions relating to Completion and Commissioning including the
Guarantee Test shall apply to each such part of the Facilities individually, and the Operational
Acceptance Certificate shall be issued accordingly for each such part of the Facilities.

25.4.2 If a part of the Facilities comprises facilities such as buildings, for which no Commissioning or
Guarantee Test is required, then the Project Manager shall issue the Operational Acceptance
Certificate for such facility when it attains Completion, provided that the Contractor shall there
after complete any outstanding minor items that are listed in the Operational Acceptance
Certificate.

25.5 Delayed Pre-commissioning and/or Guarantee Test

25.5.1 In the event that the Contractor is unable to proceed with the Pre-commissioning of the Facilities
pursuant to Sub-Clause 24.3, or with the Guarantee Test pursuant to Sub-Clause 25.2,for reasons
attributable to the Procuring Entity either on account of non-availability of other facilities under
the responsibilities of other contractor(s), or for reasons beyond the Contractor’s control, the
provisions leading to “deemed” completion of activities such as Completion, pursuant to GCC
Sub-Clause 24.6, and Operational Acceptance, pursuant to GCC Sub-Clause 25.3.4, and
Contractor's obligations regarding Defect Liability Period, pursuant to GCC Sub- Clause 27.2,
Functional Guarantee, pursuant to GCC Clause 28, and Care of Facilities, pursuant to GCC Clause
32 ,and GCC Clause 41.1, Suspension, shall not apply. In this case, the following provisions shall
apply.

25.5.2 When the Contractor is notified by the Project Manager that he will be unable to proceed with
the activities and obligations pursuant to above Sub-Clause 25.5.1, the Contractor shall be
entitled to the following:
The Time of Completion shall be extended for the period of suspension without
imposition of liquidated damages pursuant to GCC Sub-Clause 26.2;
payments due to the Contractor in accordance with the provision specified in the Appendix
to the Contract Agreement titled Terms and Procedures of Payment, which would not have
been payable in normal circumstances due to non-completion of the subject activities, shall
be released to the Contractor against submission of a security in the form of a bank
guarantee of equivalent amount acceptable to the Procuring Entity, and which shall
becomenull and void when the Contractor will have complied with its obligations regarding
those payments, subject to the provision of Sub-Clause
25.5.3 below;
the expenses towards the above security and extension of other securities under the
contract, of which validity needs to be extended, shall be reimbursed to the Contractor by
the Procuring Entity;
the additional charges towards the care of the Facilities pursuant to GCC Sub-Clause 32.1
shall be reimbursed to the Contractor by the Procuring Entity for the period between the
notification mentioned above and the notification mentioned in Sub-Clause 25.5.4 below. The
provision of GCC Sub-Clause 33.2 shall apply to the Facilities during the same period.
Where the contract price is different from the corrected tender price, in order to ensure the
contractor is not paid less or more relative to the contract price (which would be the tender
price), payment valuation certificates and variation orders on omissions and additions valued
based on rates in the Bill of Quantities or schedule of rates in the Tender, will be adjusted by
a plus or minus percentage. The percentage already worked out during tender evaluationis
worked out as follows: (corrected tender price –tender price)/ tender price X100.

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25.5.3 In the event that the period of suspension under above Sub-Clause 25.5.1 actually exceeds one
hundred eighty days, the Procuring Entity and Contractor shall mutually agree to any additional
compensation payable to the Contractor.

25.5.4 When the Contractor is notified by the Project Manager that the plant is ready for Pre-
commissioning, the Contractor shall proceed without delay in performing Pre-commissioning in
accordance with Clause 24.

Guarantees and Liabilities

26 Completion Time

Guarantee

26.1 The Contractor guarantees that it shall attain Completion of the Facilities (or a part for which a
separate time for completion is specified) within the Time for Completion specified in the SCC
pursuant to GCC Sub-Clause 8.2, or within such extended time to which the Contractor shall be
entitled under GCC Clause 40 hereof.
26.2 If the Contractor fails to attain Completion of the Facilities or any part thereof within the Time for
Completion or any extension thereof under GCC Clause 40, the Contractor shall pay to the Procuring
Entity liquidated damages in the amount specified in the SCC as a percentage rate of the Contract
Price or the relevant part thereof. The aggregate amount of such liquidated damages shall in no event
exceed the amount specified as “Maximum” in the SCC as a percentage rate of the Contract Price.
Once the “Maximum” is reached, the Procuring Entity may consider termination of the Contract,
pursuant to GCC Sub-Clause 42.2.2.

26.3 Such payment shall completely satisfy the Contractor's obligation to attain Completion of the
Facilities or the relevant part thereof within the Time for Completion or any extension thereof under
GCC Clause 40. The Contractor shall have no further liability whatsoever to the Procuring Entity in
respect thereof.

4 However, the payment of liquidated damages shall not in any way relieve the Contractor from
any of its obligations to complete the Facilities or from any other obligations and liabilities of the
Contractor under the Contract.

5 Save for liquidated damages payable under this GCC Sub-Clause 26.2, the failure by the Contractor
to attain any milestone or other act, matter or thing by any date specified in the Appendix to the
Contract Agreement titled Time Schedule, and/or other program of work prepared pursuant to GCC
Sub-Clause 18.2 shall not render the Contractor liable for any loss or damage there by suffered by
the Procuring Entity.

26.6 If the Contractor attains Completion of the Facilities or any part there of before the Time for
Completion or any extension thereof under GCC Clause 40, the Procuring Entity shall pay to the
Contractor a bonus in the amount specified in the SCC. The aggregate amount of such bonus shall
in no event exceed the amount specified as “Maximum” in the SCC.

27 Defect Liability

27.1 The Contractor warrants that the Facilities or any part thereof shall be free from defects in the
design, engineering, materials and workmanship of the Plant supplied and of the work executed.

27.2 The Defect Liability Period shall be five hundred and forty (540) days from the date of Completion
of the Facilities (or any part thereof) or one year from the date of Operational Acceptance of the
Facilities (or any part thereof), whichever first occurs, unless specified otherwise in the SCC
pursuant to GCC Sub-Clause 27.10.

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 If during the Defect Liability Period any defect should be found in the design, engineering, materials
and workmanship of the Plant supplied or of the work executed by the Contractor, the Contractor
shall promptly, in consultation and agreement with the Procuring Entity regarding appropriate
remedying of the defects, and at its cost, repair, replace or otherwise make good as the Contractor
shall determine at its discretion, such defect as well as any damage to the Facilities caused by such
defect. The Contractor shall not be responsible for the repair, replacement or making good of any
defector of any damage to the Facilities arising out of or resulting from any of the following causes:
Improper operation or maintenance of the Facilities by the Procuring
Entity; Operation of the Facilities outside specifications provided in the
Contract; or Normal wear and tear.

27.3 The Contractor's obligations under this GCC Clause 27 shall not apply to:
any materials that are supplied by the Procuring Entity under GCC Sub-Clause 21.2, are
normally consumed in operation, or have a normal life shorter than the Defect Liability
Period stated herein;
any designs, specifications or other data designed, supplied or specified by or on behalf
of the Procuring Entity or any matters for which the Contractor has disclaimed
responsibility herein; or any other materials supplied or any other work executed by
or on behalf of the Procuring Entity, except for the work executed by the Procuring
Entity under GCC Sub-Clause 27.7.

27.4 The Procuring Entity shall give the Contractor a notice stating the nature of any such defect
together with all available evidence thereof, promptly following the discovery thereof. TheProcuring
Entity shall afford all reasonable opportunity for the Contractor to inspect any such defect.
27.5 The Procuring Entity shall afford the Contractor all necessary access to the Facilities and the Site to
enable the Contractor to perform its obligations under this GCC Clause 27.

The Contractor may, with the consent of the Procuring Entity, remove from the Site any Plant or
any part of the Facilities that are defective if the nature of the defect, and/or any damage to the
Facilities caused by the defect, is such that repairs cannot be expeditiously carried out at the Site.
27.6 If the repair, replacement or making good is of such a character that it may affect the efficiency of
the Facilities or any part thereof, the Procuring Entity may give to the Contractor a notice requiring
that tests of the defective part of the Facilities shall be made by the Contractor immediately upon
completion of such remedial work, where upon the Contractor shall carryout such tests.

27.7 If such part fails the tests, the Contractor shall carryout further repair, replacement or making
good, as the case may be, until that part of the Facilities passes such tests. The tests shall be agreed
upon by the Procuring Entity and the Contractor.
27.8 If the Contractor fails to commence the work necessary to remedy such defector any damage to
the Facilities caused by such defect within a reasonable time (which shall in no event be considered
to be less than fifteen (15) days), the Procuring Entity may, following notice to the Contractor,
proceed to do such work, and the reasonable costs incurred by the Procuring Entity in connection
there with shall be paid to the Procuring Entity by the Contractor or may be deducted by the
Procuring Entity from any monies due the Contractor or claimed under the Performance Security.

27.9 If the Facilities or any part thereof cannot be used by reason of such defect and/or making good of
such defect, the Defect Liability Period of the Facilities or such part, as the case may be, shall be
extended by a period equal to the period during which the Facilities or such part cannot be used

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 by the Procuring Entity because of any of the aforesaid reasons.

27.10 Except as provided in GCC Clauses 27 and 33, the Contractor shall be under no liability whatsoever
and how so ever arising, and whether under the Contractor at law, in respect of defects in the
Facilities or any part thereof, the Plant, design or engineering or work executed that appear after
Completion of the Facilities or any part thereof, except where such defects are the result of the
gross negligence, fraud, or criminal or willful action of the Contractor.

27.11 In addition, any such component of the Facilities, and during the period of time as may be specified
in the SCC, shall be subject to an extended defect liability period. Such obligation of the Contractor
shall be in addition to the defect liability period specified under GCC Sub-Clause 27.2.

28 Functional Guarantees

28.1 The Contractor guarantees that during the Guarantee Test, the Facilities and all parts thereof shall
attain the Functional Guarantees specified in the Appendix to the Contract Agreement titled
Functional Guarantees, subject to and upon the conditions therein specified.
28.2 If, for reasons attributable to the Contractor, the minimum level of the Functional Guarantees
specified in the Appendix to the Contract Agreement titled Functional Guarantees, are not met
either in whole or in part, the Contractor shall at its cost and expense make such changes,
modifications and/ or additions to the Plant or any part there of as may be necessary to meet at
least the minimum level of such Guarantees. The Contractor shall notify the Procuring Entity upon
completion of the necessary changes, modifications and/or additions, and shall request the
Procuring Entity to repeat the Guarantee Test until the minimum level of the Guarantees has been
met. If the Contractor eventually fails to meet the minimum level of Functional Guarantees, the
Procuring Entity may consider termination of the Contract, pursuant to GCC Sub-Clause 42.2.2.

28.3 If, for reasons attributable to the Contractor, the Functional Guarantees specified in the Appendix
to the Contract Agreement titled Functional Guarantees, are not attained either in whole or in part, but
the minimum level of the Functional Guarantees specified in the said Appendix to the Contract
Agreementis met, the Contractor shall, at the Contractor's option, either

Make such changes, modifications and/or additions to the Facilities or any part there of that
are necessary to attain the Functional Guarantees at its cost and expense, and shall request the
Procuring Entity to repeat the Guarantee Test or
Pay liquidated damages to the Procuring Entity in respect of the failure to meet the Functional
Guarantees in accordance with the provisions in the Appendix to the Contract Agreement titled
Functional Guarantees.
The payment of liquidated damages under GCC Sub-Clause 28.3, up to the limitation of liability
specified in the Appendix to the Contract Agreement titled Functional Guarantees, shall
completely satisfy the Contractor's guarantees under GCC Sub-Clause 28.3, and the Contractor
shall have no further liability whatsoever to the Procuring Entity in respect thereof. Upon the
payment of such liquidated damages by the Contractor, the Project Manager shall issue the
Operational Acceptance
Certificate for the Facilities or any part thereof in respect of which the liquidated damages
have been so paid.

29 Patent Indemnity

29.1 The Contractor shall, subject to the Procuring Entity's compliance with GCC Sub-Clause 29.2,
indemnify and hold harmless the Procuring Entity and its employees and officers from and against
any and all suits, actions or administrative proceedings, claims, demands, losses, damages, costs,
and expenses of whatsoever nature, including attorney's fees and expenses, which the Procuring
Entity may suffer as a result of any infringement or alleged infringement of any patent, utility model,
registered design, trademark, copy right or other intellectual property right registered or

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 otherwise existing at the date of the Contract by reason of: (a) the installation of the Facilities by
the Contractor or the use of the Facilities in Kenya; and (b) the sale of the products produced by
the Facilities in any country.

29.2 Such indemnity shall not cover any use of the Facilities or any part thereof other than for the
purpose indicated by or to be reasonably inferred from the Contract, any infringement resulting
from the use of the Facilities or any part thereof, or any products produced thereby in association
or combination with any other equipment, plant or materials not supplied by the Contractor,
pursuant to the Contract Agreement.

29.3 If any proceedings are brought or any claim is made against the Procuring Entity arising out of the
matters referred to in GCC Sub-Clause 29.1, the Procuring Entity shall promptly give the Contractor
a notice thereof, and the Contractor may at its own expense and in the Procuring Entity's name
conduct such proceedings or claim and any negotiations for the settlement of any such proceedings
or claim.

