B I D D I N G D O C U M E N T S

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1 REPUBLIC OF KENYA MINISTRY OF WATER AND IRRIGATION STATE DEPARTMENT OF WATER TANATHI WATER SERVICES BOARD FUNDING DESIGN AND BUILD OF NDARUGU 1 DAM WATER SUPPLY PROJECT B I D D I N G D O C U M E N T S Tender No.:TAWSB/014/ DATE: OCTOBER, 2017 EMPLOYER: The Chief Executive Officer, Tanathi Water Services Board KIDP Building, Kalawa Rd, P.O Box Private Bag KITUI KENYA Tel: tanathiwsb@gmail.com

2 Table of Contents Invitation for Bids... 3 Table of Clauses... 6 Section 1. Instructions to Bidders... 7 A. General... 7 B. Bidding Documents C. Preparation of Bids D. Submission of Bids E. Opening and Evaluation of Technical Proposal F. Opening and Evaluation of Price Proposals G. Award of Contract Bidding Documents Preparation of Bids Submission of Bids Opening and Evaluation of Technical Proposal Opening and Evaluation of Price Proposals Award of Contract Section 2. Part I General Conditions of Contract Section 3. Part II Conditions of Particular Application Section 4. Employer s Requirements Ndarugu 1 Dam Water Scheme Introduction Dam Characteristics Raw Water Transmission Water Treatment Treated Water Transmission Section 5. Technical Specifications Section 6. Forms of Bid and Appendices to Bid Form of Technical Proposal Form of Price Proposal Section 7. Sample Forms Form of Bid Security (Bank Guarantee) Form of Contract Agreement Form of Performance Security Form of Advance Payment Security Section 8. Schedules A. SCHEDULES OF PRICES UNITS OF MEASUREMENTS B. SCHEDULE OF PAYMENT CERTIFICATE Grand Summary C. SCHEDULE OF COEFFICIENT AND INDICES FOR PRICE ADJUSTMENT D. SCHEDULE OF MAJOR ITEMS OF CONSTRUCTIONAL PLANT E. SCHEDULE OF KEY PERSONNEL F. SCHEDULE OF SUBCONTRACTORS Section 9. Drawings Page 2 of 300

3 Invitation for Bids Page 3 of 300

4 INVITATION FOR BIDS Tender No.: TAWSB/014/ Tanathi Water Services Board ('the Employer") invites sealed bids from eligible bidders for funding, design and build and completion of Ndarugu 1 dam water supply project ("the Works") comprising of a Dam and water supply infrastructure. 2. Bidders may acquire the bidding documents, at: Tanathi Water Services Board K.I.D.P. Building, Kalawa Road P.O. Box Private Bag Kitui Tel: tanathiwsb@gmail.com 3. A complete set of bidding documents may be purchased by interested eligible bidders upon payment of a nonrefundable fee of KES 1,000 (One Thousand) or equivalent convertible currency. 4. All bids must be accompanied by a Bid Security of at least 1% of the contract price, on or before hrs. (Local time) on 28 TH November, 2017 and must be delivered to: The Chief Executive Officer Tanathi Water Services Board K.I.D.P. Building, Kalawa Road P.O. Box Private Bag Kitui Tel: tanathiwsb@gmail.com 5. Completed tender documents shall be submitted in plain sealed envelopes with the inner and outer envelopes clearly marked with the following identification: Bid for Funding Design and Build of Ndarugu 1 dam water supply project Bid Reference Number: TAWSB/014/ DO NOT OPEN BEFORE: 28 th November, 2017 ; Hrs East African Time Page 4 of 300

5 Section 1 Instructions to bidders SECTION 1 INSTRUCTIONS TO BIDDERS Page 5 of 300

6 Section 1 - Instruction to Bidders Section 1 Instructions to bidders Table of Clauses A. General 1. Scope of Bid 2. Public Entities Related to Bidding Documents & to challenge & appeal. 3. Corrupt or Fraudulent Practices 4. Eligible Bidders 5. Eligible Materials, Equipment and Services 6. Qualification of the Bidder 7. One Bid per Bidder 8. Cost of Bidding 9. Site Visit B. Bidding Documents 10. Content of Bidding Documents 11. Clarification of Bidding Documents 12. Amendment of Bidding Documents C. Preparation of Bids 13. Language of Bid 14. Documents Comprising the Bid 15. Bid Form and Price Schedules 16. Bid Prices 17. Currencies of Bid and Payment 18. Bid Validity 19. Bid Security 20. Alternative Proposals by Bidders 21. Pre-Bid Meeting 22. Format and Signing of Bid D. Submission of Bids 23. Sealing and Marking of Bids 24. Deadline for Submission of Bids 25. Late Bids 26. Modification and Withdrawal of Bids E. Opening and Evaluation of Technical Proposals 27. Opening of Technical bids 28. Process to be Confidential 29. Clarification of Technical Proposals 30. Preliminary Examination of Technical Proposals 31. Evaluation and Comparison of Technical Proposals 32. Invitation to Attend Opening of Price Proposals F. Opening of Price Proposals 33. Bid Opening of Price Proposals 34. Proposals to be Confidential 35. Clarification of Price Proposals 36. Preliminary examination of bids and determination of responsiveness 37. Correction of Errors 38. Conversion to Single Currencies 39. Evaluation and Comparison of Price Proposals 40. Margin of Preference G. Award of Contract 41. Award 42. Employer s Right to Accept any Bid and to Reject any of all Bids 43. Notification of Award 44. Signing of Contract 45. Performance Security 46. Advance Payment H. Sourcing of Funds 47. Source of Funds Page 6 of 300

7 Section 1. Instructions to Bidders Section 1 Instructions to bidders A. General 1. Scope of Bid 1.1 The Employer indicated in the Bid Data Sheet (BDS) wishes to receive bids for funding, design and build and completion of works as specified in the Bid Data Sheet, and Employer s Requirements. Brief particulars of the Project are as indicated in the Bid Data Sheet. 2. Review of Procurement Decisions 1.2 The successful bidder will be expected to complete the Works within the time specified in the Bid Data Sheet. 2.1 A Bidder who claims to have suffered or risk suffering, loss or damage or injury as a result of breach of a duty imposed on an Employer or an Approving Authority by the Public Procurement and Disposal Act, 2015 and the Public Procurement and Disposal Regulations 2015, the procurement proceedings or processes, may seek administrative review as prescribed by the Act. The following matters, however, shall not be subject to the administrative review: (a) The choice of procurement method; (b) a decision by the Employer to reject all Tenders, proposals or quotations; (c) Where a contract is signed in accordance to Section 68 of the Public Procurement and Disposal Act,2005; (d) Where an appeal is frivolous. 2.2 The Bidder shall submit an application for review in the number of copies and pay fees as prescribed by the Public Procurement and Disposal Regulations 2015 within fourteen (14) days of the time the Bidder became or should have become aware of the circumstances giving rise to the complaint or dispute. 2.3 Any application for administrative review shall be submitted in writing to the Secretary, Public Procurement Administrative Review Board on Form RB1 at the address shown in the Bid Data Sheet. The secretary to the review board shall immediately after filing of the request, serve a copy thereof on the Employer or Director-General as the case may be. 2.4 The application for administrative review shall be in accordance with the requirements of the Public Procurement and Disposals Regulations, including: a) Reasons for the complaint, including any alleged breach of the Act or Regulations; b) An explanation of how the provisions of the Act and or Regulation has been breached or omitted, including the dates and name of the responsible public officer, where known; c) Statements or other evidence supporting the complaint where available as the applicant considers necessary in support of its request; d) Remedies sought; e) Any other information relevant to the complaint. 2.5 The Administrative Review Board shall within thirty days after receipt of an application for administrative review deliver a written decision which shall indicate: a) Annulling anything the Employer has done in the procurement proceedings, including annulling the procurement proceedings in their entirety; b) Giving directions to the Employer with respect to anything to be done or redone in the procurement proceedings; c) Substituting the decision of the Review Board for any decision Page 7 of 300

8 Section 1 Instructions to bidders 3. Corrupt or Fraudulent Practices of the Employer in the procurement proceedings; d) Order the payment of costs as between parties to the review. 2.6 The decision made by the Review Board shall, be final and binding on the parties unless judicial review thereof commences within fourteen (14) days from the date of the Review Board s decision. 2.7 Any party to the review aggrieved by the decision of the Review Board may appeal to the High Court and the decision of the High Court shall be final 3.1 It is the policy of the Government of the Republic of Kenya to require Public Bodies, as well as bidders, suppliers, and contractors and their agents (whether declared or not), personnel, subcontractors, sub-consultants, service providers and suppliers, observe the highest standard of ethics during the procurement and execution of contracts. In pursuance of this policy, the Government of the Republic of Kenya: (a) defines, for the purposes of this provision, the terms set forth below as follows: (i) (ii) (iii) (iv) (v) corrupt practice is the offering, giving, receiving or soliciting, directly or indirectly, of anything of value to influence improperly the actions of another party; fraudulent practice is any act or omission, including a misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a party to obtain a financial or other benefit or to avoid an obligation; collusive practice is an arrangement between two or more parties designed to achieve an improper purpose, including to influence improperly the actions of another party; coercive practice is impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of the party to influence improperly the actions of a party; obstructive practice is (aa) (bb) deliberately destroying, falsifying, altering or concealing of evidence material to the investigation or making false statements to investigators in order to materially impede the Employer s investigation into allegations of a corrupt, fraudulent, coercive or collusive practice; and/or threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation, or acts intended to materially impede the exercise of the Employer s inspection and audit rights provided for under sub-clause 4.2 below. (b) will reject a proposal for award if it determines that the Bidder recommended for award has, directly or through an agent, engaged in corrupt, fraudulent, collusive, coercive or obstructive practices in competing for the Page 8 of 300

9 Section 1 Instructions to bidders contract in question; and will sanction a firm or an individual, at any time, in accordance with prevailing legislations, including by publicly declaring such firm or individual ineligible, for a stated period of time: (i) to be awarded a public contract; and (ii) to be a nominated sub-contractor, consultant, manufacturer or supplier, or service provider of an otherwise eligible firm being awarded a public contract. 4. Eligible Bidders 3.2 In pursuance of this policy, Bidders will furnish the Employer with all the documents required for Bidding. 3.3 Bidders, suppliers and public officials shall also be aware of the provisions of the Public Procurement Act which can be consulted on the website of the Public Procurement Authority The Employer commits itself to take all measures necessary to prevent fraud and corruption and ensures that none of its staff, personally or through his/her close relatives or through a third party, will in connection with the bid for, or the execution of a contract, demand, take a promise for or accept, for him/herself or third person, any material or immaterial benefit which he/she is not legally entitled to. If the Employer obtains information on the conduct of any of its employees which is a criminal offence under the relevant Anti-Corruption Laws of Kenya or if there be a substantive suspicion in this regard, he will inform the relevant authority (ies) and in addition can initiate disciplinary actions. Furthermore, such bid shall be rejected. 4.1 The Employer permits individuals and firms, from all countries to participate in this Bid. A Bidder may be a natural person, private or public company, government-owned institution, subject to sub-clause The Invitation for Bids is open to all eligible Bidders as outlined in sub- Clause 4.1 above. 4.3 National Bidders shall be required to declare their tax status, for which documentation of tax registration and tax compliance are relevant. 4.4 A Bidder shall not have a conflict of interest. All Bidders found to have a conflict of interest shall be disqualified. A Bidder may be considered to have a conflict of interest with one or more parties in this Bidding process, if they: Are associated or have been associated in the past directly or indirectly with employees or agents of the Employer; b) Are associated or have been associated in the past, directly or indirectly with a firm or any of its affiliates which have been engaged by the Employer to provide consulting services for the preparation of the design, specifications and other documents to be used for the procurement of the works under this Invitation for Bids; c) Have controlling shareholders in common; or d) Receive or have received any direct or indirect subsidy from any of them; or e) Have the same legal representative for purposes of this Bid; or f) Have a relationship with each other, directly or through common third parties, that puts them in a position to have access to information about or influence on the Bid of another Bidder, or influence the decisions of the Employer regarding this Bidding Page 9 of 300

