The Kenya Power & Lighting Co. Ltd.

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1 The Kenya Power & Lighting Co. Ltd. TENDER NO. KPLC1/6D/PT/D/02/11 SUPPLY, INSTALLATION AND COMMISSIONING OF ADDITIONAL FEEDER BREAKER AND 1MVA STEP- UP TRANSFORMER AT MANDERA AND LODWAR POWER STATIONS ALL TENDERERS ARE ADVISED TO READ CAREFULLY THIS TENDER DOCUMENT IN ITS ENTIRETY BEFORE MAKING ANY BID MARCH 2011 KPLC Tender Document for Electromechanical Works One Tender Opening System THE KENYA POWER & LIGHTING COMPANY LIMITED CENTRAL OFFICE, STIMA PLAZA, KOLOBOT ROAD, PARKLANDS, P.O. BOX , NAIROBI, KENYA. Telephones: ; Pilot Lines Telephones: /1-5/; /2-3 Cellular Facsimile: ; Telegrams: ELECTRIC Website:

2 2 TABLE OF CONTENTS PAGE INTRODUCTION 3 SECTION I INVITATION FOR TENDERS 4 SECTION II TENDER SUMBISSION CHECK LIST 5 SECTION III INSTRUCTIONS TO TENDERERS. 7 SECTION IV SECTION V APPENDIX TO INSTRUCTIONS TO TENDERERS 28 CONDITIONS OF CONTRACT, FOR ELECTRICAL AND MECHANICAL WORKS (INCLUDING ERECTION ON SITE) 29 SECTION VI SUMMARY OF EVALUATION PROCESS. 41 SECTION VII SPECIFICATIONS 44 SECTION VIII BILLS OF QUANTITIES AND PRICE SCHEDULE 67 SECTION IX STANDARD FORMS 71

3 3 INTRODUCTION 1.1 This standard tender document for procurement of works has been prepared for use by procuring entities in Kenya in the procurement of works (i.e Electrical and Mechanical Works Including Erection on Site). 1.2 The following guidelines should be observed when using the document: (a) (b) Specific details should be furnished in the tender notice and in the special conditions of contract (where applicable). The tender document issued to tenderers should not have blank spaces or options. The instructions to tenderers and the General Conditions of Contract should remain unchanged. Any necessary amendments to these parts should be made through Appendix to instructions to tenderers and special conditions of contract respectively. 1.3 (a) Information contained in the invitation to tender shall conform to the data and information in the tender documents to enable prospective tenderers to decide whether or not to participate in the tender and shall indicate any important tender requirements. (b) The invitation to tender shall be as an advertisement in accordance with the regulations or a letter of invitation addressed to tenderers who have been prequalified following a request for prequalification. 1.4 This document is based on PART 1 of the third Edition of the International Federation of Consulting Engineers (Federation Internationale des Ingenieurs Con Seils FIDIC) Conditions of Contract for Electrical and Mechanical Works, 1987 (reprinted May 1988 with Editorial Amendments). 1.5 The cover of the tender document should be modified to include: i. Tender number. ii. Tender name. iii. Name of procuring entity. iv. Delete name and address of PPOA

4 4 Tender reference No.: KPLC1/D/PT/D/02/10 SECTION 1 INVITATION FOR TENDERS DATE: 14 April 2011 Tender Name: SUPPLY, INSTALLATION AND COMMISSIONING OF ADDITIONAL FEEDER BREAKER AND 1MVA STEP-UP TRANSFORMER AT MANDERA AND LODWAR POWER STATIONS 1.1 The Kenya Power & Lighting Co. Ltd (KPLC) invites sealed tenders for the supply, installation and commissioning of additional feeder breaker and 1MVA step-up transformer at Mandera and Lodwar Power Stations. 1.2 Interested eligible candidates may obtain further information and inspect tender documents (and additional copies) at Stima Plaza, Kolobot Road, Nairobi, Second Floor during normal working hours. 1.3 A complete set of tender documents may be obtained by interested candidates from 2 nd Floor Stima Plaza at Rural Electrification section upon payment of a non-refundable fees of Kshs. 3,000 (or equivalent in US Dollars) in cash or Bankers Cheque payable at the Banking Hall, Ground Floor, at Stima Plaza, Nairobi, or 1 st Floor, Room Prices quoted should be net inclusive of all taxes and shall remain valid for 90 days from the closing date of tender. 1.5 Completed tender documents are to be enclosed in plain sealed envelopes marked with Tender name and reference number and deposited in the Tender Box situated on the Ground Floor, Stima Plaza, Nairobi or to be addressed to: The Company Secretary The Kenya Power & Lighting Company Ltd Stima Plaza, 7 th Floor, Kolobot Road P.O. Box Nairobi so as to be received on or before the date in tender advert at am. 1.6 Tenders will be opened immediately thereafter in the presence of the candidates or their representatives who choose to attend in the Auditorium, Stima Plaza. CHIEF MANAGER, SUPPLIES, STORES & TRANSPORT