29.4 If the Contractor fails to notify the Procuring Entity within twenty-eight (28) days after receipt of
such notice that it intends to conduct any such proceedings or claim, then the Procuring Entity shall
be free to conduct the same on its own behalf. Unless the Contractor has so failed to notify
the Procuring Entity within the twenty- eight (28) day period, the Procuring Entity shall make no
admission that may be prejudicial to the defense of any such proceedings or claim.

29.5 The Procuring Entity shall, at the Contractor's request, afford all available assistance to the
Contractor in conducting such proceedings or claim, and shall be reimbursed by the Contractor for
all reasonable expenses incurred in so doing.
29.6 The Procuring Entity shall indemnify and hold harmless the Contractor and its employees, officers
and Subcontractors from and against any and all suits, actions or administrative proceedings,
claims, demands, losses, damages, costs, and expenses of whatsoever nature, including attorney's
fees and expenses, which the Contractor may suffer as a result of any infringement or alleged
infringement of any patent, utility model, registered design, trademark, copyright or other
intellectual property right registered or otherwise existing at the date of the Contract arising out of
or in connection with any design, data, drawing, specification, or other documents or materials
provided or designed by or on behalf of the Procuring Entity.

30 Limitation of Liability

30.1 Except in cases of criminal negligence or willful misconduct,

Neither Party shall be liable to the other Party, whether in contract, tort, or otherwise, for any
in director consequential loss or damage, loss of use, loss of production, or loss of profits or
interest costs, which may be suffered by the other Party in connection with the Contract, other
than specifically provided as any obligation of the Party in the Contract, and
the aggregate liability of the Contractor to the Procuring Entity, whether under the Contract,
in tort or otherwise, shall not exceed the amount resulting from the application of the multiplier
specified in the SCC, to the Contract Price or, if a multiplier is not so specified, the total Contract
Price, provided that this limitation shall not apply to the cost of repairing or replacing defective
equipment, or to any obligation of the Contractor to indemnify the Procuring Entity with respect
to patent infringement.
Risk Distribution

31 Transfer of Ownership

31.1 Ownership of the Plant (including spare parts) to be imported in to Kenya shall be transferred to
the Procuring Entity upon loading on to the mode of transport to be used to convey the Plant from
the country of origin to that country.

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31.2 Ownership of the Plant (including spare parts) procured in Kenya shall be transferred to the
Procuring Entity when the Plant are brought on to the Site.
31.3 Ownership of the Contractor's Equipment used by the Contractor and its Subcontractors in
connection with the Contract shall remain with the Contractor or its Subcontractors.

31.4 Ownership of any Plant in excess of the requirements for the Facilities shall revert to the Contractor
upon Completion of the Facilities or at such earlier time when the Procuring Entity and the
Contractor agree that the Plant in question are no longer required for the Facilities.
31.5 Notwithstanding the transfer of ownership of the Plant, the responsibility for care and custody
thereof together with the risk of loss or damage there to shall remain with the Contractor pursuant
to GCC Clause 32 (Care of Facilities) hereof until Completion of the Facilities or the part there of
in which such Plant are incorporated.

32 Care of Facilities

32.1 The Contractor shall be responsible for the care and custody of the Facilities or any part thereof
until the date of Completion of the Facilities pursuant to GCC Clause 24 or, where the Contract
provides for Completion of the Facilities in parts, until the date of Completion of the relevant part,
and shall make good at its own cost any loss or damage that may occur to the Facilities or the
relevant part thereof from any cause whatsoever during such period. The Contractor shall also be
responsible for any loss or damage to the Facilities caused by the Contractor or its Subcontractors
in the course of any work carried out, pursuant to GCC Clause 27. Notwithstandingthe foregoing,
the Contractor shall not be liable for any loss or damage to the Facilities or that partthereof caused
by reason of any of the matters specified or referred to in paragraphs (a), (b) and
(c) of GCC Sub-Clauses 32.2 and 38.1.

32.2 If any loss or damage occurs to the Facilities or any part, thereof or to the Contractor's temporary
facilities by reason of insofar as they relate to Kenya, nuclear reaction, nuclear radiation, radioactive
contamination, pressure wave caused by aircraft or other aerial objects, or any other occurrences
that an experienced contract or could not reasonably foresee, or if reasonably foreseeable could
not reasonably make provision for or insure against, in so far as such risks are not normally
insurable on the insurance market and are mentioned in the general exclusions of the policy of
insurance, including War Risks and Political Risks, taken out under GCC Clause 34 hereof; or any
use or occupation by the Procuring Entity or any third Party other than a Subcontractor, authorized
by the Procuring Entity of any part of the Facilities; or any use of or reliance upon any design, data
or specification provided or designated by or on behalf of the Procuring Entity, or any such matter
for which the Contractor has disclaimed responsibility herein, the Procuring Entity shall pay to the
Contractor all sums payable in respect of the Facilities executed, notwithstanding that the same be
lost, destroyed or damaged, and will pay to the Contractor the replacement value of all temporary
facilities and all parts thereof lost, destroyed or damaged. If the Procuring Entity requests the
Contractor in writing to make good any loss or damage to the Facilities thereby occasioned, the
Contractor shall make good the same at the cost of the Procuring Entity in accordance with GCC
Clause 39. If the Procuring Entity does not request the Contractor in writing to make good any loss
or damage to the Facilities thereby occasioned, the Procuring Entity shall either request a change
in accordance with GCC Clause 39, excluding the performance of that part of the Facilities there by
lost, destroyed or damaged, or, where the loss or damage affects a substantial part of the Facilities,
the Procuring Entity shall terminate the Contract pursuant to GCC Sub-Clause 42.1 hereof.

32.3 The Contractor shall be liable for any loss of or damage to any Contractor's Equipment, or any
other property of the Contractor used or intended to be used for purposes of the Facilities, except
(i) as mentioned in GCC Sub-Clause 32.2 with respect to the Contractor's temporary facilities, and
(ii) where such loss or damage arises by reason of any of the matters specified in GCC Sub- Clauses
32.2 (b) and (c) and 38.1.

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32.4 With respect to any loss or damage caused to the Facilities or any part thereof or to the Contractor's
Equipment by reason of any of the matters specified in GCC Sub-Clause 38.1, the provisions of GCC
Sub- Clause 38.3 shall apply.

33 Loss of or Damage to Property; Accident or Injury to Workers; Indemnification

33.1 Subject to GCC Sub-Clause 33.3, the Contractor shall indemnify and hold harmless the Procuring
Entity and its employees and officers from and against any and all suits, actions or administrative
proceedings, claims, demands, losses, damages, costs, and expenses of whatsoever nature,
including attorney's fees and expenses, in respect of the death or injury of any person or loss of or
damage to any property other than the Facilities whether accepted or not, arising in connection
with the supply and installation of the Facilities and by reason of the negligence of the Contractor
or its Subcontractors, or their employees, officers or agents, except any injury, death or property
damage caused by the negligence of the Procuring Entity, its contractors, employees, officers or
agents.

33.2 If any proceedings are brought or any claim is made against the Procuring Entity that might subject
the Contractor to liability under GCC Sub-Clause33.1, the Procuring Entity shall promptly give the
Contractor a notice thereof and the Contractor may at its own expense and in the Procuring Entity's
name conduct such proceedings or claim and any negotiations for the settlement of any such
proceedings or claim.

33.8 If the Contractor fails to notify the Procuring Entity within twenty-eight (28) days after receipt of
such notice that it intends to conduct any such proceedings or claim, then the Procuring Entity shall
be free to conduct the same on its own behalf. Unless the Contractor has so failed to notify the
Procuring Entity within the twenty- eight (28) day period, the Procuring Entity shall make no
admission that may be prejudicial to the defense of any such proceedings or claim.

33.9 The Procuring Entity shall, at the Contractor's request, afford all available assistance to the
Contractor in conducting such proceedings or claim, and shall be reimbursed by the Contractor for
all reasonable expenses incurred in so doing.

33.10 `The Procuring Entity shall indemnify and hold harmless the Contractor and its employees, officers
and Subcontractors from any liability for loss of or damage to property of the Procuring Entity,
other than the Facilities not yet taken over, that is caused by fire, explosion or any other perils, in
excess of the amount recoverable from insurances procured under GCC Clause 34, provided that
such fire, explosion or other perils were not caused by any actor failure of the Contractor.

33.11 The Party entitled to the benefit of an indemnity under this GCC Clause 33 shall take all reasonable
measures to mitigate any loss or damage which has occurred. If the Party fails to take such
measures, the other Party's liabilities shall be correspondingly reduced.

34 Insurance

34.1 To the extent specified in the Appendix to the Contract Agreement titled Insurance Requirements,
the Contractor shall at its expense take out and maintain in effect, or cause to be taken out and
maintained in effect, during the performance of the Contract, the insurances set forth below in the
sums and with the deductibles and other conditions specified in the said Appendix. The identity
of the insurers and the form of the policies shall be subject to the approval of the Procuring Entity,
who should not unreasonably withhold such approval.

a. Cargo Insurance During Transport

Covering loss or damage occurring while in transit from the Contractor's or Subcontractor's
works or stores until arrival at the Site, to the Plant (including spare parts therefor) and to the
Contractor's Equipment.

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 Installation All Risks Insurance
Covering physical loss or damage to the Facilities at the Site, occurring prior to Completion of
the Facilities, with an extended maintenance coverage for the Contractor's liability in respect
of any loss or damage occurring during the Defect Liability Period while the Contractor is on
the Site for the purpose of performing its obligations during the Defect Liability Period.

Third Party Liability Insurance

Covering bodily injury or death suffered by third Parties including the Procuring Entity's personnel,and
loss of or damage to property occurring in connection with the supply and installation of the Facilities.
Automobile Liability Insurance
Covering use of all vehicles used by the Contractor or its Subcontractors, whether or not owned
by them, in connection with the execution of the Contract.
Workers' Compensation
In accordance with the statutory requirements applicable in any country where the Contract
or any part thereof is executed.
Procuring Entity's Liability
In accordance with the statutory requirements applicable in any country where the Contract
or any part thereof is executed.
Other Insurances
Such other insurances as may be specifically agreed upon by the Parties here to as listed in the
Appendix to the Contract Agreement titled Insurance Requirements.

34.2 The Procuring Entity shall be named as co-insured under all insurance policies taken out by the
Contractor pursuant to GCC Sub-Clause 34.1, except for the Third Party Liability, Workers'
Compensation and Procuring Entity's Liability Insurances, and the Contractor's Subcontractors shall be
named as co-insureds under all insurance policies taken out by the Contractor pursuant to GCC Sub-
Clause 34.1 except for the Cargo Insurance During Transport, Workers' Compensation and Procuring
Entity's Liability Insurances. All insurers’ rights of subrogation against such co-insureds for losses or
claims arising out of the performance of the Contract shall be waived under such policies.

34.3 The Contractor shall, in accordance with the provisions of the Appendix to the Contract Agreement
titled Insurance Requirements, deliver to the Procuring Entity certificates of insurance or copies of the
insurance policies as evidence that the required policies are in full force and effect. The certificates
shall provide that no less than twenty-one (21) days' notice shall be given to the Procuring Entity by
insurers prior to cancellation or material modification of a policy.

34.4 The Contractor shall ensure that, where applicable, its Subcontractor(s) shall take out and maintain in
effect adequate insurance policies for their personnel and vehicles and for work executed by them
under the Contract, unless such Subcontractors are covered by the policies taken out by the
Contractor.

34.5 The Procuring Entity shall at its expense take out and maintain in effect during the performance of
the Contract those insurances specified in the Appendix to the Contract Agreement titled Insurance
Requirements, in the sums and with the deductibles and other conditions specified in the said
Appendix. The Contractor and the Contractor's Subcontractors shall be named as co-insureds under
all such policies. All insurers' rights of subrogation against such co-insureds for losses or claims arising
out of the performance of the Contract shall be waived under such policies. The Procuring Entity shall
deliver to the Contractor satisfactory evidence that the required insurances are in full force and effect.
The policies shall provide that not less than twenty-one
(21) days' notice shall be given to the Contractor by all insurers prior to any cancellation or material
modification of the policies. If so requested by the Contractor, the Procuring Entity shall provide

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 copies of the policies taken out by the Procuring Entity under this GCC Sub-Clause 34.5.

34.6 If the Contractor fails to take out and/or maintain in effect the insurances referred to in GCC Sub-
Clause 34.1, the Procuring Entity may take out and maintain in effect any such insurances and may
from time to time deduct from any amount due the Contractor under the Contract any premium that
the Procuring Entity shall have paid to the insurer, or may otherwise recover such amount as a debt
due from the Contractor. If the Procuring Entity fails to take out and/or maintain in effect the
insurances referred to in GCC 34.5, the Contractor may take out and maintain in effect any such
insurances and may from time to time deduct from any amount due the Procuring Entity under the
Contract any premium that the Contractor shall have paid to the insurer, or may otherwise recover
such amount as a debt due from the Procuring Entity. If the Contractor fails to or is unable to take
out and maintain in effect any such insurances, the Contractor shall nevertheless have no liability or
responsibility towards the Procuring Entity, and the Contractor shall have full recourse against the
Procuring Entity for any and all liabilities of the Procuring Entity herein.
34.7 Unless otherwise provided in the Contract, the Contractor shall prepare and conduct all and any claims
made under the policies effected by it pursuant to this GCC Clause 34, and all monies payable by any
insurers shall be paid to the Contractor. The Procuring Entity shall give to the Contractor all such reasonable
assistance as may be required by the Contractor. With respect to insurance claims in which theProcuring
Entity's interest is involved, the Contractor shall not give any release or make any compromise with the
insurer without the prior written consent of the Procuring Entity. With respect to insurance claims in which
the Contractor's interest is involved, the Procuring Entity shall not give any release or make any compromise
with the insurer without the prior written consent of the Contractor.