10 Section 1 Instructions to bidders process; or 5. Eligible Materials, Equipment and Services g) Submit more than one Bid in this Bidding process, However, this does not limit the participation of subcontractors in more than one Bid or as Bidder and subcontractor simultaneously. 4.5 A Bidder will be considered to have a conflict of interest if they participated as a consultant in the preparation of the design or technical specification of the project and related services that are the subject of the Bid. 4.6 Bidders shall update critical relevant information such as litigation information, accessing credit, critical equipment, labour force, among others. 4.7 Government owned enterprises in Kenya may participate only if they are legally and financially autonomous, if they operate under commercial law, are registered by the relevant registration board or authorities and if they are not a dependent agency of the Government. 4.8 Bidders shall provide such evidence of their continued eligibility satisfactory to the Employer, as the Employer shall reasonably request. 5.1 The materials, equipment, and services to be supplied under the Contract shall have their origin in eligible source countries as defined in Sub-Clause 4.1 above and all expenditures made under the Contract will be limited to such materials, equipment, and services. At the Employer's request, bidders may be required to provide evidence of the origin of materials, equipment, and services. 5.2 For purposes of Sub-Clause 5.1 above, "services" means the works and all project-related services including design services. 6. Qualification of the Bidder 5.3 For purposes of Sub-Clause 5.1 above, origin" means the place where the materials and equipment are mined, grown, produced or manufactured, and from which the services are provided. Materials and equipment are produced when, through manufacturing, processing or substantial or major assembling of components, a commercially recognized product results that is substantially different in basic characteristics or in purpose or utility from its components. 6.1 To be qualified for award of Contract, bidders shall: (a) submit written confirmation of authorization to sign on behalf of the Bidder which could be in the form of power of attorney or in any other form demonstrating that the representative has been duly authorized to sign or; and (b) have adequate financial capacity and technical capability to undertake the Contract. 6.2 Bidders shall also submit proposals of work methods and schedule in sufficient detail to demonstrate the adequacy of the bidder s proposals to meet the Employer's Requirements and the completion time referred to in Sub-Clause 1.2 above. 7. One Bid per Bidder 8. Cost of Bidding 7.1 Each bidder shall submit only one bid. A bidder who submits or participates in more than one bid will cause all those bids to be rejected. 8.1 The Bidder shall bear all costs associated with the preparation and submission of its Bid, and the Employer shall in no case be responsible or liable for those costs, regardless of the conduct or outcome of the bidding process. 9. Site Visit 9.1 The bidder is advised to visit and examine the Site of Works and its surroundings and obtain for itself on its own responsibility all information that may be necessary for preparing the bid and entering into a contract for the design-build and completion of the Page 10 of 300

11 Section 1 Instructions to bidders Works. The costs of visiting the Site shall be at the bidder's own expense. 9.2 The Bidder and any of its personnel or agents will be granted permission by the Employer to enter upon its premises and lands for the purpose of such visit, but only upon the express condition that the Bidder, its personnel, and agents will release and indemnify the Employer and its personnel and agents from and against all liability in respect thereof, and will be responsible for death or personal injury, loss of or damage to property, and any other loss, damage, costs, and expenses incurred as a result of the inspection. 9.3 The Employer may conduct a Site visit concurrently with the Pre-Bid Meeting referred to in Clause The Bidder s designated representative is invited to attend a site visit which, if convened, will take place at the venue and time stipulated in the Bid Data Sheet 9.5 Non attendance during the site visit WILL NOT be a cause for disqualification of a Bidder unless specified to the contrary in the Bid Data Sheet. 10. Content of Bidding Documents B. Bidding Documents 10.1 The bidding documents are those stated below, and should be read in conjunction with any Addenda issued in accordance with Clause 12: Invitation for Bids Section 1 Instructions to Bidders 2 Part I - General Conditions 3 Part II - Conditions of Particular Application 4 Employer's Requirements 5 Technical Specifications 6 Form of Bid and Appendix to Bid 7 Sample Forms 8 Schedules 9 Drawings 11. Clarification of Bidding Documents 12. Amendment of Bidding Documents 10.2 The Bidder is expected to examine carefully the contents of the bidding documents. Failure to comply with the requirements of bid submission will be at the Bidder's own risk. Pursuant to Clause 30, bids which are not substantially responsive to the requirements of the bidding documents will be rejected A prospective bidder requiring any clarification of the bidding documents may notify the Employer in writing or by fax (hereinafter the term fax" is deemed to include electronic transmission) at the Employer s address indicated in the Bid Data Sheet. The Employer will within the period stated in the Bid Data Sheet respond in writing to any request for clarification provided that such request is received no later than the period indicated in the Bid Data Sheet prior to the deadline for the submission of Bids. Copies of the Employer s response, including a description of the inquiry, will be forwarded to all purchasers of the bidding documents, but without identifying its source At any time prior to the deadline for submission of bids, the Employer may, for any reason, whether at its own initiative or in response to a clarification requested by a prospective bidder, modify the bidding documents by issuing addenda Any addendum thus issued shall be part of the bidding documents pursuant to Sub-Clause 10.1, and shall be communicated in writing or by fax to all purchasers of the bidding documents. Prospective bidders shall acknowledge receipt of each addendum by fax to the Employer To afford prospective bidders reasonable time in which to take an Page 11 of 300

12 Section 1 Instructions to bidders addendum into account in preparing their bids, the Employer may extend the deadline for submission of bids, in accordance with Clause 24. C. Preparation of Bids 13. Language 13.1 The Bid as well as all correspondence and documents relating to the bid exchanged by the Bidder and the Employer, shall be written in the Bid Language stipulated in the Bid Data Sheet. Supporting documents and printed literature that are part of the Bid may be in another language provided they are accompanied by an accurate translation of the relevant passages in the above stated language, in which case, for purposes of interpretation of the Bid, such translation shall govern. 14. Documents Comprising the Bid 14.1 The Bid submitted by the bidder shall comprise two envelope submitted simultaneously, one containing only the technical proposal and the other the price proposal The Technical Proposal shall contain the following: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) Bid Form for Technical Proposal and Appendix to Technical proposal; Bid Security; Written Authorization for signing the bids; Information on Qualification Confirmation of Eligibility; Schedule of Major Items of Equipment; Schedule of Major Items of Constructional Plant; Schedule of Key Personnel; Schedule of Subcontractors; Schedule of Compliance with the Bidding Document; and any other materials required to be completed and submitted by bidders in accordance with these Instructions to Bidders The Price proposal shall contain the following: (i) Bid Form for Price Proposal and Appendix to Price Proposal; (ii) Letter of intent from a financier expressing its agreement in financing the cost of the proposed project clearly indicating terms of payment including interest rate, payment period with credit terms within the limits acceptable by the National Treasury of Kenya (iii) Schedules of Prices (iv) Schedule of Coefficients and indices for price Adjustment (v) Any other materials required to be completed and submitted by bidders in accordance with these Instructions to Bidders 15. Bid Form and Price Schedules 15.1 The Bidder shall complete the Bid Form and the appropriate Price Schedules furnished in the bidding documents in the manner and detail indicated therein, following the requirements of Clauses 16 and 17; 16. Bid Prices 16.1 Unless specified otherwise in Employer's Requirements, Bidders shall quote for the entire facilities on a single responsibility" basis such that the total bid price covers all the Contractor's obligations mentioned in or to be reasonably inferred from the bidding Page 12 of 300

13 Section 1 Instructions to bidders documents in respect of the design, manufacture, including procurement and subcontracting (if any), delivery, construction, installation and completion of the facilities or works. This includes all requirements under the Contractor's responsibilities for testing, precommissioning and commissioning of the facilities and, where so required by the bidding documents, the acquisition of all permits, approvals and licenses, etc., operation maintenance and training services and such other items and services as may be specified in the bidding documents, all in accordance with the requirements of the Conditions of Contract Bidders shall give a breakdown of the prices in the manner and detail called for in the Schedules of Prices In the Schedules, Bidders shall give the required details and a breakdown of their prices, including all(and if applicable) taxes, duties, levies, and charges payable in the Employer's country as of twenty eight (28) days prior to the deadline for submission of bids, as follows: (a) (b) (c) (d) (e) Design including all necessary drawings and documentation for the Work. Plant and equipment to be supplied from outside the Employer's country shall be quoted on a CIF port-of entry. In addition, the FOB price and import duties and taxes shall also be indicated separately. Plant and equipment manufactured or fabricated within the Employer's country shall be quoted on an EXW (ex-factory, ex-works, ex-warehouse or off-the-shelf, as applicable) basis and shall be inclusive of all costs as well as duties and taxes paid or payable on components and raw materials incorporated or to be incorporated in the facilities. In addition VAT shall be indicated separately. Civil Works, Installation and Other Services shall be quoted separately and shall include rates or prices for all labour, contractor's equipment, temporary works, materials, consumables and all matters and things of whatsoever nature, including local transportation, operations and maintenance services, the provision of operations and maintenance manuals, training, etc. where identified In the bidding documents, as necessary for the proper execution of the Civil Works, Installation and Other Services. Recommended Spare Parts shall be quoted separately as specified in either subparagraph (b) or (c) above in accordance with the origin of the spare parts The terms EXW, CIF, and FOB shall be governed by the rules prescribed in the current edition of Incoterms, published by the International Chamber of Commerce, Paris Prices quoted by the bidder shall be subject to adjustment during performance of the contract to reflect changes in the cost of labor, fuel, material, equipment and transport components in accordance with the procedures specified in Sub Clause 13.8 of the Conditions of Particular Application. The price adjustment provision will not be taken into consideration in bid evaluation. Bidders are required to indicate the source of labor, equipment and material indices in the Schedule of Coefficients and Indices for Price Adjustment. 17. Bid 17.1 The unit rates and prices shall be quoted by the Bidder in the currency Page 13 of 300