Unforeseen Conditions
35.1 If, during the execution of the Contract, the Contractor shall encounter on the Site any physical
conditions other than climatic conditions, or artificial obstructions that could not have been reasonably
foreseen prior to the date of the Contract Agreement by an experienced contractor on the basis of reasonable
examination of the data relating to the Facilities including any data as to boring tests, provided by the
Procuring Entity, and on the basis of information that it could have obtained from a visual inspection of the
Site if access thereto was available, or other data readily available to it relating to the Facilities, and if the
Contractor determines that it will in consequence of such conditions or obstructions incur additional cost and
expense or require additional time to perform its obligations under the Contract that would not have been
required if such physical conditions or artificial obstructions had not been encountered, the Contractor shall
promptly, and before performing additional work or using additional Plant or Contractor's Equipment, notify
the Project Manager in writing of the physical conditions or artificial obstructions on the Site that could not
have been reasonably foreseen; the additional work and/or Plant and/or Contractor's Equipment required,
including the steps which the Contractor will or proposes to take to overcome such conditions or obstructions;
the extent of the anticipated delay; and the additional cost and expense that the Contractor is likely to incur.

On receiving any notice from the Contractor under this GCC Sub-Clause 35.1, the Project Manager shall
promptly consult with the Procuring Entity and Contractor and decide upon the actions to be taken to
overcome the physical

35.2 If the Contractor is delayed or impeded in the performance of the Contract because of any such
physical conditions or artificial obstructions referred to in GCC Sub-Clause 35.1, the Time for
Completion shall be extended in accordance with GCC Clause 40.

Change in Laws and Regulations

36.1 If, after the date twenty-eight (28) days prior to the date of Tender submission, in Kenya, any law,
regulation, ordinance, order or by-law having the force of law is enacted, promulgated, abrogated
or changed which shall be deemed to include any change in interpretation or application by the
competent authorities, that subsequently affects the costs and expenses of the Contractor and/or
the Time for Completion, the Contract Price shall be correspondingly increased or decreased,

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 and/or the Time for Completion shall be reasonably adjusted to the extent that the Contractor has
thereby been affected in the performance of any of its obligations under the Contract.
Notwithstanding the foregoing, such additional or reduced costs shall not be separately paid or
credited if the same has already been accounted for in the price adjustment provisions where
applicable, in accordance with the SCC pursuant to GCC Sub-Clause 11.2.

Force Majeure

37.1 “Force Majeure” shall mean any event beyond the reasonable control of the Procuring Entity or of
the Contractor, as the case may be, and which is unavoidable notwithstanding the reasonable
care of the Party affected, and shall include, without limitation, the following war, hostilities or
warlike operations whether a state of war be declared or not, invasion, act of foreign enemy and
civil war rebellion, revolution, insurrection, mutiny, usurpation of civil or military government,
conspiracy, riot, civil commotion and terrorist acts confiscation, nationalization, mobilization,
commandeering or requisition by or under the order of any government or de jure or de facto
authority or ruler or any other act or failure to act of any local state or national government
authority strike, sabotage, lockout, embargo, import restriction, port congestion, lack of usual
means of public transportation and communication, industrial dispute, shipwreck, shortage or
restriction of power supply, epidemics, quarantine and plague earthquake, landslide, volcanic
activity, fire, flood or inundation, tidal wave, typhoon or cyclone, hurricane, storm, lightning, or
other inclement weather condition, nuclear and pressure waves or other natural or physical
disaster shortage of labor, materials or utilities where caused by circumstances that are themselves
Force Majeure.

37.2 If either Party is prevented, hindered or delayed from or in performing any of its obligations under
the Contract by an event of Force Majeure, then it shall notify the other in writing of the occurrence
of such event and the circumstances thereof within fourteen (14) days after the occurrence of such
event.

37.3 The Party who has given such notice shall be excused from the performance or punctual
performance of its obligations under the Contract for so long as the relevant event of Force Majeure
continues and to the extent that such Party's performance is prevented, hindered or delayed. The
Time for Completion shall be extended in accordance with GCC Clause 40.

37.4 The Party or Parties affected by the event of Force Majeure shall use reasonable efforts to mitigate
the effect thereof upon its or their performance of the Contract and to fulfill its or their obligations
under the Contract, but without prejudice to either Party's right to terminate the Contract under
GCC Sub-Clauses
37.6 and 38.5.

37.5 No delay or nonperformance by either Party hereto caused by the occurrence of any event of Force
Majeure shall constitute a default or breach of the Contract, or give rise to any claim for damages
or additional cost or expense occasioned thereby, subject to GCC Sub-Clauses 32.2, 38.3and 38.4
if and to the extent that such delay or nonperformance is caused by the occurrence of an event of
Force Majeure.

37.6 If the performance of the Contract is substantially prevented, hindered or delayed for a single
period of more than sixty (60) days or an aggregate period of more than one hundred and twenty
(140) days on account of one or more events of Force Majeure during the currency of the Contract,
the Parties will attempt to develop a mutually satisfactory solution, failing which either Party may
terminate the Contract by giving a notice to the other, but without prejudice to either Party's right
to terminate the Contract under GCC Sub-Clause 38.5.

37.7 In the event of termination pursuant to GCC Sub-Clause 37.6, the rights and obligations of the
Procuring Entity and the Contractor shall be as specified in GCC Sub-Clauses 42.1.2 and 42.1.3.

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37.8 Notwithstanding GCC Sub-Clause 37.5, Force Majeure shall not apply to any obligation of the
Procuring Entity to make payments to the Contractor herein.

War Risks
38.1 “War Risks” shall mean any event specified in paragraphs (a) and (b) of GCC Sub-Clause 37.1 and
any explosion or impact of any mine, bomb, shell, grenade or other projectile, missile, munitions
or explosive of war, occurring or existing in or near the country (or countries) where the Site is
located.

38.2 Notwithstanding anything contained in the Contract, the Contractor shall have no liability
whatsoever furor with respect to destruction of or damage to Facilities, Plant, or any part thereof;
destruction of or damage to property of the Procuring Entity or any third Party; or injury or loss of
life if such destruction, damage, injury or loss of life is caused by any War Risks, and the Procuring
Entity shall indemnify and hold the Contractor harmless from and against any and all claims,
liabilities, actions, lawsuits, damages, costs, charges or expenses arising in consequence of or in
connection with the same.

38.3 If the Facilities or any Plant or Contractor's Equipment or any other property of the Contractor used
or intended to be used for the purposes of the Facilities shall sustain destruction or damage by
reason of any War Risks, the Procuring Entity shall pay the Contractor for any part of the Facilities
or the Plant so destroyed or damaged to the extent not already paid for by the Procuring Entity and
so far as may be required by the Procuring Entity, and as may be necessary for completion of the
Facilities replacing or making good any Contractor's Equipment or other property of the Contractor
so destroyed or damaged replacing or making good any such destruction or damage to the Facilities
or the Plant or any part thereof. If the Procuring Entity does not require the Contractor to replace or
make good any such destruction or damage to the Facilities, the Procuring Entity shall either request
a change in accordance with GCC Clause 39, excluding the performance of that part of theFacilities
thereby destroyed or damaged or, where the loss, destruction or damage affects a substantial part
of the Facilities, shall terminate the Contract, pursuant to GCC Sub-Clause 42.1. Ifthe Procuring
Entity requires the Contractor to replace or make good on any such destruction or damage to the
Facilities, the Time for Completion shall be extended in accordance with GCC 40.

38.4 Notwithstanding anything contained in the Contract, the Procuring Entity shall pay the Contractor
for any increased costs or incidentals to the execution of the Contract that are in any way
attributable to, consequent on, resulting from, or in any way connected with any War Risks,
provided that the Contractor shall as soon as practicable notify the Procuring Entity in writing of
any such increased cost.

38.5 If during the performance of the Contract any War Risks shall occur that financially or otherwise
materially affect the execution of the Contract by the Contractor, the Contractor shall use its
reasonable efforts to execute the Contract with due and proper consideration given to the safety
of its and its Subcontractors' personnel engaged in the work on the Facilities, provided, however,
that if the execution of the work on the Facilities becomes impossible or is substantially prevented
for a single period of more than sixty (60) days or an aggregate period of more than one hundred
and twenty (140) days on account of any War Risks, the Parties will attempt to develop a mutually
satisfactory solution, failing which either Party may terminate the Contract by giving a notice to the
other.

38.6 In the event of termination pursuant to GCC Sub-Clauses 38.3 or 38.5, the rights and obligations
of the Procuring Entity and the Contractor shall be specified in GCC Sub-Clauses 42.1.2 and
42.1.3. A. Change in Contract Elements.

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 Change in Contract Elements
Change in the Facilities
39.1 Introducing a Change

39.1.1 Subject to GCC Sub-Clauses 39.2.5 and 39.2.7, the Procuring Entity shall have the right to propose,
and subsequently require, that the Project Manager order the Contractor from time to time during
the performance of the Contract to make any change, modification, addition or deletion to, in or
from the Facilities here in after called “Change”, provided that such Change falls within the general
scope of the Facilities and does not constitute unrelated work and that it is technically practicable,
taking into account both the state of advancement of the Facilities and the technical compatibility
of the Change envisaged with the nature of the Facilities as specified in the Contract.

39.1.2 Value Engineering: The Contractor may prepare, at its own cost, a value engineering proposal at
any time during the performance of the contract. The value engineering proposal shall, at a
minimum, include the following; The proposed change (s), and a description of the difference to
the existing contract requirements; a full cost/benefit analysis of the proposed change(s) including a
description and estimate of costs (including life cycle costs) the Procuring Entity may incur in
implementing the value engineering proposal; and a description of any effect (s) of the change on
performance/ functionality. The Procuring Entity may accept the value engineering proposal if the
proposal demonstrates benefits that: accelerates the delivery period; or reduces the Contract Price
or the life cycle costs to the Procuring Entity; or improves the quality, efficiency, safety or sustain
ability of the Facilities; or yields any other benefits to the Procuring Entity, without compromising
the necessary functions of the Facilities. If the value engineering proposal is approved by the
Procuring Entity and results in: a reduction of the Contract Price; the amount to be paid to the
Contractor shall be the percentage specified in the SCC of the reduction in the Contract Price; or an
increase in the Contract Price; but results in a reduction in life cycle costs due to any benefit
described in (a) to (d) above, the amount to be paid to the Contractor shall be the full increase in
the Contract Price.

39.1.3 Notwithstanding GCC Sub-Clauses 39.1.1 and 39.1.2, no change made necessary because of any
default of the Contractor in the performance of its obligations under the Contract shall be deemed
to be a Change, and such change shall not result in any adjustment of the Contract Price or the
Time for Completion.

39.1.4 The procedure on how to proceed with and execute Changes is specified in GCC Sub-Clauses 39.2
and 39.3, and further details and forms are provided in the Procuring Entity's Requirements (Forms
and Procedures).

39.2 Changes Originating from Procuring Entity

39.2.1 If the Procuring Entity proposes a Change pursuant to GCC Sub-Clause 39.1.1, it shall send
to the Contractor a “Request for Change Proposal,” requiring the Contractor to prepare and furnish
to the Project Manager as soon as reasonably practicable a “Change Proposal,” which shall include
the following: Brief description of the Change Effect on the Time for Completion Estimated cost of
the Change Effect on Functional Guarantees (if any) Effect on the Facilities Effect on any other
provisions of the Contract.

39.2.2 Prior to preparing and submitting the “Change Proposal,” the Contractor shall submit to the Project
Manager an “Estimate for Change Proposal,” which shall be an estimate of the cost of preparing
and submitting the Change Proposal. Upon receipt of the Contractor's Estimate for Change
Proposal, the Procuring Entity shall do one of the following: Accept the Contractor's estimate with
instructions to the Contractor to proceed with the preparation of the Change Proposal Advise the
Contractor of any part of its Estimate for Change Proposal that is unacceptable and request the
Contractor to review its estimate Advise the Contractor that the Procuring Entity does not intend to
proceed with the Change.

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39.2.3 Upon receipt of the Procuring Entity's instruction to proceed under GCC Sub-Clause 39.2.2 (a), the
Contractor shall, with proper expedition, proceed with the preparation of the Change Proposal, in
accordance with GCC Sub-Clause 39.2.1.

39.2.4 The pricing of any Change shall, as far as practicable, be calculated in accordance with the rates
and prices included in the Contract. If such rates and prices are inequitable, the Parties there to
shall agree on specific rates for the valuation of the Change.

39.1.5 If before or during the preparation of the Change Proposal it becomes apparent that the aggregate
effect of compliance there with and with all other Change Orders that have already become binding
upon the Contractor under this GCC Clause 39 would be to increase or decrease the Contract Price
as originally set for thin Article 2 (Contract Price) of the Contract Agreement by more than fifteen
percent (15%), the Contractor may give a written notice of objection there to prior to furnishing
the Change Proposal as aforesaid. If the Procuring Entity accepts the Contractor's objection, the
Procuring Entity shall withdraw the proposed Change and shall notify the Contractor in writing
thereof.
The Contractor's failure to so object shall neither affect its right to object to any subsequent
requested Changes or Change Orders here in, nor affect its right to take in to account, when making
such subsequent objection, the percentage increase or decrease in the Contract Price that any
Change not objected to by the Contractor represents.

39.1.6 Upon receipt of the Change Proposal, the Procuring Entity and the Contractor shall mutually agree
upon all matters therein contained. Within fourteen (14) days after such agreement, the Procuring
Entity shall, if it intends to proceed with the Change, issue the Contractor with a Change Order.

If the Procuring Entity is unable to reach a decision within fourteen (14) days, it shall notify the
Contractor with details of when the Contractor can expect a decision.

If the Procuring Entity decides not to proceed with the Change for whatever reason, it shall, within
the said period of fourteen (14) days, notify the Contractor accordingly. Under such circumstances,
the Contractor shall be entitled to reimbursement of all costs reasonably incurred by it in the
preparation of the Change Proposal, provided that these do not exceed the amount given by the
Contractor in its Estimate for Change Proposal submitted in accordance with GCC Sub-Clause
39.2.2.

39.1.7 If the Procuring Entity and the Contractor cannot reach agreement on the price for the Change, an
equitable adjustment to the Time for Completion, or any other matters identified in the Change
Proposal, the Procuring Entity may nevertheless instruct the Contractor to proceed with the Change
by issue of a “Pending Agreement Change Order.”

Upon receipt of a Pending Agreement Change Order, the Contractor shall immediately proceed with
effecting the Changes covered by such Order. The Parties shall there after attempt to reach
agreement on the outstanding issues under the Change Proposal.

If the Parties cannot reach agreement within sixty (60) days from the date of issue of the Pending
Agreement Change Order, then the matter may be referred to the Dispute Board in accordance
with the provisions of GCC Sub-Clause 46.1.

39.1.8 Changes Originating from Contractor

39.1.9 If the Contractor proposes a Change pursuant to GCC Sub-Clause 39.1.2, the Contractor shall
submit to the Project Manager a written “Application for Change Proposal,” giving reasons for the
proposed Change and including the information specified in GCC Sub-Clause 39.1.2.
39.1.10 Upon receipt of the Application for Change Proposal, the Parties shall follow the procedures outlined
in GCC Sub-Clauses 39.2.6 and 39.2.7. However, the Contractor shall not be entitled to recover the
costs of preparing the Application for Change Proposal.

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 Extension of Time for Completion

40.1 The Time(s) for Completion specified in the SCC pursuant to GCC Sub-Clause 8.2 shall be
extended if the Contractor is delayed or impeded in the performance of any of its obligations
under the Contract by reason of any of the following: any Change in the Facilities as provided
in GCC Clause 39 any occurrence of Force Majeure as provided in GCC Clause 37, unforeseen
conditions as provided in GCC Clause 35, or other occurrence of any of the matters specified
or referred to in paragraphs (a), (b)and (c) of GCC Sub-Clause 32.2.Any suspension order given
by the Procuring Entity under GCC Clause 41 here of or reduction in the rate of progress pursuant
to GCC Sub-Clause 41.2 or Any changes in laws and regulations as provided in GCC Clause 36
or Any default or breach of the Contract by the Procuring Entity, Appendix to the Contract
Agreement titled, or any activity, actor omission of the Procuring Entity, or the Project Manager,
or any other contractors employed by the Procuring Entity, or Any delay on the part of a
Subcontractor, provided such delay is due to a cause for which the Contractor himself would
have been entitled to an extension of time under this sub-clause, or Delays attributable to the
Procuring Entity or caused by customs, or any other matter specifically mentioned in the
Contract by such period as shall be fair and reasonable in all the circumstances and as shall
fairly reflect the delay or impediment sustained by the Contract or.
40.2 Except where otherwise specifically provided in the Contract, the Contractor shall submit to
the Project Manager a notice of a claim for an extension of the Time for Completion, together with
particulars of the event or circumstance justifying such extension as soon as reasonably practicable
after the commencement of such event or circumstance. As soon as reasonably practicable after
receipt of such notice and supporting particulars of the claim, the Procuring Entity and the
Contractor shall agree upon the period of such extension. In the event that the Contractor does
not accept the Procuring Entity's estimate of a fair and reasonable time extension, the Contractor
shall be entitled to refer the matter to a Dispute Board, pursuant to GCC Sub-Clause 46.1.

40.3 The Contractor shall at all times use its reasonable efforts to minimize any delay in the
performance of its obligations under the Contract.

40.4 In all cases where the Contractor has given a notice of a claim for an extension of time under
GCC 40.2, the Contractor shall consult with the Project Manager in order to determine the steps
(if any) which can be taken to overcome or minimize the actual or anticipated delay. The
Contractor shall there after comply with all reasonable instructions which the Project Manager
shall give in order to minimize such delay. If compliance with such instructions shall cause the
Contractor to incur extra costs and the Contractor is entitled to an extension of time under GCC
40.1, the amount of such extra costs shall be added to the Contract Price.

Suspension

41.1 Procuring Entity may request the Project Manager, by notice to the Contractor, to order the
Contractor to suspend performance of any or all of its obligations under the Contract. Such notice
shall specify the obligation of which performance is to be suspended, the effective date of the
suspension and the reasons therefor. The Contractor shall thereupon suspend performance of such
obligation, except those obligations necessary for the care or preservation of the Facilities, until
ordered in writing to resume such performance by the Project Manager. If, by virtue of a
suspension order given by the Project Manager, other than by reason of the Contractor's default
or breach of the Contract, the Contractor's performance of any of its obligations is suspended for
an aggregate period of more than ninety (90) days, then at any time there after and providedthat
at that time such performance is still suspended, the Contractor may give a notice to the Project
Manager requiring that the Procuring Entity shall, within twenty-eight (28) days of receiptof the
notice, order the resumption of such performance or request and subsequently order a change in
accordance with GCC Clause 39, excluding the performance of the suspended obligationsfrom the
Contract.

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41.2 If the Procuring Entity fails to do so within such period, the Contractor may, by a further notice to
the Project Manager, elect to treat the suspension, where it affects apart only of the Facilities, as a
deletion of such part in accordance with GCC Clause 39 or, where it affects the whole of the
Facilities, as termination of the Contract under GCC Sub-Clause.

41.3 If Procuring Entity has failed to pay the Contractor any sum due under the Contract within the specified
period, has failed to approve any invoice or supporting documents without just cause pursuant to the
Appendix to the Contract Agreement titled Terms and Procedures of Payment, or commits a substantial
breach of the Contract, the Contractor may give a notice to the Procuring Entity that requires payment
of such sum, with interest there on as stipulated in GCC Sub-Clause 12.3, requires approval of such
invoice or supporting documents, or specifies the breach and requires the Procuring Entity to remedy
the same, as the case may be. If the Procuring Entity fails to pay such sum together with such interest,
fails to approve such invoice or supporting documents or give its reasons for withholding such approval,
or fails to remedy the breach or take steps to remedy the breach within fourteen (14) days after receipt
of the Contractor's notice or The Contractor is unable to carry out any of its obligations under the
Contract for any reason attributable to the Procuring Entity, including but not limited to the Procuring
Entity's failure to provide possession of or access to the Site or other areas in accordance with GCC
Sub-Clause 10.2, or failure to obtain any governmental permit necessary for the execution and/or
completion of the Facilities, then the Contractor may by fourteen
(14) days' notice to the Procuring Entity suspend performance of all or any of its obligations under the
Contract, or reduce the rate of progress.

41.3 If the Contractor's performance of its obligations is suspended or the rate of progress is reduced
pursuant to this GCC Clause 41, then the Time for Completion shall be extended in accordance with
GCC Sub-Clause 40.1, and any and all additional costs or expenses incurred by the Contractor as a
result of such suspension or reduction shall be paid by the Procuring Entity to the Contractor in addition
to the Contract Price, except in the case of suspension order or reduction in the rate of progress by
reason of the Contractor's default or breach of the Contract.

41.4 During the period of suspension, the Contractor shall not remove from the Site any Plant, any part of
the Facilities or any Contractor's Equipment, without the prior written consent of the Procuring Entity.

Termination

42.1 Termination for Procuring Entity's Convenience

42.1.1 The Procuring Entity may at any time terminate the Contract for any reason by giving the Contractor
a notice of termination that refers to this GCC Sub-Clause 42.1.

42.1.2 Upon receipt of the notice of termination under GCC Sub-Clause 42.1.1, the Contractor shall
either immediately or upon the date specified in the notice of termination cease all further
work, except for such work as the Procuring Entity may specify in the notice of termination
for the sole purpose of protecting that part of the Facilities already executed, or any work
required to leave the Site in a clean and safe condition, terminate all subcontracts, except
those to be assigned to the Procuring Entity pursuant to paragraph (d)below, remove all
Contractor's Equipment from the Site, repatriate the Contractor's and its Subcontractors'
personnel from the Site, remove from the Site any wreckage, rubbish and debris of any
kind, and leave the whole of the Site in a clean and safe condition, and subject to the
payment specified in GCC Sub-Clause 42.1.3, deliver to the Procuring Entity the parts of the
Facilities executed by the Contractor up to the date of termination to the extent legally
possible, assign to the Procuring Entity all right, title and benefit of the Contractor to the
Facilities and to the Plant as of the date of termination, and, as may be required by the
Procuring Entity, in any subcontracts concluded between the Contractor and its
Subcontractors; and deliver to the Procuring Entity all non-proprietary drawings,

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 specifications and other documents prepared by the Contractor or its Subcontractors as at
the date of termination in connection with the Facilities.
42.1.3 In the event of termination of the Contract under GCC Sub-Clause 42.1.1, the Procuring Entity
shall pay to the Contractor the following amounts: The Contract Price, properly attributable to the
parts of the Facilities executed by the Contractor as of the date of termination, the costs reasonably
incurred by the Contractor in the removal of the Contractor's Equipment from the Site and in the
repatriation of the Contractor's and its Subcontractors' personnel, any amounts to be paid by the
Contractor to its Subcontractors in connection with the termination of any subcontracts, including
any cancellation charges, costs incurred by the Contractor in protecting the Facilities and leaving the
Site in a clean and safe condition pursuant to paragraph (a) of GCC Sub-Clause 42.1.2 the cost of
satisfying all other obligations, commitments and claims that the Contractor may in good faith
have under taken with third Parties in connection with the Contract and that are not covered by
paragraphs (a) through (d) above.

42.2 Termination by the Contractor

42.2.1 The Procuring Entity, without prejudice to any other rights or remedies it may possess, may
terminate the Contract forth within the following circumstances by giving a notice of termination
and its reasons therefor to the Contractor, referring to this GCC Sub-Clause 42.2:

If the Contractor becomes bankrupt or in solvent, has a receiving order issued against it,
compounds with its creditors, or, if the Contractor is a corporation, are solution is passed or order
is made for its winding up, other than a voluntary liquidation for the purposes of amalgamation
or reconstruction, a receiver is appointed over any part of its undertaking or assets, or if the
Contractor takes or suffers any other analogous action in consequence of debt
if the Contractor assigns or transfers the Contract or any right or interest therein in violation
of the provision of GCC Clause 43.
If the Contractor, in the judgment of the Procuring Entity has engaged in Fraud and Corruption,
as defined in paragraph 2.2a. of Appendix B to the GCC, in competing for or in executing the
Contract.

42.2.2 If the Contractor

Has abandoned or repudiated the Contract
Has without valid reason failed to commence work on the Facilities promptly or has suspended,
other than pursuant to GCC Sub-Clause 41.2, the progress of Contract performance for more than
twenty- eight (28) days after receiving a written instruction from the Procuring Entity to proceed
Persistently fails to execute the Contract in accordance with the Contractor persistently neglects
to carry out its obligations under the Contract without just cause
Refuses or is unable to provide sufficient materials, services or labor to execute and complete
the Facilities in the manner specified in the program furnished under GCC Sub-Clause 18.2
at rates of progress that give reasonable assurance to the Procuring Entity that the
Contractorcan attain Completion of the Facilities by the Time for Completion as extended,
then the Procuring Entity may, without prejudice to any other rights it may possess under the
Contract,give a notice to the Contractor stating the nature of the default and requiring the
Contractor toremedy the same. If the Contractor fails to remedy or to take steps to remedy
the same within fourteen (14) days of its receipt of such notice, then the Procuring Entity
may terminate the Contract forth with by giving a notice of termination to the Contractor that
refers to this GCC Sub-Clause 42.2.

42.2.3 Upon receipt of the notice of termination under GCC Sub-Clauses 42.2.1 or 42.2.2, the
Contractor shall, either immediately or upon such date as is specified in the notice oftermination,
cease all further work, except for such work as the Procuring Entity may specify inthe notice of
termination for the sole purpose of protecting that part of the Facilities already executed, or any
work required to leave the Site in a clean and safe condition. Terminate all

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 subcontracts, except those to be assigned to the Procuring Entity pursuant to paragraph (d)
below, deliver to the Procuring Entity the parts of the Facilities executed by the Contractor up
to the date of termination, to the extent legally possible, assign to the Procuring Entity all right,
title and benefit of the Contractor to the Facilities and to the Plant as of the date of termination,
and, as may be required by the Procuring Entity, in any subcontracts concluded between the
Contractor and its Subcontractors, deliver to the Procuring Entity all drawings, specifications
and other documents prepared by the Contractor or its Subcontractors as of the date of
termination in connection with the Facilities.

42.2.4 The Procuring Entity may enter upon the Site, expel the Contractor, and complete the Facilities itself
or by employing any third Party. The Procuring Entity may, to the exclusion of any right of the
Contractor over the same, take over and use with the payment of a fair rental rate to the Contractor,
with all the maintenance costs to the account of the Procuring Entity and with an indemnification
by the Procuring Entity for all liability including damage or injury to persons arising out of the
Procuring Entity's use of such equipment, any Contractor's Equipment owned byte Contractor andon
the Site in connection with the Facilities for such reasonable period as the Procuring Entity considers
expedient for the supply and installation of the Facilities.