14 Section 1 Instructions to bidders Currencies as specified in the Bid Data Sheet Bidders shall indicate their expected foreign currency requirements in the Appendix to Price Proposal, if any. The rates of exchange to be used by the Bidders in arriving at the local currency equivalent shall be the selling rates for similar transactions established by the authority specified in the Bid Data Sheet prevailing on the date 28 days prior to the latest deadline for submission of Bids. These exchange rates shall apply for all payments so that no exchange risk will be borne by the Bidder. In any case, payments will be computed using the rates quoted in the Bid Bidders may be required by the Employer to clarify their foreign currency requirements, shown in the Appendix to Bid are reasonable and responsive to Sub-Clause 16.1 in which case a detailed breakdown of its foreign currency requirements shall be provided by the bidder During the progress of the Works, the foreign currency portions of the outstanding balance of the Contract Price may be adjusted by agreement between the Employer and the Contractor to reflect any changes in foreign currency requirements for the contract, in accordance with Clause 13.8 of the Conditions of Particular Application. Any such adjustment shall be effected by comparing the amounts quoted in the bid with the amounts already used in the Works and the Contractor's future needs for imported items. 18. Bid Validity 18.1 Bids shall remain valid for the period specified in the Bid Data Sheet after the Bid submission deadline prescribed by the Employer, pursuant to ITB Sub-Clause 24.1.A Bid valid for a shorter period shall be rejected by the Employer as non responsive In exceptional circumstances, prior to expiry of the original bid validity period, the Employer may request that the bidders extend the period of validity for a specified additional period. The request and the responses thereto shall be made in writing or by fax. A bidder may refuse the request without forfeiting its bid security. A bidder agreeing to the request will not be required or permitted to modify its bid, but will be required to extend the validity of its bid security for the period of the extension, and in compliance with Clause 19 in all respects. 19. Bid Security 19.1 Where required in the Bid Data Sheet, the Bidder shall furnish as part of its Bid, a Bid Security in original form and in the amount and currency specified in the Bid Data Sheet The Bid Security shall be denominated in the currency of the Bid and shall be in one of the following forms: (a) Cash; (b) A Bank Guarantee from a local commercial bank or from an overseas reputable bank or an overseas/ local reputable financial institution. The format of the bank guarantee shall be in accordance with the sample form of bid security included in Section 7; other standard formats may be permitted. (c) An Insurance Bond from a local reputable insurance firm or an overseas reputable insurance firm; (d) An irrevocable letter of credit issued by a reputable bank. The bid security shall remain valid for the period specified in the Bid Data Sheet after the Bid submission deadline, and beyond any period of extension subsequently requested under Sub-Clause Any bid not accompanied by an acceptable bid security shall be rejected by the Employer as nonresponsive. Page 14 of 300

15 Section 1 Instructions to bidders 19.4 The Employer shall immediately release any Bid Security if: (a) The procuring proceedings are terminated; (b) The Employer determines that none of the submitted Bids is responsive; (c) A contract for the procurement is entered into The bid security of the successful bidder will be returned when the bidder has signed the Contract Agreement and furnished the required performance security The bid security may be forfeited (a) if the bidder withdraws its bid, except as provided in Sub-Clause 26.1 ; (b) in the case of a successful bidder, if it fails within the specified time limit to: (i) Sign the Contract Agreement, or (ii) Furnish the required performance security. 20. Alternative Proposals by Bidders 20.1 Bidders shall submit offers that comply with the requirements of the Bidding documents, including the basic Employer s requirements as indicated in the Bidding documents. Alternatives will not be considered, unless specifically allowed for in the Bid Data Sheet. If so allowed, sub- Clause 20.2 and 20.3 shall govern 20.2 When alternative times for completion are explicitly invited, a statement to that effect will be included in the Bid Data Sheet as will the method of evaluating different times for completion. 21. Pre-Bid Meeting 20.3 If so allowed in the Bid Data Sheet, Bidders wishing to offer technical alternatives to the requirements of the Bidding documents must also submit a Bid that complies with the requirements of the Bidding documents, including the basic Employer s Requirements as indicated in the Bidding Documents. In addition to submitting the basic Bid, the Bidder shall provide all information necessary for a complete evaluation of the alternative by the Employer, including technical specifications, breakdown of prices, and other relevant details. Only the technical alternatives, if any, of the lowest evaluated Bidder conforming to the basic technical requirements shall be considered by the Employer The bidder or its official representative is invited to attend a pre-bid meeting which, if convened, will take place at the venue and time stipulated in the Bid Data Sheet The purpose of the meeting will be to clarify issues and to answer questions on any matter that may be raised at that stage The bidder is requested to submit any questions in writing or by fax, to reach the Employer not later than the period indicated in the Bid Data Sheet prior to the meeting Minutes of the pre-bid meeting, including the text of the questions raised, without identifying the source, and the responses given, together with any response prepared after the meeting, will be transmitted within the time stated in the Bid Data Sheet to all Bidders who have acquired the Bidding Document. Any modification of the Bidding Document that may become necessary as a result of the pre-bid meeting shall be made by the Employer exclusively through the issue of an addendum pursuant to ITB 12.2 and not through the minutes of the pre-bid meeting Nonattendance at the pre-bid meeting WILL NOT be a cause for Page 15 of 300

16 Section 1 Instructions to bidders disqualification of a bidder unless specified to the contrary in the Bid Data Sheet. 22. Format and Signing of Bid 22.1 The bidder shall prepare one original and copies of the technical proposal and financial proposal in the number specified in the Bid Data Sheet, comprising the bid as described in Clause 14 of these Instructions to Bidders, and clearly marking each one as: "ORIGINAL- TECHNICAL PROPOSAL", ORIGINAL PRICE PROPOSAL, and COPY NO. 1 TECHNICAL PROPASAL, COPY NO 1 FINANCIAL PROPOSAL etc. as appropriate. In the event of discrepancy between them, the original shall prevail The original and all copies of the bid shall be typed or written in indelible ink (in the case of copies, photocopies are also acceptable) and shall be signed by a person or persons duly authorized to sign on behalf of the bidder, pursuant to Sub-Clauses 6.1 (a). All pages of the bid where entries or amendments have been made shall be initialed by the person or persons signing the bid The bid shall contain no alterations, omissions or additions, except those to comply with instructions issued by the Employer, or as necessary to correct errors made by the bidder, in which case such corrections shall be initialed by the person or persons signing the bid The bidder shall furnish information as described in the Form of Bid on commission or gratuities, if any, paid or to be paid relating to this Bid, and to contract execution if the bidder is awarded the contract. D. Submission of Bids 23. Sealing and Marking of Bids 23.1 The bidder shall seal the original copy of the technical proposal, the original copy of the price proposal and each copy of the technical proposal and each copy of the price proposal in separate envelopes clearly marking each one as: ORIGINAL TECHNICAL PROPOSAL, ÖRIGINAL PRICE PROPOSAL, and COPY NO. 1 TECHNICAL PROPOSAL, COPY NO 1- PRICE PROPOSAL etc. as appropriate The Bidder shall seal the original bids and each copy of the bids in an inner and an outer envelope, duly marking the envelopes as ORIGINAL and COPY The inner and outer envelopes shall be addressed to the Employer at the address specified on the Bid Data Sheet and also bear the identification specified on the Bid Data Sheet 24. Deadline of Submission of Bid 23.4 In addition to the identification required in Sub-Clause 23.3, the inner envelope shall indicate the name and address of the bidder to enable the bid to be returned unopened in case it is declared "late" pursuant to Clause If the outer envelope is not sealed and marked as above, the Employer will assume no responsibility for the misplacement or premature opening of the bid Bids shall be received by the Employer at the address specified under sub-clause 23.3 no later than the date and time specified in the Bid Data Sheet The Employer may, at its discretion, extend the deadline for submission of bids by issuing an addendum in accordance with Clause 12, in which case all rights and obligations of the Employer and the bidders previously subject to the original deadline will thereafter be subject to the extended new deadline. 25. Late Bids 25.1 Any bid received by the Employer after the deadline for submission of bids prescribed in Clause 24 will be rejected and returned unopened to the bidder. Page 16 of 300

17 Section 1 Instructions to bidders 26. Modification and Withdrawal of Bid 26.1 The bidder may modify or withdraw its bid after bid submission, provided that written notice of the modification or withdrawal is received by the Employer prior to the deadline for submission of bids The bidder's modification or withdrawal notice shall be prepared, sealed, marked and delivered in accordance with the provisions of Clause 23, with the outer and inner envelopes additionally marked "MODIFICATION" or "WITHDRAWAL", as appropriate. A withdrawal notice may also be sent by fax but must be followed by a signed confirmation copy No bid may be modified by the bidder after the deadline for submission of bids, except in accordance with Sub-Clauses Withdrawal of a bid during the interval between the deadline for submission of bids and the expiration of the period of bid validity specified In Sub-Clause 18.1 may result in the forfeiture of the bid security pursuant to Sub-Clause E. Opening and Evaluation of Technical Proposal 27. Bid Opening 27.1 The Employer will open the technical proposal, including modifications made pursuant to Clause 26, in the presence of bidders representatives who choose to attend, at the place on the date and at time specified in the Bid Data Sheet. The bidders' representatives who are present shall sign a register evidencing their attendance. 28. Process to Be Confidential 29. Clarification of Technical Proposals and contacting the Employer 27.2 The price proposals will remain unopened and will be held in the custody of the Employer until the time of bid opening of the price proposals after evaluation of the technical proposals. The time and date and location of the bid opening will be communicated in writing or by fax by the Employer Envelopes marked 'WITHDRAWAL" shall be opened and read out first. Bids for which an acceptable notice of withdrawal has been submitted pursuant to Clause 26 shall not be opened The bidders' names, bid modifications and withdrawals, the presence or absence of bid security, and such other details as the Employer may consider appropriate, will be announced and recorded by the Employer at the opening The Employer shall prepare minutes of the bid opening, including the information disclosed to those present in accordance with Sub- Clause Information relating to the examination, clarification, evaluation and comparison of bids and recommendations for the award of a contract shall not be disclosed to bidders or any other persons not officially concerned with such process. Any effort by a bidder to influence the Employer's processing of bids or award decisions may result In the rejection of the bidder's bid To assist in the examination, evaluation and comparison of bids, the Employer may, at its discretion, ask any bidder for clarification of its bid. The request for clarification and the response shall be in writing or by fax, but no change in the price or substance of the bid shall be sought, offered or permitted Subject to Sub-clause 29.1, no bidder shall contact the Employer on any matter relating to its bid from the time of the bid opening to the time the contract is awarded. If the bidder wishes to bring additional information to the notice of the Employer, it should do so in writing If a Bidder does not provide clarifications of its bid by the date and time set in the Employer s request for clarification, its bid may be rejected Any effort by the bidder to influence the Employer in the employer's Page 17 of 300

18 Section 1 Instructions to bidders 30. Preliminary Examination of Technical Proposals and Determination of Responsivene ss evaluation of technical proposals, bid comparison or the Employer's decisions on acceptance or rejection of bids may result in the rejection of the bidder's bid Prior to the detailed evaluation of the technical proposals, the Employer will determine whether each bid meets the minimum requirements indicated on the Bid Data Sheet A substantially responsive bid is one which conforms to all the terms, conditions and requirements of the bidding documents, without material deviation or reservation. A material deviation or reservation is one: 31. Evaluation and Comparison of Technical Proposals 32. Invitation to Attend Opening of Price Proposals 33. Opening of Price Proposals (i) which affects in any substantial way the scope, quality or performance of the Works; (ii) which is inconsistent with the bidding documents and limits in any substantial way, the Employer s rights or the bidder's obligations under the Contract; or (iii) whose rectification would affect unfairly the competitive position of other bidders presenting substantially responsive bids If a bid is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the nonconforming deviation or reservation The Employer s evaluation committee shall evaluate the Technical Proposals on the basis of their responsiveness to the Employer s Requirements and the entire bidding documents, applying the evaluation criteria, sub-criteria, and point system specified in the Bid Data Sheet. Each responsive Proposal will be given a technical score. A Proposal shall be rejected at this stage if it does not respond to important aspects of the Bid or if it fails to achieve the minimum technical score indicated in the Bid Data Sheet 32.1 At the end of the evaluation of the technical proposals the Employer will invite bidders who have submitted substantially responsive technical proposals and who have been determined as being qualified for further evaluation, to attend the bid opening of the price proposals. Bidders shall be given reasonable notice of the price proposal bid opening The Employer will notify unsuccessful Bidders on the grounds of being substantially non-responsive to the requirements of the bidding documents and return the unopened price proposal after the selection process is complete. F. Opening and Evaluation of Price Proposals 33.1 After the technical evaluation is completed, the Employer shall notify those Bidders whose Proposals were considered nonresponsive to the Bid and the Employer s Requirements or did not meet the minimum qualifying technical score that their Financial Proposals will be returned unopened after completing the selection process and Contract signing. The Client shall simultaneously notify in writing those Bidders that have achieved the minimum overall technical score and inform them of the date, time and location for the opening of the Financial Proposals. The opening date should allow the Bidders sufficient time to make arrangements for attending the opening. The Bidder s attendance at the opening of the Financial Page 18 of 300