42.2.5 Upon completion of the Facilities or at such earlier date as the Procuring Entity thinks appropriate,
the Procuring Entity shall give notice to the Contractor that such Contractor's Equipment will be
returned to the Contractor at or near the Site and shall return such Contractor's Equipment to the
Contractor in accordance with such notice. The Contractor shall thereafter without delay and at its
cost remove or arrange removal of the same from the Site.
42.2.6 Subject to GCC Sub-Clause 42.2.6, the Contractor shall be entitled to be paid the Contract Price
attributable to the Facilities executed as of the date of termination, the value of any unused or
partially used Plant on the Site, and the costs, if any, incurred in protecting the Facilities and in
leaving the Site in a clean and safe condition pursuant to paragraph (a) of GCC Sub-Clause
42.2.3. Any sums due the Procuring Entity from the Contractor accruing prior to the date of
termination shall be deducted from the amount to be paid to the Contractor under this Contract.

42.2.7 If the Procuring Entity completes the Facilities, the cost of completing the Facilities by the Procuring
Entity shall be determined.

42.2.8 If the sum that the Contractor is entitled to be paid, pursuant to GCC Sub-Clause 42.2.5, plus the
reasonable costs incurred by the Procuring Entity in completing the Facilities, exceeds the Contract
Price, the Contractor shall be liable for such excess.
42.2.9 If such excess is greater than the sums due the Contractor under GCC Sub-Clause 42.2.5, the
Contractor shall pay the balance to the Procuring Entity, and if such excess is less than the sums due
the Contractor under GCC Sub-Clause 42.2.5, the Procuring Entity shall pay the balance to the
Contractor. The Procuring Entity and the Contractor shall agree, in writing, on the computation
described above and the manner in which any sums shall be paid.

42.3 Termination by the Contractor

42.3.1 If The Procuring Entity has failed to pay the Contractor any sum due under the Contract within the
specified period, has failed to approve any invoice or supporting documents without just cause
pursuant to the Appendix to the Contract Agreement titled Terms and Procedures of Payment, or
commits a substantial breach of the Contract, the Contractor may give a notice to the Procuring
Entity that requires payment of such sum, with interest there on as stipulated in GCC Sub-Clause
12.3, requires approval of such invoice or supporting documents, or specifies the breach and
requires the Procuring Entity to remedy the same, as the case may be. If the Procuring Entity fails
to pay such sum together with such interest, fails to approve such invoice or supporting documents
or give its reasons for withholding such approval, fails to remedy the breach or take steps to remedy
the breach within fourteen (14) days after receipt of the Contractor's notice, or The Contractor is
unable to carry out any of its obligations under the Contract for any reason attributable to the
Procuring Entity, including but not limited to the Procuring Entity's failure to

113
 provide possession of or access to the Site or other areas or failure to obtain any governmental
permit necessary for the execution and/or completion of the Facilities, then the Contractor may
give a notice to the Procuring Entity thereof, and if the Procuring Entity has failed to pay the
outstanding sum, to approve the invoice or supporting documents, to give its reasons for
withholding such approval, or to remedy the breach within twenty-eight (28) days of such notice,
or if the Contractor is still unable to carry out any of its obligations under the Contract for any
reason attributable to the Procuring Entity within twenty-eight (28) days of the said notice, the
Contractor may by a further notice to the Procuring Entity referring to this GCC Sub-Clause 42.3.1,
forth with terminate the Contract.

42.3.2 The Contractor may terminate the Contract forth with by giving a notice to the Procuring Entity to
that effect, referring to this GCC Sub-Clause 42.3.2, if the Procuring Entity becomes bankrupt or
insolvent, has a receiving order issued against it, compounds with its creditors, or, being a
corporation, if are solution is passed or order is made for its winding up (other than a voluntary
liquidation for the purposes of amalgamation or reconstruction), a receiver is appointed over any
part of its undertaking or assets, or if the Procuring Entity takes or suffers any other analogous
action in consequence of debt.

42.3.3 If the Contract is terminated under GCC Sub-Clauses 42.3.1 or 42.3.2, then the Contractor shall
immediately cease all further work, except for such work as may be necessary for the purpose of
protecting that part of the Facilities already executed, or any work required to leave the Site in a
clean and safe condition terminate all subcontracts, except those to be assigned to the Procuring
Entity pursuant to paragraph(ii) remove all Contractor's Equipment from the Site and repatriate the
Contractor's and its Subcontractors' personnel from the Site, and subject to the payment specified in
GCC Sub-Clause 42.3.4, deliver to the Procuring Entity the parts of the Facilities executed by the
Contractor up to the date of termination to the extent legally possible, assign to the Procuring Entity
all right, title and benefit of the Contractor to the Facilities and to the Plant as of the date of
termination, and, as may be required by the Procuring Entity, in any subcontracts concluded
between the Contractor and its Subcontractors, and deliver to the Procuring Entity all drawings,
specifications and other documents prepared by the Contractor or its Subcontractors as of the date
of termination in connection with the Facilities.

42.3.4 If the Contract is terminated under GCC Sub-Clauses 42.3.1 or 42.3.2, the Procuring Entity shall
pay to the Contractor all payments specified in GCC Sub-Clause 42.1.3, and reasonable
compensation for all loss, except for loss of profit, or damage sustained by the Contractor arising
out of, in connection with or in consequence of such termination.

42.3.5 Termination by the Contractor pursuant to this GCC Sub-Clause 42.3 is without prejudice to any
other rights or remedies of the Contractor that may be exercised in lieu of or in addition to rights
conferred by GCC Sub-Clause 42.3.

42.4 In this GCC Clause 42, the expression “Facilities executed” shall include all work executed,
Installation Services provided, and all Plant acquired, or subject to a legally binding obligation to
purchase, by the Contractor and used or intended to be used for the purpose of the Facilities, up
to and including the date of termination.

42.5 In this GCC Clause 42, in calculating any monies due from the Procuring Entity to the Contractor,
account shall be taken of any sum previously paid by the Procuring Entity to the Contractor under
the Contract, including any advance payment paid pursuant to the Appendix to the Contract
Agreement titled Terms and Procedures of Payment.

Assignment

43.1 Neither the Procuring Entity nor the Contractor shall, without the express prior written consent of the
other Party, which consent shall not be unreasonably withheld, assign to any third Party the
Contract or any part thereof, or any right, benefit, obligation or interest therein or thereunder,

114
 except that the Contractor shall be entitled to assign either absolutely or by way of charge any
monies due and payable to it or that may become due and payable to it under the Contract.

Export Restrictions

44.1 Notwithstanding any obligation under the Contract to complete all export formalities, any export
restrictions attributable to the Procuring Entity, to Kenya or to the use of the Plant and Installation
Services to be supplied which arise from trade regulations from a country supplying those Plant and
Installation Services, and which substantially impede the Contractor from meeting its obligations
under the Contract, shall release the Contractor from the obligation to provide deliveries or services,
always provided, however, that the Contractor can demonstrate to the satisfaction of the Procuring
Entity and of the Bank that it has completed all formalities in a timely manner, including applying
for permits, authorizations and licenses necessary for the export of the Plant and Installation Services
under the terms of the Contract. Termination of the Contract on this basis shall be for the Procuring
Entity's convenience pursuant to Sub-Clause 42.1.

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 Claims, Disputes and Arbitration

Contractor's Claims

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

45.2 If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion
shall not be extended, the Contractor shall not be entitled to additional payment, and the Procuring
Entity shall be discharged from all liability in connection with the claim. Otherwise, the following
provisions of this Sub-Clause shall apply. The Contractor shall also submit any other notices which
are required by the Contract, and supporting particulars for the claim, all as relevant to such event
orcircumstance. The Contractor shall keep such contemporary records as may be necessary to
substantiate any claim, either on the Site or at another location acceptable to the Project Manager.
Without admitting the Procuring Entity's liability, the Project Manager may, after receiving any notice
under this Sub- Clause, monitor the record-keeping and/or instruct the Contractor to keep further
contemporary records. The Contractor shall permit the Project Manager to inspect all these records,
and shall (if instructed) submit copies to the Project Manager.

45.3 Within 42 days after the Contractor became aware (or should have become aware) of the event or
circumstance giving rise to the claim, or within such other period as may be proposed by the
Contractor and approved by the Project Manager, the Contractor shall send to the Project Manager
a fully detailed claim which includes full supporting particulars of the basis of the claim and of the
extension of time and/or additional payment claimed. If the event or circumstance giving rise to the
claim has a continuing effect: this fully detailed claim shall be considered as interim; the Contractor
shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount
claimed, and such further particulars as the Project Manager may reasonably require; and the
Contractor shall send a final claim within 28 days after the end of the effects resulting from the
event or circumstance, or within such other period as may be proposed by the Contractor and
approved by the Project Manager.

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

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

45.6 The Project Manager shall agree with the Contractor or estimate: (i) the extension (if any) of the
Time for Completion (before or after its expiry) in accordance with GCC Clause 40, and/or (ii) the
additional payment (if any) to which the Contractor is entitled under the Contract.

45.7 The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which may
apply to a claim. If the Contractor fails to comply with this or another Sub-Clause in relation to any
claim, any extension of time and/or additional payment shall take account of the extent (if any) to
which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is
excluded under the second paragraph of this Sub-Clause.
45.8 In the event that the Contractor and the Procuring Entity cannot agree on any matter relating to a
claim, either Party may refer the matter to the Dispute Board pursuant to GCC 46 hereof.

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 Claims, Disputes and Arbitration
46.1 Contractor's Claims

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

46.1.2 If the Contractor fails to give notice of a claim within such period of 28 days, the Time for
Completionshall not be extended, the Contractor shall not be entitled to additional payment, and
the Procuring Entity shall be discharged from all liability in connection with the claim. Otherwise,
the following provisions of this Sub-Clause shall apply. The Contractor shall also submit any other
notices which are required by the Contract, and supporting particulars for the claim, all as relevant
to such event or circumstance.

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

46.1.4 Within 42 days after the Contractor became aware (or should have become aware) of the event or
circumstance giving rise to the claim, or within such other period as may be proposed by the
Contractor and approved by the Project Manager, the Contractor shall send to the Project Manager
a fully detailed claim which includes full supporting particulars of the basis of the claim and of the
extension of time and/or additional payment claimed. If the event or circumstance giving rise to
the claim has a continuing effect: this fully detailed claim shall be considered as interim; the
Contractor shall send further interim claims at monthly intervals, giving the accumulated delay
and/or amount claimed, and such further particulars as the Project Manager may reasonably require;
and the Contractor shall send a final claim within 28 days after the end of the effects resulting from
the event or circumstance, or within such other period as may be proposed by the Contractor and
approved by the Project Manager.

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

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

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

46.1.8 If the Project Manager does not respond within the timeframe defined in this Clause, either Party
may consider that the claim is rejected by the Project Manager and any of the Parties may refer the
matter to Arbitration in accordance with Sub-Clause 46.4.

117
46.1.9 The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which may
apply to a claim. If the Contractor fails to comply with this or another Sub-Clause in relation to any
claim, any extension of time and/or additional payment shall take account of the extent (if any) to
which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is
excluded under the second paragraph of this Sub-Clause.
46.2 Issuing a Notice of Dissatisfaction

If a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out
of, the Contract or the execution of the Works, including any dispute as to any certificate,
determination, instruction, opinion or valuation of the Project Manager, either Party may refer the
dispute in writing to the Project Manager by issuing a Notice of Dissatisfaction and requesting the
matter be referred to Arbitration.

46.3 Amicable Settlement

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

46.4 Arbitration

46.4.1 Any dispute between the Parties arising out of or in connection with the Contract not settled
amicably in accordance with Sub-Clause 46.3 above shall be finally settled by arbitration. Arbitration
shall be conducted as follows: if the contract is with foreign contractors, the dispute shall be referred
to international arbitration either: with proceedings administered by the arbitration institution
designated in the Special Conditions of Contract, and conducted under the rules of arbitration of
such institution; or, if so specified in the Special Conditions of Contract, or international arbitration
in accordance with the arbitration rules of the United Nations Commission on International Trade
Law (UNCITRAL), unless specified otherwise in the SCC; if the Contract is with domestic contractors,
arbitration with proceedings conducted in accordance with the Arbitration Laws of Kenya.

46.4.2 The place of arbitration shall be the neutral location specified in the Special Conditions of Contract;
and the arbitration shall be conducted in the English Language for all communications.

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

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

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

46.4.6 The Decision of the Arbitration proceedings will be final and binding on both parties.

118
 SECTION IX - SPECIAL CONDITIONS OF CONTRACT

The following Special Conditions of Contract shall supplement the General Conditions of Contract in Section
VIII. Whenever there is a conflict, the provisions herein shall prevail over those in the General Conditions.

Special Conditions of Contract (SCC)

The following Special Conditions (SCC) shall supplement the General Conditions (GCC). Whenever there
is a conflict, the provisions here in shall prevail over those in the GCC. The clause number of the SCC is
the corresponding clause number of the GCC.

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

SCC 1. Definitions The Procuring Entity is: Kenyatta National Hospital

The Project Manager is: Engineer - KNH
Country of Origin: all countries and territories as indicated in Section V of the
Tendering Document, Eligible Countries.