19 Section 1 Instructions to bidders 34 Process to be Confidential 35 Clarification of Price Proposals and Contacting the Employer 36. Preliminary Examination of Price Proposals and Determination of Responsivene ss 37. Correction of Errors 38. Conversion to Single Currency Proposals (in person, or online if such option is indicated in the Bid Data Sheet) is optional and is at the Bidder s choice. The bidder's representatives who are present shall sign a register evidencing their attendance The financial proposals shall be opened by the Employer in the presence of the representatives of those Bidder s whose proposals have passed the minimum technical score. At the opening, the names of the Bidder s, and the overall technical scores, shall be read aloud. The Financial Proposals will then be inspected to confirm that they have remained sealed and unopened. These Financial Proposals shall be then opened, and the total prices read aloud and recorded by the Employer The Employer shall prepare minutes of the bid opening, including the information disclosed to those present in accordance with Sub- Clause Information relating to the examination, clarification, evaluation and comparison of bids and recommendation for the award of a contract shall not be disclosed to bidders or any other persons not officially concerned with such process until the award to the successful bidder has been announced. Any effort by a bidder to influence the Employer's processing of bids or award decisions may result in the rejection of the bidder's bid To assist in the examination, evaluation and comparison of price proposals, the Employer may, at its discretion, ask any bidder for clarification of its bid. The request for clarification and the response shall be in writing or by electronic mail, but no change in the price or substance of the bid shall be sought, offered or permitted Subject to Sub-Clause 35.1, no bidder shall contact the Employer on any matter relating to its bid from the time of opening of price proposals to the time the contract is awarded. If the bidder wishes to bring additional information to the notice of the employer, it should do so in writing Any effort by the bidder to influence the Employer in the Employer's evaluation of price proposals, bid comparison or contract award decisions may result in the rejection of the bidder's bid Prior to the detailed evaluation of the price proposals, the Employer will determine whether each bid meets the minimum requirements indicated on the Bid Data Sheet A substantially responsive bid is one which conforms to all the terms, conditions and requirements of the bidding documents, without material deviation or reservation, and includes the amendments and changes, if any, requested by the Employer during the evaluation of the bidder's technical proposal If a price proposal is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the nonconforming deviation or reservation The tender sum as submitted and read out during the tender opening shall be absolute and final and shall not be the subject of correction, adjustment or amendment in any way by any person or entity For the evaluation purposes, prices shall be converted to a single currency using the selling rates of exchange, source and date indicated in the Bid Data Sheet. Page 19 of 300

20 Section 1 Instructions to bidders 39. Evaluation and Comparison of Price Proposals 40. Margin of Preference 39.1 The Employer s evaluation committee shall evaluate and compare only the Price Proposals determined to be substantially responsive in accordance with Clause A margin of preference shall apply as specified in the the Bid Data Sheet. Page 20 of 300 G. Award of Contract 41. Award 41.1 The Employer will determine the winning bid using any of the Combined Quality and Cost Evaluation criteria specified in the Bid Data Sheet Each criterion of the Combined Quality and Cost Evaluation criteria to be used to determine the winning bid are as elaborated below: a) Quality-and Cost-Based Selection(QCBS) In the case of QCBS, the total score is calculated by weighting the technical and financial scores and adding them as per the formula and instructions in the Bid Data Sheet. The Bidder achieving the highest combined technical and financial score will be invited to negotiate the Contract. b) Fixed-Budget Selection(FBS) In the case of FBS, those Bid prices that exceed the budget indicated in the Bid Data Sheet shall be rejected. The Employer will select the Bidder that submitted the highest-ranked Technical proposal that does not exceed the budget indicated in the Bid document, and invite such Bidder to negotiate the Contract. c) Least-Cost Selection(LCS) In the case of Least-Cost Selection (LCS), the Employer will select the Bidder with the lowest evaluated Bid price among those Bidders that achieved the minimum technical score, and invite such Bidder to negotiate the Contract Subject to Clause 42, the Employer will award the Contract to the bidder whose bid has been determined to be substantially responsive to the bidding documents and declared the winning bid using one of the criteria in sub-clause Employer s Right to Accept any Bid and to Reject any or all Bids 43. Notification of Award 42.1 Notwithstanding Clause 41, the Employer reserves the right to accept or reject any bid, and to annul the bidding process and reject all bids, at any time prior to award of Contract, without thereby incurring any liability to the affected bidder or bidders The Bidder whose Bid has been accepted will be notified of the award by the Employer prior to expiration of the Bid validity period by or facsimile confirmed by registered letter. This letter (hereinafter and in the Conditions of Contract called the "Letter of Acceptance") will state the sum that the Employer will pay the Contractor in consideration of the provision and maintenance of the Work(s) as prescribed by the Contract (hereinafter and in the Contract called the Contract Price ) The notification of award will constitute the formation of the Contract, subject to the Bidder furnishing the performance Security in accordance with clause 45 and signing the Contract in accordance with sub-clause At the same time as the person submitting the successful Bid is notified, the Employer will notify the other bidders that their bids have been unsuccessful If, after notification of award, a Bidder wishes to ascertain the grounds on which its Bid or application for pre-qualification was unsuccessful, it should address its request to the Employer. The Employer shall, within

21 Section 1 Instructions to bidders 44. Signing of Contract Agreement 45. Performance Security fourteen days after a request, provide written reasons as to why the bid, proposal or application to be pre-qualified was unsuccessful. However, failure to take this opportunity to clarify the grounds for rejection does not affect the Bidder s right to seek immediate review by the Public Procurement Administrative Review Board under Clause Promptly, and in no case later than 14 days, after notification, Employer shall send the successful Bidder the Agreement and Contract Data Sheet all contained in the bidding documents, incorporating all agreements between the parties obtained as a result of Contract negotiation Within the period specified in the notification or Bid Data Sheet but not earlier than fourteen (14) days since notification of award of contract, the successful Bidder shall sign and date the contract and return it to the Employer Within thirty (30) days but after 14 days after receipt of the Letter of Acceptance, the successful Bidder shall deliver to the Employer a Performance Security in the amount stipulated in the Bid Data Sheet, denominated in the type and proportions of currencies in the Letter of Acceptance and in accordance with the Conditions of Contract. The Performance Security shall be denominated in the currency of the Bid and shall be in one of the following forms: (a) Cash; (b) A Bank Guarantee from a local commercial bank or from an overseas reputable bank or an overseas/ local reputable financial institution. The format of the bank guarantee shall be in accordance with the sample form of performance security included in Section 7; other acceptable formats may be used. (c) An Insurance Bond from a local reputable insurance firm or an overseas reputable insurance firm; (d) An irrevocable letter of credit issued by a reputable bank. 46. Advance Payment 45.2 If the Performance Security is provided by the successful Bidder in the form of a Bank Guarantee or Insurance Bond, it shall be issued either: (a) At the Bidder s option, by a bank or insurance firm located in Kenya, or a foreign bank or insurance firm through a correspondent bank or insurance firm located in Kenya; (b) With the consent of the Employer, directly by a foreign bank acceptable to the Employer Failure of the successful bidder to comply with the requirements of Clauses 44 or 45 shall constitute sufficient grounds for the annulment of the award and forfeiture of the bid security, in which event the Employer may make the award to the next lowest evaluated Bidder or call for new Bids The Employer will provide an advance payment as stipulated in the Conditions of Contract, subject to a maximum amount, or as stated in the Bid Data Sheet. The Advance Payment Security shall be denominated in the currency of the Bid and shall be in one of the following forms: (a) A Bank Guarantee from a local commercial bank or from an overseas reputable bank or an overseas/ local reputable financial institution. The format of the bank guarantee shall be in accordance with the sample form of Advance Payment security included in Section 7; other acceptable formats may be used. Page 21 of 300

22 Section 1 Instructions to bidders (b) An Insurance Bond from a local reputable insurance firm or an overseas reputable insurance firm; (c) An irrevocable letter of credit issued by a reputable bank The Advance Payment shall be accompanied by an Advance Payment Security.For the purpose of receiving the Advance Payment, the Bidder shall make an estimate of, and include in its Bid, the expenses that will be incurred in order to commence work. These expenses will relate to the purchase of equipment, machinery, materials, and on the engagement of labour during the first month beginning with the date of the Employer s Notice to Commence as specified in the Contract. H. SOURCING OF FUNDS 47Source of Funds 47.1 The Borrower or Recipient (hereinafter called Borrower ) indicated in the Bid Data Sheet will be the Government of Kenya Represented by the National Treasury and will jointly with the bidder apply for the funding from the funding agency proposed by the bidder toward the cost of the project named in the Bid Data Sheet. The Borrower intends to apply a portion of the funds to eligible payments under the contract(s) for which this Bidding Document is issued Payments by the proposed Financing Institution (Bank) by the bidder will be made only at the request of the Borrower and upon approval by the Bank in accordance with the terms and conditions of the financing agreement between the Borrower and the Bank (hereinafter called the Loan Agreement), and will be subject in all respects to the terms and conditions of that Loan Agreement. No party other than the Borrower shall derive any rights from the Loan Agreement or have any claim to the funds. I. BID DATA SHEET(BDS) BDS Ref. No. BDS Clause Number General The Employer is Tanathi Water Services Board a state corporation under the Ministry of Water and Irrigation. The dam is proposed as a potential source to supply both Nairobi and Mavoko-kitengela area. The scope of works involves but not limited to the construction of: Ndarugu 1 Dam on Ndarugu River approx. 1Km upstream of the confluence with Komu River Raw Water Pumping Station at Ndarugu 1 Dam Outlet Works Raw Water Pumping Main of approximate length of 1Km from Ndarugu 1 Dam to a Proposed Water Treatment Site Water Treatment works, capacity 173,000m 3 /d Treated Water Pumping Station at the proposed Water treatment site, capacity 173,000m 3 /d Treated Water Pumping Main of approximate length of 30Km from the pumping station to Utawala Tank, capacity 173,000m 3 /d Page 22 of 300

23 Section 1 Instructions to bidders Treated water pumping main of approximate length of 13km from utawala tank to ring road tank, capacity 35,000m 3 /d Treated water pumping main of approximate length of 6km from utawala tank to Embakasi tank, capacity 38,000m 3 /d Treated water pumping main of approximate length of 14km from utawala tank to Syokimau tank, capacity 50,000m 3 /d Treated water pumping main of approximate length of 40Km from Utawala Tank to Koma Tank, capacity 25,000m 3 /d Utawala, Embakasi, Syokimau, Mavoko, & Koma Tanks Distribution mains from Syokimau reservoir to syokimau/mlolongo, Athi River and Kitengela areas. Distribution Mains from Koma Reservoir to Nguluni, Tala and Kangundo town The successful bidder will be expected to complete the Works in Three (3) yrs from the date of handing over site The address for submitting appeals to Administrative Review Board : The Secretary, Public Procurement Administrative Review Board, The Public Procurement Oversight Authority, 10 th Floor,National Bank House, P.O. Box , NAIROBI, Kenya. Tel: +254 (0) info@ppoa.go.ke Website: A site visit will take place at: VENUE: Mavoko Water and Sewerage Company DATE: 9 th November, 2017 TIME: 09.00Hrs Non-attendance during the site visit WILL NOT lead to disqualification. 6. Bidding Documents Address for clarification of Bid Document is: The Chief Executive Officer, Tanathi Water Services Board K.I.D.P. Building, Kalawa Road P.O. Box Private Bag Kitui Tel: tanathiwsb@gmail.com / Mwamati2009@yahoo.com Period to Respond to request for clarification by the Employer is 7 days Prior to deadline for submission of Bids. Page 23 of 300

24 Section 1 Instructions to bidders Preparation of Bids The Bid as well as all correspondence and documents relating to the bid exchanged by the Bidder and the Employer, shall be written in ENGLISH The unit rates and prices shall be quoted in KENYA SHILLING The authority for establishing the rates of exchange shall be CENTRAL BANK OF KENYA The Bid validity period shall be 180 days The amount of Bid Security shall be at least 1% of the contract price The bid security shall remain valid for 180 days after the Bid submission deadline, and beyond any period of extension subsequently requested under Sub-Clause Alternative proposals will not be considered Alternative completion time will not be allowed A pre-bid meeting will take place at: VENUE: Mavoko Water and Sewerage Company DATE: 9 th November, 2017 TIME: 09.00Hrs The bidder is requested to submit any questions in writing or by fax, to reach the Employer not later than 7 days prior to the meeting Minutes of the pre-bid meeting, including the text of the questions raised, without identifying the source, and the responses given, together with any response prepared after the meeting, will be transmitted within 7 days to all Bidders Nonattendance at the pre-bid meeting WILL NOT be a cause for disqualification of a bidder The number of copies to be completed and returned with the Tender is 3 (THREE) Submission of Bids The bidder shall seal the original copy of the technical proposal, the original copy of the price proposal and each copy of the technical proposal and each copy of the price proposal in separate envelopes clearly marking each one as: ORIGINAL TECHNICAL PROPOSAL, ÖRIGINAL PRICE PROPOSAL, and COPY NO. 1 TECHNICAL PROPOSAL, COPY NO 1- PRICE PROPOSAL etc. as appropriate The Bidder shall seal the original bids and each copy of the bids in an inner and an outer envelope, duly marking the envelopes as ORIGINAL and COPY The inner and outer envelopes shall be addressed to: The Chief Executive Officer, Tanathi Water Services Board K.I.D.P. Building, Kalawa Road Page 24 of 300

25 Section 1 Instructions to bidders P.O. Box Private Bag Kitui Tel: tanathiwsb@gmail.com The inner and outer envelopes shall bear the following identification: The deadline for bid submission is: DAY:Tuesday Bid for Ndarugu 1 Dam Water Supply Project Bid Reference Number: TAWSB/014/ DO NOT OPEN BEFORE: 28 TH November, 2017; Hrs DATE:28 th November, 2017 TIME:12.00 Hrs Opening and Evaluation of Technical Proposal The bid opening shall take place at: VENUE: Tanathi Water Services Board Offices, KIDP Building, Kalawa Road, Kitui Kenya. DAY: Tuesday DATE:28 th November, 2017 TIME:12.00 Hrs The criteria for Preliminary Examination of Technical Proposals and determination of Responsiveness is as itemized below: i. Ability to meet the eligibility criteria pursuant to Clause 4. ii. If the Bid is properly signed. iii. If the Bid is accompanied by the required securities. iv. Copies of certificate of incorporation/registration for local firms or equivalent for foreign firms. v. Responsiveness of the Bid to the requirements of the bidding documents. vi. Bid security validity vii. Whether the Bid provides any clarification and/or substantiation that the Employer may require pursuant to Clause 29. viii. History of non-performing contracts. Non-performing contracts should not occur within the last Five (5) years prior to the deadline for application submission, based on all information on fully settled disputes or litigation. A fully settled dispute or litigation is one that has been resolved in accordance with the Dispute Resolution Mechanism under the respective contract, and where all appeal instances available to the bidder have been exhausted. ix. Litigation history. All pending litigation shall in total not represent more than Twenty percent (20%) of the Bidder s net worth and shall be treated as resolved against the Bidder. x. Audited balance sheets, for the last Three [3] years to demonstrate the current soundness of the bidders financial position and its prospective long term profitability. xi. Minimum average annual turnover as prime contractor (defined as Page 25 of 300

26 Page 26 of 300 Section 1 Instructions to bidders billing for works in progress and completed) over the last Five (5) years of 10 Billion Kenya Shillings. xii. The Bidder must demonstrate access to, or availability of, financial resources such as liquid assets, unencumbered real assets, lines of credit, and other financial means, other than any contractual advance payments to meet: a) A construction cash-flow requirement of One Billion (1,000,000,000) Kenya Shillings b) The overall cash flow requirements for this contract and its current commitments. xii. General experience under contracts in the role of contractor, subcontractor, or management contractor for at least the last Five [5] years prior to the applications submission deadline. xiii. Specific Experience: a) Successful experience as a contractor, management contractor, or subcontractor, in the execution of at least One (1) project of a nature and complexity comparable to the proposed contract within the last Ten (10) years, with a value of at least Eighteen Billion (18 Billion) Kenya Shilling. The similarity shall be based on the complexity, methods/technology or other characteristics as described in Section IV, Employer s Requirements. b) For the above or other contracts executed during the period stipulated in xiii (a) above, this experience should include minimum key production rates of: Laying of water pipes 800mm dimeter at a rate of 2850m per month Earthworks at a rate of 130,000 cubic meters per month Concrete works at a rate 3000 cubic meters per month. xiv. Necessary equipment for construction of dam, water treatment plant, transmission pipeline, storage tanks shall be required. The Applicant should own, or have proved access (through hire, lease, purchase agreement, availability of manufacturing equipment, or other means) to at least the following key items of equipment in full working order, and must demonstrate that, based on known commitments, they will be available for use in the proposed contract. The Applicant shall own at least 50% of the heavy construction equipment considered necessary for the successful execution of works. He shall provide for each of these equipment a copy of the registration document and / or copy of the purchase invoice mentioning supplier s name and address, date of purchasing. The Applicant may also list alternative equipment that it would propose for the contract, together with an explanation of the proposal. Equipment type and Minimum number required characteristics Excavators 4 Lorries (7 ton) 2 Tippers (15 ton) 14 Dumpers 4 Tractors 2 Concrete Mixers including 6 batch weighing batching plant >40m 3 /h 1 crushing/screening plant 1 concrete pump > 20m 3 /h, 1 Concrete Vibrators 35mmØ 4 Cranes (5 ton) 2 Compressors (5,000 l/min) 2

27 Generator (15kVA) 2 Generator (150kVA) 1 Total Station 2 Trailers (10 ton) 1 Bar Bending Machine 2 Dewatering pumps 4 Drilling equipment, 1 diaphragm wall equipment 1 vibratory roller > 20t 1 mobile crane 1 Page 27 of 300 Section 1 Instructions to bidders xv. Environnemental and Social Clause The Applicant shall undertake to respect national and international norms on the protection of the environment and labour laws applicable in Kenya where the Project is being implemented, including the ILO fundamental agreements and international agreements on environment in order to promote sustainable development that respect environment and social norms. In the case where the norms are not observed, the Employer will take all appropriate measures; to implement an approach of controlling the environmental and social risks in particular applying mitigation measures in the conditions agreed; to require the Contractor to apply these mitigation measures and that they ensure that these measures are respected by their sub-contractors and in case of any breach, to take all appropriate measures. The Applicant shall provide the Employer with a summarized social and environmental notice describing succinctly: - The company s commitment to comply with the social and environmental clauses stipulated above and to have them complied by his sub-contractors - The outline of the company s internal social policy - The outline of the company s hygiene and security policy - The outline of the company s internal environmental policy, mentioning possible classifications used by the Applicant and how this policy joins the company s quality policy - The Applicant s understanding of social and environmental stakes of the project Bid(s) NOT satisfying the above criteria shall be declared NON RESPONSIVE and rejected by the Employer A substantially responsive bid is one which conforms to all the terms, conditions and requirements of the bidding documents, without material deviation or reservation. A material deviation or reservation is one: i. which affects in any substantial way the scope, quality or performance of the Works; ii. which is inconsistent with the bidding documents and limits in any substantial way, the Employer s rights or the bidder's obligations under the Contract; or iii. whose rectification would affect unfairly the competitive position of other bidders presenting substantially responsive bids If a bid is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the nonconforming deviation or reservation The Criteria, sub-criteria, and point system for the Evaluation and Comparison of Technical Proposals is as itemized below:

28 Section 1 Instructions to bidders No. DESCRITION Pts (i) Specific Experience of the firm in similar 10 Finance, Design & Build assignments (ii) Proposed Conceptual Design for the Dam, & related scope 23 a) Hydrological Report 5 b) Sizing of Dam and Spillway 3 c) Conceptual Designs for dam and spillway and proposed works layout and sections and other technical details AND CALCULATIONS (iii) Proposed Conceptual Treatment Works, pump houses, electromechanical works and storage tanks a) Proposed Location for the Treatment Works, Pump house and Storage Tanks b) Treatment process proposed and conceptual design for the Treatment Works Storage Tanks and Pump house c) Outline drawings for the Proposed Works (iv) Proposed Conceptual Design pipeline works & related scope a) Design concepts and preliminary calculations 10 5 b) Preliminary pipeline profiles (drawings) 5 (v) (vi) Adequacy and quality of the proposed 10 methodology and work plan for construction works and availability of construction equipment. Suitability, quality and adequacy of the 10 proposed quality control plan. a) Inspection plan & field practices 2 b) Material tesing 5 Adequacy of on-site laboratory 1 Adequacy of off-site laboratory 2 Evaluation of testing data & actions 2 required c) Environmental compliance 3 (vii) Key Personnel s qualifications and 15 competence for the Assignment for the works and design services. a) Project manager or Dam structure 2 expert General qualifications 1.0 Adequacy for the Assignment 1.0 Page 28 of 300

29 Section 1 Instructions to bidders b) Geologist 1 General qualifications 0.5 Adequacy for the Assignment 0.5 c) Dam Safety/ Instrumentation expert 1 General qualifications 0.5 Adequacy for the Assignment 0.5 d) Site Agent 1 General qualifications 0.5 Adequacy for the Assignment 0.5 e) Materials Engineer 1 General qualifications 0.5 Adequacy for the Assignment 0.5 f) Site Measurements Engineer/ Quantity 1 Surveyor General qualifications 0.5 Adequacy for the Assignment 0.5 g) Site Engineering Surveyor 1 General qualifications 0.5 Adequacy for the Assignment 0.5 h) Environmental specialist 1 General qualifications 0.5 Adequacy for the Assignment 0.5 i) Hydraulic Engineer 1 General qualifications 0.5 Adequacy for the Assignment 0.5 j) Social Economist 1 General qualifications 0.5 Adequacy for the Assignment 0.5 k) Hydrologist 1 General qualifications 0.5 Adequacy for the Assignment 0.5 Page 29 of 300