SCC 5.1 The Contract shall be interpreted in accordance with the laws of:
SCC 5. Law and
Kenya.
Language
SCC 5.2 The ruling language is: English
SCC 5.3 The language for communications is: English
SCC 7. Scope of SCC 7.3 The Contractor agrees to supply spare parts for a period of years:

Facilities [Spare
Parts] (GCC Clause Sample Addition to SCC 7.3
7) The Contractor shall carry sufficient inventories to ensure an ex-stock supply of
consumable spares for the Plant.
Other spare parts and components shall be supplied as promptly as possible, but at
the most within six (6) months of placing the order and opening the Form of credit.
In addition, in the event of termination of the production of spare parts, advance
notification will be made to the Procuring Entity of the pending termination, with
sufficient time to permit the Procuring Entity to procure the needed requirement.

Following such termination, the Contractor will furnish to the

extent possible and at no cost to the Procuring Entity the blueprints, drawings and
specifications of
the spare parts, if requested.
SCC 8.1 The Contractor shall commence work on the Facilities within from the
SCC 8. Time for
Effective Date for determining Time for Completion as specified in the Contract
Commencement Agreement.
and
Completion SCC 8.2 The Time for Completion of the whole of the Facilities shall be 6
months from the Effective Date as described in the Contract Agreement

SCC 9. Contractor’s The following sustainable procurement contractual provisions apply:

Responsibilities
SCC 11.2 The Contract Price shall be adjusted in accordance with the provisions
SCC 11. Contract of the
Appendix to the Contract Agreement Titled Adjustment Clause.
Price

119
 SCC 13.3.1 The amount of Performance Security, as a percentage of the Contract
SCC 13. Securities Price for the
Facility or for the part of the Facility for which a separate Time for Completion is
provided, shall be: (10%) in form of Bank Guarantee.
SCC 13.3.2 The Performance Security shall be in the form of the attached hereto
in Section X, Contract Forms.
SCC 13.3.3 The Performance Security shall not be reduced on the date of the
Operational
Acceptanc
e.
SCC 13.3.3 The Performance Security shall be reduced to ten percent (10%) of the
value of the
component covered by the extended defect liability to cover the Contractor’s
extended defect
liability in accordance with the provision in the SCC, pursuant to GCC Sub-Clause
27.10.

SCC22.2.5 Working Hours

SCC 22 Installation
Normal working hours are:
Number of GC Amendments of, and Supplements to, Clauses in the General Conditions of Contract
Clause
SCC 22.2.8 Funeral Arrangements:

SCC 25. SCC 25.2.2 The Guarantee Test of the Facilities shall be successfully completed
within _
Commissioning and from the date of Completion.
Operational
Acceptance
SCC 26. SCC 26.2
Completion
Time Guarantee Applicable rate for liquidated damages: 1% per month
The above rate applies to the price of the part of the Facilities, as quoted in the Price
Schedule, for
that part for which the Contractor fails to achieve Completion within the particular
Time for
Completion.
Maximum deduction for liquidated damages: 25% of the contract sum
SCC 26.3 Applicable (amount or rate) for the bonus for early Completion:
Maximum bonus: N/A
SCC 26.3 No bonus will be given for earlier Completion of the Facilities or part
thereof. N/A
SCC 27. Defect SCC 27.10 The critical components covered under the extended defect liability are
In the specifications , and the period shall be 6 months from date of completion
Liability (to be inserted only when
an extended defect liability is requested).

SCC 30. Limitation Sample Clause

of Liability SCC 30.1 (b) The multiplier of the Contract Price is:

SCC 39. Value SCC 39.1.2 If the value engineering proposal is approved by the Procuring Entity the
amount to be
paid to the Contractor shall be % (insert appropriate percentage. The
Engineering percentage is normally up
to 50%) of the reduction in the Contract Price

SCC 46.4(a)(ii) [Insert rules of arbitration if different from those of the International Chamber of
Commerce]
Arbitration

120
SECTION VIII - CONTRACT FORMS

Notification of Award - Form of Acceptance

Contract Agreement
Appendix 1. Terms and Procedures of
Payment Appendix 2. Price Adjustment
Appendix 3. Insurance
Requirements Appendix 4. Time
Schedule
Appendix 5. List of Major Items of Plant and Installation Services and List of Approved
Subcontractors Appendix 6. Scope of Works and Supply by the Procuring Entity Appendix 7.
List of Documents for Approval or Review
Appendix 8. Functional Guarantees

Performance Security Form OPTION 1 – Demand Bank

Guarantee Performance Security Form OPTION 2 –
Performance Bond Advance Payment Security- Demand
Bank Guarantee Beneficial Ownership Disclosure

121
 NOTIFICATION OF INTENTION TO AWARD

[This Notification of Intention to Award shall be sent to each Tenderer that

submitted a Tender.] [Send this Notification to the Tenderer's Authorized
Representative named in the Tenderer Information Form]
1) For the attention of Tenderer's Authorized Representative Name ................. [insert Authorized
Representative's name]
Address .................... [insert Authorized Representative's Address]
Telephone/Fax numbers .................. [insert Authorized Representative' s telephone /fax numbers]

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

[IMPORTANT: insert the date that this Notification is transmitted to Tenderers. The
Notification must be sent to all Tenderers simultaneously. This means on the same date and as
close to the same time as possible.]
DATE OF TRANSMISSION: This Notification is sent by: [email/fax] on [date] (local time)

Notification of Intention to Award

Procuring Entity ...................[insert the name of the Procuring Entity]
Project...............................[insert name of project]
Contract title .................. [insert the name of the contract]
ITT No............................[insert ITT reference number from Procurement Plan]

This Notification of Intention to Award (Notification) notifies you of our decision to award
the above contract. The transmission of this Notification begins the Standstill Period. During
the Standstill Period, you may:
Request a debriefing in relation to the evaluation of your Tender, and/or
Submit a Procurement-related Complaint in relation to the decision to award the contract.
The successful Tenderer
Name: [insert name of successful Tenderer]
Address: [insert address of the successful Tenderer]

Contract price: [insert contract price of the successful Tender]

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

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

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

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

122
 Reason/s why your Tender was unsuccessful

[INSTRUCTIONS: State the reasons/why this Tenderer's Tender was unsuccessful. Do NOT include: (a) appoint
by point comparison with another Tenderer's Tender, or (b) information that is marked “Confidential” by the
Tenderer in its Tender.]

How to request a debriefing?

DEADLINE: The deadline to request a debriefing expires at midnight on [insert date] (local time).
You may request a debriefing in relation to the results of the evaluation of your Tender. If you decide to request a
debriefing, your written request must be made within three (3) Business Days of receipt of this Notification of
Intention to Award.
Provide the contract name, reference number, name of the Tenderer, contact details; and address the request for
debriefing as follows:
Attention:............................. [insert full name of person, if applicable]
Title/position ....................... [insert title/position]
Agency .................................[insert name of Procuring
Entity] Email address ..................... [insert email address]
Fax number ....................... [insert fax number] delete if not used
If your request for a debriefing is received within the 3 Business Days deadline, we will provide the debriefing
within five (5) Business Days of receipt of your request. If we are unable to provide the debriefing within this
period, the Standstill Period shall be extended by five (5) Business Days after the date that the debriefing is
provided. If this happens, we will notify you and confirm the date that the extended Standstill Period will end.
The debriefing may be in writing, by phone, video conference call or in person. We shall promptly advise you
in writing how the debriefing will take place and confirm the date and time.
If the deadline to request a debriefing has expired, you may still request a debriefing. In this case, we will provide
the debriefing as soon as practicable, and normally no later than fifteen (15) Business Days from the date of
publication of the Contract Award Notice.

How to make a complaint

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

midnight, [insertdate] (local time).
Provide the contract name, reference number, name of the Tenderer, contact details; and
address the Procurement- related Complaint as follows:

Attention: [insert full name of person, if

......................................... applicable]
Title/position: ........... [insert title/position]
..............................
Agency: [insert name of Procuring Entity]
.........................................
Email address: [insert email address]
.........................................
Fax number: [insert fax number] delete if not
......................................... used

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

123
 Further information: For more information refer to the Public Procurement and Disposals Act 2015
and its Regulations available from the Website: [email protected] or [email protected].
In summary, there are four essential requirements:
You must bean' interested party'. In this case, that means a Tenderer who submitted a Tender in thisTendering
process, and is the recipient of a Notification of Intention to Award.
The complaint can only challenge the decision to award the
contract. You must submit the complaint within the period
stated above.
You must include, in your complaint, all of the information required by the Procurement Regulations (as
described in Annex III).

Standstill Period

DEADLINE: The Standstill Period is due to end at midnight on [insert date] (local time).
The Standstill Period lasts ten (10) Business Days after the date of transmission of this Notification of Intention
to Award.
The Standstill Period may be extended as stated in Section 4 above.

If you have any questions regarding this Notification please do not hesitate to
contact us. On behalf of the Procuring Entity:

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

124
 REQUEST FOR REVIEW

FORM FOR REVIEW (r.203(1))

PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD

APPLICATION NO…………….OF……….….20……...

BETWEEN

….....................................................................................APPLICA

NTAND

… .............................................. RESPONDENT (Procuring Entity)

Request for review of the decision of the…………… (Name of the Procuring Entity of .................. dated
the…day of
………….20……….in the matter of Tender No………..…of …………..20….. for (Tender description).

REQUEST FOR REVIEW

I/We……………………………,the above named Applicant(s), of address: Physical address ................. P. O. Box
No………….
Tel. No……..Email.................. , hereby request the Public Procurement Administrative Review Board to review the
whole/part of
the above mentioned decision on the following
grounds , namely:1.
2.
By this memorandum, the Applicant requests the Board for an
order/orders that:1.
2.
SIGNED ……………….(Applicant) Dated on…………….day of ……………/…20……

FOR OFFICIAL USE ONLY Lodged with the Secretary Public Procurement Administrative Review Board on day
of
………....20….………
SIGNED
Board Secretary

125
3. LETTER OF AWARD

To:
This is to notify you that your Tender dated for execution of the for the
Contract Price in the aggregate of , as and modified accordanc
corrected in e
with the Instructions to Tenderers is hereby accepted by our Agency.

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

Authorized Signature: .........................................................................................

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

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

Attachment: Contract Agreement: ......................................................................

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4. CONTRACT AGREEMENT

THIS AGREEMENT is made the day of , ,

BETWEEN

1) ………………a corporation incorporated under the laws of and having its

principal place of business at.................... (hereinafter called “the Procuring Entity”), and (2)
, a corporation incorporated under the laws of and
having its principal place of business at (herein after called “the Contractor”).

WHEREAS the Procuring Entity desires to engage the Contractor to design, manufacture, test,
deliver, install, complete and commission certain Facilities, viz. (“the Facilities”), and the
Contractor has agreed to such engagement upon and subject to the terms and conditions herein
after appearing.

NOW IT IS HEREBY AGREED as follows:

Article 1. Contract Documents

1.1 Contract Documents (Reference GCC Clause2)

The following documents shall constitute the Contract between the Procuring Entity and the
Contractor, and each shall be read and construed as an integral part of the Contract:
This Contract Agreement and the Appendices hereto
Form of Tender and Price Schedules submitted by the
Contractor Special Conditions of Contract
General Conditions of
Contract Specification
Drawings
Other completed Tendering forms submitted with the Tender
Any other documents forming part of the Procuring Entity's
Requirements Any other documents shall be added here

1.2 Order of Precedence (Reference GCC Clause2)

In the event of any ambiguity or conflict between the Contract Documents listed above, the
order of precedence shall be the order in which the Contract Documents are listed in
Article1.1 (Contract Documents) above.

1.3 Definitions (Reference GCC Clause1)

Capitalized words and phrases used here in shall have the same meanings as ascribed to them in theGeneral
Conditions.

Article 2. Contract Price and Terms of Payment

2.1 Contract Price (Reference GCC Clause11)

The Procuring Entity hereby agrees to pay to the Contractor the Contract Price in consideration of
the performance by the Contractor of its obligations hereunder. The Contract Price shall be the
aggregate of:
……………………………...………………as specified in Price Schedule No 5 (Grand Summary),
and , , or such other sums as may be determined in accordance

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 with the terms and conditions of the Contract.

2.2 Terms of Payment (Reference GCC Clause 12)

The terms and procedures of payment according to which the Procuring Entity will
reimburse the Contractor are given in the Appendix (Terms and Procedures of Payment)
hereto.

The Procuring Entity may instruct its bank to issue an irrevocable confirmed documentary credit
made available to the Contractor in a bank in the country of the Contractor. The credit shall be
for an amount of and shall be subject to the Uniform Customs and Practice
for Documentary Credits 2007 Revision, ICC Publication No.600.

In the event that the amount payable under Schedule No.1 is adjusted in accordance with GCC 11.2
or with any of the other terms of the Contract, the Procuring Entity shall arrange for the documentary
credit to be amended accordingly.

Article 3. Effective Date

3.1 Effective Date (Reference GCC Clause1)

The Effective Date from which the Time for Completion of the Facilities shall be counted is the
date when all of the following conditions have been fulfilled:
This Contract Agreement has been duly executed for and on behalf of the Procuring
Entity and the Contractor;
The Contractor has submitted to the Procuring Entity the Performance Security
and the advance payment guarantee;
The Procuring Entity has paid the Contractor the advance payment
The Contractor has been advised that the documentary credit referred to in Article 2.2
above has been issued in its favor.

Each party shall use its best efforts to fulfill the above conditions for which it is responsible as
soon as practicable.