30 Section 1 Instructions to bidders l) Water treatment specialist 1 General qualifications 0.5 Adequacy for the Assignment 0.5 m) Structural Engineer 1 General qualifications 0.5 Adequacy for the Assignment 0.5 n) Site Electrical/ Mechanical Engineer 1 General qualifications 0.5 Adequacy for the Assignment 0.5 Note: The Bidder will supply information as per the curriculum vitae format provided in section 8 E, SCHEDULE OF KEY PERSONNEL, Note c) on a prime candidate meeting the experience requirements specified in section 8 E, SCHEDULE OF KEY PERSONNEL, Note b). (viii) Local Participation: Firms fully owned by 5 locals or at least 50% of the proposed key personnel to be local or at least 15% of the value of the works to be executed by firms fully owned by locals. (ix) Transfer of knowledge & technical skills 5 Total Points 100 The minimum technical score(st) required to pass is: 75 Opening and Evaluation of Price Proposals The criteria for Preliminary Examination of Price Proposals and determination of Responsiveness is as itemized below: i. Letter of intent from a financier expressing its agreement in financing the cost of the proposed project clearly indicating terms of payment including interest rate, payment period with Credit terms within the limits acceptable by the National Treasury of Kenya. ii. Completeness of proposal, iii. Bid security amount if adequate, iv. Proper signing of the proposal, v. If proposal is substantially responsive to the requirements of the bidding documents; vi. If proposal provides any clarification and/or substantiation that the Employer may require pursuant to Clause 35. Bid(s) NOT satisfying the above conditions shall be declared NON RESPONSIVE and rejected by the Employer For the evaluation purposes, prices shall be KENYA SHILLING. Page 30 of 300

31 Section 1 Instructions to bidders The applicable date for exchange rates for evaluation purposes is 28 days earlier than the final deadline for the submission of bids A firm(s) fully owned by locals, or with at least 50% local key personell or with at least 15% of the value of works being executed by firms fully owned by locals will be awarded 5 points. Award of Contract A firm will be selected under the Quality- and Cost- Based Selection (QCBS) The total score under the Quality- and Cost- Based Selection (QCBS) will be calculated by combining the technical (St) and financial (Sf) scores using the weights (T= the weight given to the Technical Proposal; P= the weight given to the Financial Proposal; T+P=1) as following: S= (St x T) + (Sf x P). The weights given to the Technical(T) and Financial(P) Proposals are: T=0.8, and P=0.2 The Criteria, sub-criteria, and point system for the Evaluation and Comparison of Price Proposals under the Quality-and Cost-Based Selection is as indicated below: No. DESCRIPTION Pts (i) Bid price 50 (ii) Financing arrangement, Based on: 50 a) Interest Amount 13 b) Repayment Period 13 c) Other Charges 7 d) Confirmation of availability of funding & 17 suitable timing Total Points 100 Notes: (i) Bid Price Evaluation The lowest evaluated Bid Price (Fm) is given the maximum financial score (Sf) of 50 The formula for determining the financial scores(sf) of all other proposals is calculated as following: Sf= 50 x Fm/F, in which Sf is the financial score, Fm is the lowest price, and F the price of proposal under consideration. (ii) a) Interest Rate Evaluation The lowest evaluated Interest Rate (Fir) is given the maximum financial score (Sf) of 13 The formula for determining the financial scores(sf) of all other proposals is calculated as following: Sf= 13 x Fir/F, in which Sf is the financial score, Fir is the lowest interest rate, and F the interest rate of proposal under consideration. Page 31 of 300

32 Section 1 Instructions to bidders b) Repayment Period Evaluation The longest evaluated repayment period (Frp) is given the maximum financial score (Sf) of 13 The formula for determining the financial scores(sf) of all other proposals is calculated as following: Sf= 13 x F/Frp, in which Sf is the financial score, Frp is the longest repayment period, and F the repayment period of proposal under consideration. c) Other Charges Evaluation The lowest evaluated other charges (Foc) is given the maximum financial score (Sf) of 7 The formula for determining the financial scores(sf) of all other proposals is calculated as following: Sf= 7 x Foc/F, in which Sf is the financial score, Foc is the lowest other charges, and F the other charges of proposal under consideration. d) Confirmation of availability of funding & suitable timing The Shortest evaluated time taken to mobilize the financing (Fmf) is given the maximum financial score (Sf) of 17 The formula for determining the financial scores(sf) of all other proposals is calculated as following: Sf= 17 x Fmf/F, in which Sf is the financial score, Fmf is the shortest time taken to mobilize financing, and F the time taken to mobilize financing of proposal under consideration Subject to Clause 42, the Employer will award the Contract to the bidder whose bid has been determined to be substantially responsive to the bidding documents and who has achieved the highest combined technical and financial score as per the Quality- and Cost- Based Selection (QCBS) Within 7days but not earlier than fourteen (14) days since notification of award of contract, the successful Bidder shall sign and date the contract and return it to the Employer The amount of performance security shall be Ten (10) Percent of the Contract Price The amount of advance payment shall be Twenty (20) Percent of the Contract Price The Borrower is the Government of the Republic of Kenya Page 32 of 300

33 Section 2 General Conditions of Contract Section 2. Part I General Conditions of Contract Page 33 of 300

34 Section 2 General Conditions of Contract Section 2. Part I General Conditions The Conditions of Contract comprise two parts: Part I General Conditions (Section 2 of this document), and Part II Conditions of Particular Application (Section 3 of this document) as per FIDIC Plant and Design Build First Edition Copies of the FIDIC Conditions of Contract for Plant and Design-Build First Edition 1999 can be obtained from: FIDIC Secretariat P.O. Box Lausanne 12 Switzerland Facsimile: Telephone: Page 34 of 300

35 Section 3 Conditions of Particular Applications Section 3. Part II Conditions of Particular Application 1. General Provisions Sub-Clause The Contract Amend Subpara ( Contract ) by adding the following at the end: The words Agreement and Contract are used interchangeably. Amend Subpara ( Tender ) by adding the following at the end: The word tender is synonymous with Bid, and the words Letter of Tender with Letter of Bid, and the words Appendix to Tender with Appendix to Bid, and the words tender documents with Bidding Documents. Sub-Clause Dates, Tests, Periods and Completion Sub-Clause 1.4 Amend Sub-Para by inserting the following after the reference to Sub-Clause 11.1: which extends over twelve months except if otherwise stated in the Appendix to Bid. Replace the text of Sub-Clause 1.4 and add the following: "The law of the Contract is the law of Kenya. The language is the English language" Sub-Clause 1.5 Priority of Documents Delete the list of documents listed under (a) to (h) and add the following: "(a) the Contract Agreement; (b) the Letter of Acceptance; (c) the Employer s Requirements; (d) the Bid; (e) the Conditions of Contract, Part II; (f) the Conditions of Contract, Part I; (g) the Schedules; (h) the Drawings; and (i) the Contractor s Proposal." Sub-Clause 1.12 Confidential Details Replace the text of Sub-Clause 1.12 with the following: The Contractor s and the Employer s Personnel shall disclose all such confidential and other information as may be reasonably required in order to verify the Contractor s compliance with the Contract and allow its proper implementation; provided that the requirements of this Sub-Clause 1.12 shall not apply to authorized Representatives of the Employer and the Employer s Audit. Each of the Parties shall treat the details of the Contract as private and confidential, except to the extent necessary to carry out their respective obligations under the Contract or to comply with applicable Laws. Each of them shall not publish or disclose any particulars of the design and of the Works prepared by the other Party without the previous agreement of the other Party. However, the Contractor shall be permitted to disclose any publicly available information, or, with the prior consent of the Page 35 of 300

36 Section 3 Conditions of Particular Applications Employer, information otherwise reasonably required to establish its qualifications to compete for other projects. If any dispute arises as to the necessity of any publication or disclosure of the details of the Contract, the same shall be referred to the Employer whose determination shall be final. The Contractor shall ensure that the requirements imposed on the Contractor by this Sub-Clause apply equally to each Subcontractor. Sub-Clause 1.13 Compliance with Laws Sub-Clause 1.14 Joint and Several Liability Amend Sub-Clause 1.13(b) by adding the following at the end: unless the Contractor is impeded to accomplish these actions and shows evidence of its diligence. Amend Sub-Clause 1.14(a) by adding the following at the end: or these persons shall be jointly and severally liable to the Employer for the performance of the Contract as defined in their Agreement. Replace Sub-Clause 1.14(b) with these persons shall be bound to the Employer as defined in their Agreement 3. The Engineer Sub-Clause 3.1 Engineer s Duties and Authority Amend Sub-Clause 3.1 by replacing the word may in the first sentence of the third paragraph with the word shall. Amend Subpara. (b) of Sub-Clause 3.1 by deleting the word and at the end. Amend Subpara. (c) of Sub-Clause 3.1 by replacing the period at the end with ; and. Amend Sub-Clause 3.1 by adding the following at the end: (d) any act by the Engineer in response to a Contractor s request except otherwise expressly specified shall be notified in writing to the Contractor within 28 days of receipt. The following provisions also shall apply: The Engineer shall obtain the specific approval of the Employer before taking action under the-following Sub-Clauses of these Conditions: (i) (ii) (iii) (iv) (v) Sub-Clause 4.12 [Unforeseeable Physical Conditions]: Agreeing to or determining an extension of time and/or additional cost. Sub-Clause 10.1 [Taking-over of the Works and Sections]: Prior to issuing Taking-Over Certificate. Sub-Clause 11.9 [Performance Certificate]: Prior to issuing Performance Certificate. Sub-Clause 13.1 [Right to Vary]: Instructing a Variation, except if such a Variation would increase the Accepted Contract Amount by less than the percentage specified in the Appendix to Bid. Sub-Clause 13.3 [Variation Procedure]: Approving a proposal for Variation submitted by the Contractor in accordance with Sub- Clause 13.1 [Right to Vary] or 13.2 [Value Engineering], except if such a Variation would increase the Accepted Contract Amount by Page 36 of 300

37 Section 3 Conditions of Particular Applications less than the percentage specified in the Appendix to Bid. (vi) Sub-Clause 13.4 [Payment in Applicable Currencies]: Specifying the amount payable in each of the applicable currencies. Notwithstanding the obligation, as set out above, to obtain approval, if, in the opinion of the Engineer, an emergency occurs affecting the safety of life or of the Works or of adjoining property, he may, without relieving the Contractor of any of his duties and responsibility under the Contract, instruct the Contractor to execute all such work or to do all such things as may, in the opinion of the Engineer, be necessary to abate or reduce the risk. The Contractor shall forthwith comply, despite the absence of approval of the Employer, with any such instruction of the Engineer. Within 7 days of having issued such emergency instructions, the Engineer shall submit written documentation of such instructions to the Employer. The Engineer shall determine an addition to the Contract Price, in respect of such instruction, in accordance with Clause 13 [Variations and Adjustments] and shall notify the Contractor accordingly, with a copy to the Employer. 4. The Contractor Sub-Clause 4.1 Contractor s General Obligations (a) Add the following sentence to precede the existing text under Sub- Clause 4.1: "The Contractor is required to check the design criteria and calculations (if any) included in the Employer s Requirements, to confirm their correctness, in its bid and to assume full responsibility for them." Amend sub-clause 4.1 by adding the following at the end. The Contractor and its Subcontractors, including their respective personnel and affiliates, shall at all times during the term of this Contract have the nationality of a country or territory eligible, in accordance with the contract., The Contractor or a Subcontractor and their respective personnel and affiliates shall be deemed to have the nationality of a country if it is a citizen or constituted, incorporated, or registered, and operates in conformity with the provisions of the laws of that country. All Equipment, Materials, Plant and any services to be incorporate in or required for the Works shall have their origin in Eligible Countries. For the purpose of this Sub-Clause 4.1, origin means the place where the Equipment, Materials or Plant have been mined, grown, cultivated, produced, manufactured, or processed; or through manufacture, processing, or assembly, another commercially recognized article results that differs substantially in its basic characteristics, purposes or utility from its underlying components. With respect to any services, the term origin means the place from which the services are supplied. Sub-Clause 4.2 Performance Security Amend Sub-Clause 4.2 by adding the following at the end: Without limitation to the other provisions of this Sub-Clause 4.2, whenever the Engineer determines an addition to the Contract Price as a result of a change in cost and/or legislation or as a result of a Variation amounting to more than 10 percent of the portion of the Contract Price payable in a specific currency, the Contractor, at the Engineer s written request, shall promptly increase the value of the Performance Security in the applicable currency by an equal percentage. Page 37 of 300

38 Section 3 Conditions of Particular Applications The Performance Security shall be in the form of a Bank Guarantee or Insurance Bond, it shall be issued either at the Bidder s option, by a bank or insurance firm located in Kenya, or a foreign bank or insurance firm through a correspondent bank or insurance firm located in Kenya Sub-Clause 4.3 Contractor s Representative Sub-Clause 4.8 Safety Procedures Sub-Clause 4.18 Protection of the Environment The performance security shall be denominated in the types and proportions of currencies in which the Contract Price is payable. The cost of complying with the requirements of this clause shall be borne by the contractor. Amend Sub-Clause 4.3 by adding the following at the end: If the Engineer determines that the Contractor s Representative or any of these persons are not fluent in the said language, the Contractor shall make competent interpreters available during all working hours in a number deemed sufficient by the Engineer. Amend Sub-Clause 4.8 by adding the following at the end: The Contractor shall notify the Engineer and Employer within 48 hours or as soon as reasonably possible after the occurrence of any accident which has resulted in damage or loss of property, disability or loss of human life, or which has or which could reasonably be foreseen to have a material impact on the environment and shall submit to the Engineer and Employer no later than 28 days after the occurrence of such an event, a summary report thereof. Amend Sub-Clause 4.18 by adding the following at the end: The Contractor shall be responsible for ensuring that all Subcontractor s and Contractor s Personnel understand and operate in accordance with the principles and requirements of the environmental and social impacts provisions of this Sub-Clause. The Contractor s program shall demonstrate clearly the procedures and methods of working that the Contractor and its Subcontractors will adopt to comply with the environmental and social impacts requirements of this Sub-Clause. The Contractor shall ensure the adequate disposal of construction and excavation wastes. The Contractor shall restore the Site to original conditions or to a state as set out in the Employer s Requirements after the completion of the Works. Sub-Clause 4.21 Progress Reports Amend Sub-Clause 4.21 by adding the following at the end: Within 7 days of the submission by the Contractor of each monthly progress report, the Engineer and the Employer shall meet with the Contractor to discuss the progress of the Works. 5. Design Sub-Clause 5.4 Technical Standards and Regulations Add the following sentence to the end of the Sub-Clause 5.4: "In respect of technical specifications and standards, any national or international standards which promise to confer equal or better quality than the standards specified will also be acceptable." Page 38 of 300

39 Section 3 Conditions of Particular Applications 6. Staff and Labor Sub-Clause 6.4 [Labour Laws] To add at the end of this sub-clause: Notwithstanding the above provisions and any other provisions under Part I, the employer and the contractor shall comply with the following: 1.1 (a) The rates of remuneration and other conditions of work of the employees of the Contractor shall not be less favourable than those established for work of the same character in the trade concerned- (i) (ii) by collective agreement applying to a substantial proportion of the workers and employers in the trade concerned; by arbitration awards (b) Where remuneration and conditions of work are not regulated in a manner referred to at (a) above, the rates of the remuneration and other conditions of work which are not less favourable than the general level observed in the trade in which the contractor is engaged by employers whose general circumstances are similar. 1.2 No contractor shall be entitled to any payment in respect of work performed in the execution of the contract unless he has, together with his claim for payment, filed a certificate: (a) stating the rates of remuneration and hours of work of the various categories of employees employed in the execution of the contracts; (b) stating whether any remuneration payable in respect of work done is due; (c) containing such other information as the authorized officer administering the contract may require to satisfy himself that the provisions under this clause have been complied with. 1.3 Where the authorized officer is satisfied that remuneration is still due to an employee employed under this contract at the time the claim for payment is filed, he may, unless the remuneration is sooner paid by the Contractor, arrange for the payment of the remuneration out of the money payable under this contract. Sub-Clause 6.8 Contractor s Superintendence Sub-Clause 6.12 Foreign Personnel Amend Sub-Clause 6.8 by adding the following at the end: If the Engineer determines that the Contractor s Personnel providing superintendence have inadequate knowledge of such language, the Contractor shall make competent interpreters available during all working hours in a number deemed sufficient by the Engineer. Add the following Sub-Clause 6.12: The Contractor may bring in to the Country any foreign personnel who are necessary for the execution of the Works to the extent allowed by the applicable Laws. The Contractor shall ensure that these personnel are provided with the required residence visas and work permits. The Employer 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. Page 39 of 300

40 Section 3 Conditions of Particular Applications The Contractor shall be responsible for the return of these personnel to the place where they were recruited or to their domicile. In the event of the death in the Country of any of these personnel or members of their families, the Contractor shall similarly be responsible for making the appropriate arrangements for their return or burial. Sub-Clause 6.13 Prohibition of Harmful Child Labor Sub-Clause 6.14 Employment Records of Workers Sub-Clause 6.15 Measures against Insect & Pest Nuisance Sub-Clause 6.16 Epidemics Sub-Clause 6.17 Alcoholic Liquors or Drug Sub-Clause 6.18 Arms and Ammunition Sub-Clause 6.19 Festivals and Religious Customs Add the following Sub-Clause 6.13: 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. Add the following Sub-Clause 6.14: The Contractor shall keep complete and accurate records of the employment of labor at the Site. The records shall include the names, ages, genders, hours worked and wages paid to all workers. These records shall be summarized on a monthly basis and submitted to the Engineer, and these records shall be available for inspection by auditors during normal working hours. These records shall be included in the details to be submitted by the Contractor under Sub-Clause 6.10 [Records of Contractor s Personnel and Equipment]. The Contractor shall at all times take the necessary precautions to protect all staff and labour employed on the Site from insect and pest nuisance, and to reduce the dangers to health and the general nuisance occasioned by the same. The Contractor shall provide its staff and labour with suitable prophylactics for the prevention of malaria and take steps to prevent the formation of stagnant pools of water. The Contractor shall comply with all the regulations of the local health authorities and shall arrange to spray thoroughly with approved insecticide all buildings erected on the Site. Such treatment shall be carried out at least once a year or as instructed by such authorities." In the event of any outbreak of illness of an epidemic nature, the Contractor shall comply with and carry out such regulations, orders and requirements as may be made by the Government or the local medical or sanitary authorities, for the purpose of dealing and overcoming the same." "The Contractor shall not, otherwise than in accordance with the statutes, ordinances and government regulations or orders for the time being in force, import, sell, give, barter or otherwise dispose of any alcoholic liquor or drugs, or permit or suffer any such importation, sale, gift, barter or disposal by his Subcontractors, agents staff or labour." The contractor shall not give, barter or otherwise dispose of to any person or persons, any arms or ammunition of any kind or permit or suffer to the same as aforesaid. The Contractor shall in all dealings with his staff and labour have due regard to all recognized festivals, days of rest and religious or other customs. 7. Plant, Materials and Workmanship Sub-Clause 7.7 Add the following sub-clause after sub-clause 7.8 Page 40 of 300

41 Section 3 Conditions of Particular Applications Ownership of Plant and Materials (a) (b) (c) (d) Any materials, equipment, services or design services which will be incorporated in or required for the Contract, as well as the Contractor s Equipment and other supplies, shall have their origin in eligible source countries. For the purpose of this clause, "services" means the works and all project-related services including design services. For the purposes of this clause, "origin" means the place where the materials and equipment were mined, grown, produced, or manufactured, or from which the services are provided. The origin of Goods and Services is distinct from the nationality of the Supplier." 8. Commencement, Delays and Suspension Sub-Clause 8.6 Rate of Progress Sub-Clause 8.12 Resumption of Work Sub-Clause 11.3 Extension of Defects Notification Period Amend Sub-Clause 8.6 by inserting the following at the end: Additional costs of revised methods, including acceleration measures, instructed by the Engineer to reduce delays resulting from causes listed under Sub-Clause 8.4 [Extension of Time for Completion] shall be paid by the Employer, without generating, however, any other additional payment benefit to the Contractor. Amend Sub-Clause 8.12 by inserting the following at the end: after receiving from the Engineer an instruction to this effect under Clause 13 [Variations and Adjustments]. 11. Defects Liability Amend Sub-Clause 11.3 by inserting the following at the end of the first sentence of the first paragraph: attributable to the Contractor. 13. Variations and Adjustments Sub-Clause 13.1 Right to Vary Amend Sub-Clause 13.1 by deleting the word or at the end of clause (ii) in the second paragraph and by inserting the following at the end of the first sentence of the second paragraph: or (iv) such Variation triggers a substantial change in the sequence or progress of the Works. Sub-Clause 13.7 Adjustments for Changes in Legislation Amend Sub-Clause 13.7 by adding the following at the end: Notwithstanding the foregoing, the Contractor shall not be entitled to such an extension of time if the same shall already have been taken into account in determining an extension and such Cost shall not be separately paid if the same shall already have been taken into account in the indexing of any inputs to the table of adjustment data in accordance with the provisions of Sub-Clause 13.8 [Adjustments for Changes in Cost]. 14. Contract Price and Adjustment Sub-Clause 14.1 The Contract Price Amend Sub-Clause 14.1 by adding the following at the end: Page 41 of 300

42 Section 3 Conditions of Particular Applications The Engineer shall agree or determine the value of those parts of the Works which are to be measured, in accordance with Sub-Clause 3.5 [Determinations]. Measurement shall be made of the net actual quantities of those parts. Whenever the Engineer requires any part of the Works to be measured, reasonable notice shall be given to the Contractor s Representative, who shall: (a) promptly either attend or send another qualified representative to assist the Engineer in making the measurement, and (b) Supply any particulars requested by the Engineer. If the Contractor fails to attend or send a representative, the measurement made by (or on behalf of) the Engineer shall be accepted as accurate. Except as otherwise stated in the Contract, wherever any Permanent Works are to be measured by records, they shall be prepared by the Engineer. The Contractor shall, as and when requested, attend to examine and agree the records with the Engineer, and shall sign the same when agreed. If the Contractor does not attend to examine and agree these records, they shall be accepted as accurate. If the Contractor examines and disagrees with the records, and/or does not sign them as agreed, then the Contractor shall notify the Engineer of the respects in which the records are asserted to be inaccurate. After receiving this notice, the Engineer shall review the records and either confirm or vary them. If the Contractor does not so notify the Engineer within 14 days after being requested to examine the records, they shall be accepted as accurate. Sub-Clause 14.2 Advance Payment Add the following paragraphs to precede the existing text under Sub- Clause 14.2 The Contractor shall submit a request to the Employer for Advance payment showing the amounts to which the Contractor considers himself to be entitled. Amend Sub-Clause 14.2 by deleting the phrase, as an interest-free loan from the first sentence of the first paragraph (in the order of paragraphs prior to the amendments). Amend Sub-Clause 14.2 by replacing the sixth paragraph (in the order of paragraphs prior to the amendments) with the following: The advance payment shall be repaid by means of the formula: Where: = the amount to be recovered = the amount of the advance which has been granted = he amount of the proposed cumulative payments as a percentage of the original amount of the contract. This figure will exceed 20% but Page 42 of 300