3.2 If the conditions listed under 3.1 are not fulfilled within two (2) months from the date of this Contract
notification because of reasons not attributable to the Contractor, the Parties shall discussand agree
on an equitable adjustment to the Contract Price and the Time for Completion and/or other relevant
conditions of the Contract.

Article 4. Communications

4.1 The address of the Procuring Entity for notice purposes, pursuant to GCC 4.1is: .

4.2 The address of the Contractor for notice purposes, pursuant to GCC 4.1is: .

Article 5. Appendices

5.1 The Appendices listed in the attached List of Appendices shall be deemed to form an integral
part of this Contract Agreement.
5.2 Reference in the Contract to any Appendix shall mean the Appendices attached here to, and the
Contract shall be read and construed accordingly.

IN WITNESS WHEREOF the Procuring Entity and the Contractor have caused this Agreement to
be duly executed by their duly authorized representatives the day and year first above written.

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Signed by, for and on behalf of the Procuring Entity

. .......................................................... [Signature]

. .......................................................... [Title]
in the presence of

Signed by, for and on behalf of the Contractor

. .......................................................... [Signature]

. .......................................................... [Title]
in the presence of

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APPENDICES

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APPENDIX 1: TERMS AND PROCEDURES OF PAYMENT
In accordance with the provisions of GCC Clause12 (Terms of Payment), the Procuring Entity shall pay the
Contractor in the following manner and at the following times, on the basis of the Price Break down given
in the section on Price Schedules. Payments will be made in the currencies quoted by the Tenderer unless
otherwise agreed between the Parties. Applications for payment in respect of part deliveries may be made
by the Contractors work proceeds.

TERMS OF PAYMENT

Schedule No. 1. Plant and Equipment Supplied from Abroad

In respect of plant and equipment supplied from abroad, the following payments shall be made:

Ten percent (10%) of the total CIP amount as an advance payment against receipt of invoice and an
irrevocable advance payment security for the equivalent amount made out in favor of the Procuring Entity.
The advance payment security may be reduced in proportion to the value of the plant and equipment
delivered to the site, as evidenced by shipping and delivery documents.

Eighty percent (80%)of the total or pro rata CIP amount upon Incoterm “CIP”, upon delivery to the
carrier within forty- five (45) days after receipt of documents.

Five percent (5%) of the total or pro rata CIP amount upon issue of the Completion Certificate, within forty-five
(45) days after receipt of invoice.

Five percent (5%) of the total or pro rata CIP amount upon issue of the Operational AcceptanceCertificate,
within forty- five (45) days after receipt of invoice.

Schedule No. 2. Plant and Equipment Supplied from within Kenya

In respect of plant and equipment supplied from Kenya, the following payments shall be made:

Ten percent (10%) of the total EXW amount as an advance payment against receipt of invoice, and an
irrevocable advance payment security for the equivalent amount made out in favor of the Procuring Entity.
The advance payment security may be reduced in proportion to the value of the plant and equipment
delivered to the site, as evidenced by shipping and delivery documents.

Eighty percent (80%) of the total or pro rata EXW amount upon Incoterm “Ex-Works,” upon delivery to
the carrier within forty-five (45) days after receipt of invoice and documents.

Five percent (5%) of the total or pro rata EXW amount upon issue of the Completion Certificate,
within forty-five (45) days after receipt of invoice.

Five percent (5%) of the total or pro rata EXW amount upon issue of the Operational AcceptanceCertificate,
within forty-five (45) days after receipt of invoice.

Schedule No. 3. Design Services

In respect of design services for both the foreign currency and the local currency portions, the following payments
shall be made:

Ten percent (10%) of the total design services amount as an advance payment against receipt of
invoice, and an irrevocable advance payment security for the equivalent amount made out in favor of
the Procuring Entity.

Ninety percent (90%) of the total or pro rata design services amount upon acceptance of design in
accordance with GCC Clause 20 by the Project Manager within forty-five (45) days after receipt of
invoice.

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 Schedule No. 4. Installation Services

In respect of installation services for both the foreign and local currency portions, the following
payments shall be made:

Ten percent (10%) of the total installation services amount as an advance payment against receipt of
invoice, and an irrevocable advance payment security for the equivalent amount made out in favor of the
Procuring Entity. The advance payment security may be reduced in proportion to the value of work
performed by the Contractor as evidenced by the invoices for installation services.

Eighty percent (80%) of the measured value of work performed by the Contractor, as identified in the said
Program of Performance, during the preceding month, as evidenced by the Procuring Entity's authorization
of the Contractor's application, will be made monthly within forty-five (45) days after receipt of invoice.

Five percent (5%) of the total or pro rata value of installation services performed by the Contractor as
evidenced by the Procuring Entity's authorization of the Contractor's monthly applications, upon issue of
the Completion Certificate, within forty-five (45) days after receipt of invoice.

Five percent (5%) of the total or pro rata value of installation services performed by the Contractor as
evidenced by the Procuring Entity's authorization of the Contractor's monthly applications, upon issue of
the Operational Acceptance Certificate, within forty-five (45) days after receipt of invoice.

In the event that the Procuring Entity fails to make any payment on its respective due date, the Procuring
Entity shall pay
to the Contractor interest on the amount of such delayed payment at the rate of
] percent (%) per month for period of delay until payment has been made in full.

PAYMENT PROCEDURES

The procedures to be followed in applying for certification and making payments shall be as follows:

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 APPENDIX 2. PRICE ADJUSTMENT

Where the Contract Period (excluding the Defects Liability Period) exceeds eighteen (18) months,
it is normal procedure that prices payable to the Contractor shall be subject to adjustment during the
performance of the Contract to reflect changes occurring in the cost of labor and material
components. In such cases the Tendering document shall include in this Appendix 2 a formula of the
following general type, pursuant to GCC Sub-Clause 11.2.

Where Contracts are of a shorter duration than eighteen (18) months or in cases where there is to be
no Price Adjustment, the following provision shall not be included. Instead, it shall be indicated
under this Appendix 2 that the prices are to remain firm and fixed for the duration of the Contract.

Sample Price Adjustment Formula

If in accordance with GCC 11.2, prices shall be adjustable, the following method shall be used to calculate
the price adjustment:
Prices payable to the Contractor, in accordance with the Contract, shall be subject to adjustment during
performance of the Contract to reflect changes in the cost of labor and material components, in accordance
with the following formula:

P1 P0 (a b L1 c M 1 P0
L0 M0

in which:
P1 = adjustment amount payable to the Contractor

P0 = Contract price (base price)

= percentage of fixed element in Contract price (a = %)

= percentage of labor component in Contract price (b= %)

= percentage of material and equipment component in Contract price (c= %)

L0, L1 = labor indices applicable to the appropriate industry in the country of origin on the base date and the date
foradjustment, respectively

M0, M1= material and equipment indices in the country of origin on the base date and the date for
adjustment,respectively
N.B. a+b+c= 100%.

Conditions Applicable to Price Adjustment

The Tenderer shall indicate the source of labor and materials indices, source of exchange rates and the base
date indicesin its Tender.

Item Source of Indices Used Base Date Indices

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The base date shall be the date twenty-eight (28) days prior to the Tender closing date.

The date of adjustment shall be the mid-point of the period of manufacture or installation of

component or Plant. The following conditions shall apply:

No price increase will be allowed beyond the original delivery date unless covered by an extension of time
awarded by the Procuring Entity under the terms of the Contract. No price increase will be allowed for
periods of delay for which the Contractor is responsible. The Procuring Entity will, however, be entitled to any
price decrease occurring during such periods of delay.

If the currency in which the Contract price, P0, is expressed is different from the currency of the country of
origin of the labor and/or materials indices, a correction factor will be applied to avoid incorrect adjustments of
the Contract price. The correction factor shall be: Z0 / Z1, where,

Z0 = the number of units of currency of the origin of the indices which equal to one unit of the currency of
the Contract Price P0 on the Base date, and

Z1 = the number of units of currency of the origin of the indices which equal to one unit of the currency of the
Contract Price P0 on the Date of Adjustment.

No price adjustment shall be payable on the portion of the Contract price paid to the Contractor as
an advance payment.

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APPENDIX 3. INSURANCE REQUIREMENTS

Insurances to be Taken Out by the Contractor

In accordance with the provisions of GCC Clause 34, the Contractor shall at its expense take out and
maintain in effect, or cause to be taken out and maintained in effect, during the performance of the
Contract, the insurances set forth below in the sums and with the deductibles and other conditions
specified. The identity of the insurers and the form of the policies shall be subject to the approval of the
Procuring Entity, such approval not to be unreasonably withheld.

Cargo Insurance
Covering loss or damage occurring, while in transit from the supplier's or manufacturer's works or stores
until arrival at the Site, to the Facilities (including spare parts therefor) and to the construction equipment
to be provided by the Contractor or its Subcontractors.

Amount Deductible Limits Parties insured from To

Installation All Risks Insurance

Covering physical loss or damage to the Facilities at the Site, occurring prior to completion of the Facilities,
with an extended maintenance coverage for the Contractor's liability in respect of any loss or damage
occurring during the defect liability period while the Contractor is on the Site for the purpose of performing
its obligations during the defect liability period.

Amount Deductible Limits Parties insured from To

Third Party Liability Insurance

Covering bodily injury or death suffered by third parties (including the Procuring Entity's personnel) and
loss of or damage to property (including the Procuring Entity's property and any parts of the Facilities that
have been accepted by the Procuring Entity) occurring in connection with the supply and installation of the
Facilities.

Amount Deductible Limits Parties insured from To

Automobile Liability Insurance

Covering use of all vehicles used by the Contractor or its Subcontractors (whether or not owned by them) in
connection with the supply and installation of the Facilities. Comprehensive insurance in accordance with
statutory requirements.

Workers' Compensation
In accordance with the statutory requirements applicable in any country where the Facilities or any part
thereof is executed.

Procuring Entity's Liability

In accordance with the statutory requirements applicable in any country where the Facilities or any part
thereof is executed.

Other Insurances
The Contractor is also required to take out and maintain at its own cost the following insurances:

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Details:

Amount Deductible Limits Parties insured from To The Procuring Entity shall be named as co-insured under all
insurance policies taken out by the Contractor pursuant to GCC Sub-Clause 34.1, except for the Third-Party
Liability, Workers' Compensation and Procuring Entity's Liability Insurances, and the Contractor's
Subcontractors shall be named as co-insureds under all insurance policies taken out by the Contractor pursuant
to GCC Sub-Clause 34.1, except for the Cargo, Workers' Compensation and Procuring Entity's Liability
Insurances. All insurer's rights of subrogation against such co-insureds for losses or claims arising out of the
performance of the Contract shall be waived under such policies.

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Insurances to Be Taken Out by the Procuring Entity

The Procuring Entity shall at its expense take out and maintain in effect during the performance of the Contract
the following insurances.

Details:

Amount Deductible Limits Parties insured from To

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APPENDIX 4. TIME SCHEDULE

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APPENDIX 5. APPROVED SUBCONTRACTORS

A list of major items of Plant and Installation Services is provided below.

The following Subcontractors and/or manufacturers are approved for carrying out the items of the Facilities
indicated below. Where more than one Subcontractor is listed, the Contractor is free to choose between
them, but it must notify the Procuring Entity of its choice in good time prior to appointing any selected
Subcontractor. In accordance with GCC Sub-Clause 19.1, the Contractor is free to submit proposalsfor
Subcontractors for additional items from time to time. No Subcontracts shall be placed with any such
Subcontractors for additional items until the Subcontractors have been approved in writing by the Procuring
Entity and their names have been added to this list of Approved Subcontractors.

Major Items of Plant and Approved Subcontractors/Manufacturers Nationality

Installation Services

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APPENDIX 6. SCOPE OF WORKS AND SUPPLY BY THE PROCURING ENTITY

The following personnel, facilities, works and supplies will be provided/supplied by the Procuring
Entity, and the provisions of GCC Clauses 10, 21 and 24 shall apply as appropriate.

All personnel, facilities, works and supplies will be provided by the Procuring Entity in good time so as not
to delay the performance of the Contractor, in accordance with the approved Time Schedule and Program
of Performance pursuant to GCC Sub-Clause18.2.

Unless otherwise indicated, all personnel, facilities, works and supplies will be provided free of
charge to the Contractor.

Personnel Charge to Contractor (if any)

Facilities Charge to Contractor (if any)

Works Charge to Contractor (if any)

Supplies Charge to Contractor (if any)

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APPENDIX 7. LIST OF DOCUMENTS FOR APPROVAL OR REVIEW

Pursuant to GCC Sub-Clause 20.3.1, the Contractor shall prepare, or cause its Subcontractor to prepare,
and present to the Project Manager in accordance with the requirements of GCC Sub-Clause 18.2 (Program
of Performance),the following documents for

Approval

1.

2.

3.

Review

1.

2.

3.

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APPENDIX 8. FUNCTIONAL GUARANTEES

General
This Appendix sets out
The functional guarantees referred to in GCC Clause 28 (Functional Guarantees)
The pre-conditions to the validity of the functional guarantees, either in
production and/or consumption, set forth below
The minimum level of the functional guarantees
The formula for calculation of liquidated damages for failure to attain the functional guarantees.