43 Section 3 Conditions of Particular Applications. not exceed 80%. = the amount of the previous cumulative payments as a percentage of the original amount of the contract. This figure will be below 80% but not less than 20%. Amend Sub-Clause 14.2 by inserting the following after become due in the final sentence: and in the case of termination under Clause 15 [Termination by Employer] or Sub-Clause 19.6 [Optional Termination, Payment and Release], Sub-Clause 14.7 Payment Sub-Clause 14.8 Delayed Payment Amend Sub-Clause 14.7 by replacing the first line with the following: The Employer shall pay or cause to be paid to the Contractor: Amend Sub-Clause 14.8 by replacing the second paragraph with the following: These financing charges shall be calculated at the annual rates of interest and shall be paid in the currencies indicated in the Appendix to Bid. Sub-Clause 14.9 Payment of Retention Money Amend Sub-Clause 14.9 by adding the following at the end: When the Taking-Over Certificate has been issued for the Works and the first half of the Retention Money has been certified by the Engineer for payment, the Contractor shall be entitled to substitute a guarantee, in the form annexed to the Particular Conditions or in another form approved by the Employer and provided by an entity approved by the Employer, for the second half of the Retention Money. The Contractor shall ensure that the guarantee is in the amounts and currencies of the second half of the Retention Money and is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects, as specified for the Performance Security in Sub-Clause 4.2 [Performance Security]. On receipt by the Employer of such guarantee, the Engineer shall certify and the Employer shall pay, or cause to be paid, the second half of the Retention Money. The release of the second half of the Retention Money against such guarantee shall then be in lieu of the release under the second paragraph of this Sub-Clause. The Employer shall return the guarantee to the Contractor within 21 days after receiving a copy of the Performance Certificate. If the Performance Security required under Sub-Clause 4.2 [Performance Security] is in the form of a demand guarantee, and the amount guaranteed under it when the Taking-Over Certificate is issued is more than half of the Retention Money, then the Retention Money guarantee will not be required. If the amount guaranteed under the Performance Security when the Taking-Over Certificate is issued is less than half of the Retention Money, the Retention Money guarantee will only be required for the difference between half of the Retention Money and the amount guaranteed under the Performance Security. Sub-Clause Application for Final Payment Certificate Amend Sub-Clause by inserting the following in the first sentence of the second paragraph after may reasonably require : within 28 days from request of the Engineer Page 43 of 300

44 Section 3 Conditions of Particular Applications 16. Suspension and Termination by Contractor Sub-Clause 16.2 Termination by Contractor Amend Subpara. (d) of Sub-Clause 16.2 by adding the following at the end: in such manner as to materially and adversely affect the economic balance of the Contract and/or the ability of the Contractor to perform the Contract, Amend Subpara. (f) of Sub-Clause 16.2 by deleting the word or at the end. Amend Subpara, (g) of Sub-Clause 16.2 by replacing the period at the end with ; or. Amend Sub-Clause 16.2 by adding the following at the end of the first paragraph: (h) the Contractor does not receive the Engineer s instruction recording the agreement of both Parties on the fulfillment of the conditions for the commencement of Works under Sub-Clause 8.1 [Commencement of Works]. 17. Risk and Responsibility Sub-Clause 17.3 Employer s Risks Sub-Clause 17.6 Limitation of Liability Amend Sub-Clause 17.3 by replacing the first line with the following: The Employer s risks, insofar as they directly affect the design and execution of the Works, Amend Sub-Clause 17.6 by replacing the first paragraph with the following: Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract, other than as specifically provided in Sub-Clause 8.7 [Delay Damages]; Sub-Clause 11.2 [Cost of Remedying Defects]; Sub-Clause 15.4 [Payment after Termination]; Sub-Clause 16.4 [Payment on Termination]; Sub-Clause 17.1 [Indemnities]; Sub-Clause 17.4 (b) [Consequences of Employer s Risks] and Sub-Clause 17.5 [Intellectual and Industrial Property Rights]. 18. Insurance Sub-Clause 18.1 General Requirements for Insurance Sub-Clause 18.5 Insurance for Design Amend Sub-Clause 18.1 by adding the following at the end: The insuring Party shall be entitled to place all insurance relating to the Contract (including, but not limited to the insurance referred to in Clause 18 [Insurance]) with insurers from any eligible source country unless otherwise stated in the Appendix to Bid. Add the following Sub-Clause 18.5: The Contractor shall effect professional indemnity insurance which shall cover the risk of professional negligence in the design of the Works. This insurance shall be for a limit of not less than the amount stated in the Appendix to Bid, with no limit on the number of occurrences. The Contractor shall maintain the professional indemnity insurance in full Page 44 of 300

45 Section 3 Conditions of Particular Applications force and effect until 5 years after the Time for Completion. The Contractor undertakes to notify the Employer promptly of any difficulty in extending, renewing or reinstating this insurance. 19. Force Majeure Sub-Clause 19.4 Consequences of Force Majeure Sub-Clause 20.1 Contractor s Claims Amend Sub-Clause 19.4 by inserting the following at the end of Subpara. (b):, including the costs of rectifying or replacing the Works and/or Goods damaged or destroyed by Force Majeure, to the extent they are not indemnified through the insurance policy referred to in Sub-Clause 18.2 [Insurance for Works and Contractor s Equipment]. 20. Claims, Disputes and Arbitration Amend Sub-Clause 20.1 by inserting the following as a new paragraph between subparagraphs 6 and 7: Within the above defined period of 42 days, the Engineer 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. Amend Sub-Clause 20.1 by deleting paragraph 8 (in the order of paragraphs prior to the amendment made above) and replacing it with the following new paragraph: If the Engineer does not respond within the timeframe defined in this Sub-Clause, either Party may consider that the claim is rejected by the Engineer and either Party may refer such claim to the DAB in accordance with Sub-Clause 20.4 [Obtaining Dispute Adjudication Board s Decision]. Sub-Clause 20.2 Appointment of the Dispute Adjudication Board Sub-Clause 20.6 Arbitration Amend Sub-Clause 20.2 by inserting the following at the end of the first sentence of the second paragraph:, each of whom shall be fluent in the language for communication defined in the Contract and shall be a professional experienced in the type of construction involved in the Works and with the interpretation of contractual documents. Amend Sub-Clause 20.6 by replacing the first paragraph with the following: Any dispute not settled amicably and in respect of which the DAB s decision (if any) has not become final and binding shall be finally settled by arbitration. Unless otherwise agreed by both Parties, the dispute shall be referred to the competent court of Kenya or for Arbitration under Kenyan Laws. Page 45 of 300

46 Section 4. Employer s Requirements Section 4. Employer s Requirements Page 46 of 300

47 Section 4. Employer s Requirements Ndarugu 1 Dam Water Scheme Introduction The proposed Water Supply Scheme involves construction of 35m High Dam as proposed in the Nairobi Water Master Plan, raw water and treated water transmission through pumping. Raw water transmission will involve pumping of water from the dam to a proposed water treatment site located approximately 1km from the dam. The treated water transmission will involve pumping of water from the proposed treatment site to Utawala reservoir via a pipeline of approximate length 30Km. About 50,000m 3 /d of water will be distributed to serve parts of Nairobi lower than 1550 which include Ruai among others while the rest will be boosted to existing Ring Road Tank (35,000m 3 /d), proposed Embakasi Tank (38,000m 3 /d) and proposed Syokimau Tank (50,000m 3 /d). Water distribution from the existing and proposed tanks will then be by gravity to the demand areas. In brief, the proposed Ndarugu 1 Dam Water Supply Scheme will involve construction of the following works: Ndarugu 1 Dam on Ndarugu River approx. 1Km upstream of the confluence with Komu River Raw Water Pumping Station at Ndarugu 1 Dam Outlet Works Raw Water Pumping Main of approximate length of 1Km from Ndarugu 1 Dam to a Proposed Water Treatment Site Water Treatment Works, capacity 173,000m 3 /d Treated Water Pumping Station at the proposed Water Treatment Site, capacity 173,000m 3 /d Treated Water Pumping Main of approximate length of 30Km from the Pumping Station to Utawala Tank, capacity 173,000m 3 /d Treated Water Pumping Main of approximate length of 13Km from Utawala Tank to Ring Road Tank, capacity 35,000m 3 /d Treated Water Pumping Main of approximate length of 6Km from Utawala Tank to Embakasi Tank, capacity 38,000m 3 /d Treated Water Pumping Main of approximate length of 14Km from Utawala Tank to Syokimau Tank, capacity 50,000m 3 /d Treated water pumping main of approximate length of 40Km from Utawala Tank to Koma Tank, capacity 25,000m 3 /d Utawala, Embakasi, Syokimau, Mavoko, & Koma Tanks Distribution Mains from Syokimau Reservoir to Syokimau/Mlolongo, Athi River and Kitengela areas. Distribution Mains from Koma Reservoir to Nguluni, Tala and Kangundo town. A layout plan showing the proposed Ndarugu 1 Water Supply Scheme to Nairobi and Mavoko-Kitengela area and the existing water transmission systems is given in Figure 8.1. Page 47 of 300

48 Section 4. Employer s Requirements Dam Characteristics The dam optimal maximum height is proposed to be 35m high Roller Compacted Concrete Dam with a reservoir storage volume of approximately 225 Million m 3. The impoundment area at maximum dam height is approximately 14.5 Km 2 (1450 Ha). The construction of the Ndarugu 1 dam is expected to involve the works given in Table 8.4. Table 8.4: Estimated Works for Ndarugu 1 Dam Item Unit Quantity Soft Excavation m 3 150,000 Rock fill or Roller Compacted m 3 400,000 Concrete Curtain Grouting m 1000 Draw-off works, River Diversion among to the works Page 48 of 300

49 Section 4. Employer s Requirements Figure 8.1: Layout Plan Ndarugu 1 Scheme Raw Water Transmission The raw water transmission from Ndarugu 1 Dam to the water treatment works will comprise of Raw Water Pumping Station and a DN1200 Pumping Main. The raw water pumping station will be sited at the dam outlet works at the foot of the dam. The pumping station will include 100% stand-by capacity and the pump characteristics will be as follows: Pumping rate Head on Pumps Power - 3 7,200 m /hr 47.2 m 1,558 Kw The hydraulics constraints of the raw water transmission system are summarised in Table 8.5 below. Table 8.5: Raw Water Transmission Hydraulic Constraints and Optimisation Parameters Ndarugu 1 Dam Water Treatment Works Approximate Ground Elevation masl Static Lift - 40 m Approximate Distance Km Design Capacity - 173,000 m3/d Pipeline Diameter mm Nominal Pressure Rating - 10 bar Page 49 of masl