Preconditions
The Contractor gives the functional guarantees (specified herein) for the facilities, subject
to the following preconditions being fully satisfied:

Functional Guarantees
Subject to compliance with the foregoing preconditions, the Contractor guarantees as follows:

Production Capacity

and/or

Raw Materials and Utilities Consumption

Failure in Guarantees and Liquidated Damages

4.1 Failure to Attain Guaranteed Production Capacity

If the production capacity of the facilities attained in the guarantee test, pursuant to GCC Sub-Clause
25.2, is less than the guaranteed figure specified in para. 3.1 above, but the actual production
capacity attained in the guarantee test is not less than the minimum level specified in para. 4.3
below, and the Contractor elects to pay liquidated damages to the Procuring Entity in lieu of making
changes, modifications and/or additions to the Facilities, pursuant to GCC Sub-Clause 28.3,then the
Contractor shall pay liquidated damages at the rate of for every complete one percent (1%) of the
deficiency in the production
capacity of the Facilities, or at a proportionately reduced rate for any deficiency, or part thereof, of
less thana complete one percent (1%).
4.2 Raw Materials and Utilities Consumption in Excess of Guaranteed Level
If the actual measured figure of specified raw materials and utilities consumed per unit (or their
average total cost of consumption) exceeds the guaranteed figure specified in para.3.2 above (or
their specified average total cost of consumption), but the actual consumption attained in the

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 guarantee test, pursuant to GCC Sub-Clause 25.2, is not more than the maximum level specified in
para. 4.3 below, and the Contractor elects to pay liquidated damages to the Procuring Entity in lieu
of making changes, modifications and/or additions to the Facilities pursuant to GCC Sub-Clause
28.3, then the Contractor shall pay liquidated damages at the rate of [ amount in the contract
currency] for every complete one percent (1%) of the excess consumption of the Facilities, or part
thereof, of less than a complete one percent (1%).

4.3 Minimum Levels

Notwithstanding the provisions of this paragraph, if as a result of the guarantee test(s), the following
minimum levels of performance guarantees (and consumption guarantees) are not attained by the
Contractor, the Contractor shall at its own cost make good any deficiencies until the Facilities reach
any of such minimum performance levels, pursuant to GCC Sub-Clause 28.2:
a) production capacity of the Facilities attained in the guarantee test: ninety-five percent (95%) of the
guaranteed production capacity (the values offered by the Contractor in its Tender for functional
guarantees represents 100%).
and/or
average total cost of consumption of all the raw materials and utilities of the Facilities: one
hundred and five percent (105%) of the guaranteed figures (the figures offered by the
Contractor in its Tender for functional guarantees represents 100%).

4.4 Limitation of Liability

Subject to para.4.3 above, the Contractor's aggregate liability to pay liquidated damages for
failure to attain the functional guarantees shall not exceed percent ( %) of the Contractprice.

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PERFORMANCE SECURITY FORM

OPTION 1 – Demand Bank Guarantee

[Guarantor Form head or SWIFT identifier code]

Beneficiary: [insert name and Address of Procuring

Entity]
Date: [Insert date of issue]
PERFORMANCE GUARANTEE No.: [Insert guarantee reference number]
Guarantor: [Insert name and address of place of issue, unless indicated in the Form
head]
We have been informed that (herein after called “the Applicant”) has entered into
Contract No. dated with the Beneficiary, for the
execution of
(herein after called “the Contract”).

Furthermore, we understand that, according to the conditions of the Contract, a performance guarantee is required.

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

This guarantee shall be reduced by half upon our receipt of:

A copy of the Operational Acceptance Certificate; or
a registered Form from the Applicant (i) attaching a copy of its notice requesting issuance of the
Operational Acceptance Certificate and (ii) stating that the Project Manager has failed to issue such
Certificate within the time required or provide in writing justifiable reasons why such Certificate has
not been issued, so that Operational Acceptance is deemed to have occurred.

This guarantee shall expire no later than the earlier of:2

twelve months after our receipt of either (a) or (b)
above; or eighteen months after our receipt of:
a copy of the Completion Certificate; or
a registered Form from the Applicant, attaching a copy of the notice to the Project Manager
that the Facilities are ready for commissioning, and stating that fourteen days have elapsed
from receipt of such notice (or seven days have elapsed if the notice was a repeated notice)
and the Project Manager has failed to issue a Completion Certificate or in form the Applicant in
writing of any defects or deficiencies; or
a registered Form from the Applicant stating that no Completion Certificate has been issued
but the Procuring Entity is making use of the Facilities; or

c) the day of ,2 .3

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

1The Guarantor shall insert an amount representing the percentage of the Contract Price specified in the Contract and
denominated either in the currency (ies) of the
Contract or a freely convertible currency acceptable to the Procuring Entity.
2This text shall be revised as and where necessary to take into account (i) partial acceptance of the Facilities

in accordance with Sub-Clause 25.4 of the GCC; and extension of the Performance Security when the
Contractor is liable for an extended warranty obligation pursuant to Sub-Clause 27.10 of the GCC
(although in this latter case the Procuring Entity might want to consider an extended warranty security in lieu of the
extension of the Performance Security).
This guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010
Revision, ICC Publication No.758, except that the supporting statement under Article15 (a) is
hereby excluded.

[signature(s)]

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

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3Insert the date twenty-eight days after the expected expiration date of the Defect Liability Period. The
Procuring Entity should note that in the event of an extension of the time for completion of the Contract,
the Procuring Entity would need to request an extension of this guarantee from the Guarantor. Such
request must be in writing and must be made prior to the expiration date established in t he guarantee. In
preparing this guarantee, the Procuring Entity might consider adding the following text to the form, at
the end of the pen ultimate paragraph: “The Guarantor agrees to a one-time extension of this guarantee for
a period not to exceed [six months] [one year], in response to the Procuring Entity's written requestfor
such extension, such request to be presented to the Guarantor before the expiry of the guarantee.”

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PERFORMANCE SECURITY OPTION 2 – (Performance Bond)

[Note: Procuring Entities are advised to use Performance Security–Unconditional Demand Bank
Guaranteeinstead of Performance Bond due to difficulties involved in calling Bond holder to action]

[Guarantor Form head or SWIFT identifier code]

Beneficiary: [insert name and Address of Procuring

Entity]

Date: [Insert date of issue]

PERFORMANCE BOND No.:
Guarantor: [Insert name and address of place of issue, unless indicated in the Form
head]

By this Bond as Principal (herein after called “the Contractor”)

and ] as Surety (herein after called “the Surety”), are held
and firmly bound ] as Obliged (herein after called “the Procuring
unto Entity”) in
the amount of for the payment of which sum well and truly to be made in the types and
proportions of
currencies in which the Contract Price is payable, the Contractor and the Surety bind themselves,
their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these
presents.

WHEREAS the Contractor has entered in to a written Agreement with the Procuring Entity dated
the day of,20, for in accordance with the documents, plans, specifications, and
amendments there
to, which to the extent herein provided for, are by reference m a depart here of and are herein after
referred toas the Contract.

NOW, THEREFORE, the Condition of this Obligation is such that, if the Contractor shall promptly and
faithfully perform the said Contract (including any amendments there to), then this obligation shall
be null and void; otherwise, it shall remain in full force and effect. Whenever the Contractor shall be,
and declared by the Procuring Entity to be, in default under the Contract, the Procuring Entity having
performed the Procuring Entity's obligations there under, the Surety may promptly remedy the
default, or shall promptly:
Complete the Contract in accordance with its terms and conditions; or
Obtain a tender or tenders from qualified tenderers for submission to the Procuring Entity for
completing the Contract in accordance with its terms and conditions, and upon determination
by the Procuring Entity and the Surety of the lowest responsive Tenderers, arrange for a
Contract between such Tenderer, and Procuring Entity and make available as work progresses
(even though there should be a default or a succession of defaults under the Contract or
Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of
completion less the Balance of the Contract Price;but not exceeding, including other costs and
damages for which the Surety may be liable here under, the amount set for thin the first
paragraph hereof. The term “Balance of the Contract Price,” as used in this paragraph, shall
mean the total amount payable by Procuring Entity to Contractor under the Contract, less the
amount properly paid by Procuring Entity to Contractor; or
Pay the Procuring Entity the amount required by Procuring Entity to complete the

147
 Contract in accordance with its terms and conditions up to a total not exceeding the
amount of this Bond.

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

Any suit under this Bond must be instituted before the expiration of one year from the date of the
issuing of the Taking-Over Certificate. No right of action shall accrue on this Bond to or for the use
of any person or corporation other than the Procuring Entity named here in or the heirs, executors,
administrators, successors, and assigns of the Procuring Entity.

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

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SIGNED ON on behalf of

By in the

capacity

of in the presence of

SIGNED ON on behalf of

By in the

capacity

of in the presence of

ADVANCE PAYMENT SECURITY - Demand Bank

Guarantee [Guarantor Form head or SWIFT identifier code]

Beneficiary: [Name and Address of Procuring

Entity]

Date: [Insert date of issue]

Advance Payment Guarantee No.: [Insert guarantee reference number]
Guarantor: [Insert name and address of place of issue, unless indicated in the Form
head]

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

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

At the request of the Applicant, we as Guarantor, hereby irrevocably undertake to pay the Beneficiary any
sum or sums not exceeding in total an amount of ( )4 upon receipt by us of the Beneficiary's complying
demand supported by the Beneficiary's statement whether in the demand itself or in a separate signed
document accompanying or identifying the demand, stating either that the applicant:
Has used the advance payment for purposes other than the costs of mobilization in
respect of the Facilities; or
has failed to repay the advance payment in accordance with the Contract conditions,
specifying the amount which the Applicant has failed to repay.

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

The maximum amount of this guarantee shall be progressively reduced by the amount of the advance
payment repaid by the Applicant as indicated in copies of interim statements or payment certificates which
shall be presented to us. This guarantee shall expire, at the latest, upon our receipt of documentation
indicating full repayment by the Applicant of the amount of the advance payment, or on the day of

149
, 5, whichever is earlier. Consequently, any demand for payment under this guarantee must be
receivedby us at this office on or before that date.

This guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010 Revision, ICC
Publication No. 758, except that the supporting statement under Article 15 (a) is hereby excluded.

[signature(s)]

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

4The Guarantor shall insert an amount representing the amount of the advance payment and
denominated either in the currency(ies) of the advance payment as specified in the Contract, or in a freely
convertible currency acceptable to the Procuring Entity.
5InserttheexpectedexpirationdateoftheTimeforCompletion.TheProcuringEntityshouldnotethatintheeventofanextensi

On of thetimeforcompletionofthe
Contract,theProcuringEntitywouldneedtorequestanextensionofthisguaranteefromtheGuarantor.Such request
must beinwritingandmustbemadepriorto
theexpirationdateestablishedintheguarantee.Inpreparingthisguarantee,theProcuringEntitymightconsid eradding
thefollowingtexttotheform,attheendof
thepenultimateparagraph:“TheGuarantoragreestoaone-
timeextensionofthisguaranteeforaperiodnottoexceed[sixmonths][oneyear],inresponsetothe
Beneficiary'swrittenrequestforsuchextension,suchrequesttobepresentedtotheGuarantorbeforetheexpi
ryoftheguarantee.”

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 FORM NO. 4 BENEFICIAL OWNERSHIP DISCLOSURE FORM
(Amended and issued pursuant to PPRA CIRCULAR No. 02/2022)

INSTRUCTIONS TO TENDERERS: DELETE THIS BOX ONCE YOU HAVE COMPLETED THE FORM

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

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

Tender Reference No.: [insert

identification no] Name of the Tender Title/Description: [insert name of
the assignment] to: [insert complete name of Procuring Entity]

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

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

Details of beneficial ownership

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

Email address Indirect………… Direct………

Occupation or ……... …..
profession

Indirect………
…

97
 Details of all Beneficial Owners % of sharesa % of voting Whether a person Whether a
person holds rights a person directly or indirectly person directly
in the holds in the holds a right to or indirectly
company company appoint or remove a exercises
Directly or member of the board significant
indirectly of directors of the influence or
company or an control over the
equivalent governing Company
body of the Tenderer (tenderer) (Yes
(Yes / No) / No)
2. Full Name Directly------ Directly……… 1. Having theright 1.Exercises
----- % …….% of voting to appoint a significant
National identity majority of influence or
of shares rights
card number or theboard control over
Passport number of the the Company
Personal Indirectly---------- directors or body of the
Identification Indirectly---- % of voting an Company
------ % rights equivalent (tenderer)
Number
of shares governing body of Yes No--
(where
applicable) the Tenderer: Yes --
Nationality(ies) -----No----
2. Is this right held 2. Is this
Date of birth directly or influence or
[dd/mm/yyyy] indirectly?: control
Postal address exercised
directly or
Residential address Direct………… indirectly?
Telephone number ………
Direct………
Email address …..
Indirect…………
Occupation or
profession ……...
Indirect………
…

3.

e.t
.c

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

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

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

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

(c) holds a right, directly or indirectly, to appoint or remove a director of the company; or
97
(d) exercises significant influence or control, directly or indirectly, over the company.

97
IV) What is stated to herein above is true to the best of my knowledge, information and belief.

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

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

name of person duly authorized to sign the Tender]

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

signing the Tender]

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

capacity are shown above]

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

Bidder Official Stamp

97
PRE-BID ATTENDANCE FORM – KNH/T/91/2024-2025

(To be returned signed and stamped with the tender document)

This is to confirm that (Company Name) ATTENDED

AMANDATORY PRE-BID MEETING AT KENYATTA NATIONAL HOSPITAL

COMPANY REPRESENTATIVE

NAME

DESIGNATION

SITE VISITED-KENTATTA NATIONAL HOSPITAL

WARDS SIGNED DATE

OFFICIAL STAMP

KENYATTA NATIONAL HOSPITAL REPRESENTATIVE

NAME

DESIGNATION

SIGNED DATE

OFFICIAL STAMP