5 5 SECTION II TENDER SUBMISSION CHECKLIST A. Tender Submission Format - Non-Financial Proposal This order and arrangement shall be considered as the Tender Submission Format, Non-Financial. Tenderers shall tick against each item indicating that they have provided it. No. Item Tick Where Provided 1 Tender Security Bank Guarantee or Insurance Bonds or Letters of Credit (All from acceptable and approved locally based Kenyan institutions) 2 Form of Tender 3* Copy of Valid Tax Compliance Certificate 4 Declaration Form 5 Confidential Business Questionnaire (CBQ) 6* Copy of PIN Certificate 7 Copy of Company or Firm s Registration Certificate 8 Names with full contact as well as physical addresses of previous customers of similar completed works and copies of completion certificate in the clients letterhead signed by a senior person in the clients firm 9 Valid and current ISO Certificates or for locally manufactured or produced goods, valid Standardization Mark Certificates from the Kenya Bureau of Standards (KEBS) and any other Product Quality Certificates 10 Type Test Certificates and their Reports and or Test Certificates and their Reports 11 Duly completed Schedule of Guaranteed Technical Particulars 12 Statement on Deviations 13 Catalogues and or Brochures and or Manufacturer s drawings 14 Manufacturer s Authorization (where required) 15 Any other document or item required by the Tender Document that is non-financial. (The Tenderer shall specify such other documents or items it has submitted) 16 Attach a copy of payment receipt for the tender

6 6 B. Tender Submission Format Financial Proposal This order and arrangement shall be considered as the Tender Submission Format, Financial. Tenderers shall tick against each item indicating that they have provided it. No. Item Tick Where Provided 1 Price Schedule(s) 2 Audited Financial Statements. The audited financial statements required must be those that are reported within fifteen (15) calendar months of the date of the Tender document. 3* Any other document or item required by the Tender Document that is financial. (The Tenderer shall specify such other documents or items it has submitted) C. Tender Submission Samples In addition to the above, Tenderers shall submit a Sample if required in the Tender Document. *NOTES TO TENDERERS 1. Valid Tax Compliance Certificate shall be one issued by the relevant tax authorities and valid for at least up to the Tender closing date. 2. All Kenyan registered Tenderers must provide a valid Tax Compliance Certificate. 3. All Kenyan registered Tenderers must provide the Personal Identification Number Certificate (PIN Certificate). 4. A non-financial document or item includes one that does not contain or reveal the Tender price(s) of the works and the required audited financial statements. 5. A financial document or item includes one that contains all information on the Tender price(s) of the goods and the required audited financial statements.

7 7 TABLE OF CLAUSES SECTION III INSTRUCTIONS TO TENDERERS CLAUSE NUMBERS DESCRIPTION PAGE GENERAL 1. Definitions 9 2. Eligibility and Qualification Requirements Cost of Tendering Site Visit.. 12 TENDER DOCUMENTS 5. Tender Documents Clarification of Tender Documents Amendments of Tender Documents PREPARATION OF TENDER 8. Language of Tender Documents Comprising the Tender Tender Prices Tender Form Currencies of Tender and Payment Tender Validity Tender Security No Alternative Offers Pre-Tender meeting Number of Sets and Tender Format SUBMISSION OF TENDERS 18. Preparation and Signing of Tenders Sealing and Marking of Tenders Deadline and Submission of Tenders Modification and Withdrawal of Tenders.. 21 TENDER OPENING AND EVALUATION 22. Tender Opening Process to be Confidential Clarification of Tenders and Contacting KPLC... 22

8 8 PAGE 25. Preliminary Tender Evaluation Minor Deviations, Errors or Oversights Technical Evaluation of Tenders Financial Evaluation of Tenders Preferences Tender Evaluation Period Debarment of Tender Confirmation of Qualification for Award.. 24 AWARD OF CONTRACT 33. Award of Contract Termination of Procurement Proceedings Notification of Award Signing of the Contract Performance Security Advance Payment Corrupt and Frudrent Practices.. 27

9 9 INSTRUCTION TO TENDERERS Note: The Tenderer must comply with the following conditions and instructions and failure to do so is liable to result in rejection of the Tender. GENERAL 1. Definitions In this Tender, unless the context or express provision otherwise requires: - a) Any reference to any Act shall include any statutory extension, amendment, modification, re-amendment or replacement of such Act and any rule, regulation or order made thereunder. b) Date of Tender document shall mean the first day and month and year of that appearing on the cover page of the Tender Document. c) Day means calendar day and month means calendar month. d) KEBS wherever appearing means the Kenya Bureau of Standards or its successor(s) and assign(s) where the context so admit. e) PPOA wherever appearing means The Public Procurement Oversight Authority or its successor(s) and assign(s) where the context so admits. f) Reference to the Tender or the Tender Document includes its appendices and documents mentioned hereunder and any reference to this Tender or to any other document includes a reference to the other document as varied supplemented and/or replaced in any manner from time to time. g) KPLC means The Kenya Power and Lighting Company Limited or its successor(s) and assign(s) where the context so admits (hereinafter abbreviated as KPLC). h) The Tenderer means the person(s) submitting its Tender for the supply, installation and commissioning (where applicable) of the goods in response to the Invitation to Tender. i) Where there are two or more persons included in the expression the Tenderer, any act, default or omission by the Tenderer shall be deemed to be an act, default or omission by any one or more of such persons. j) Words importing the masculine gender only, include the feminine gender or (as the case may be) the neutral gender. k) Words importing the singular number only include the plural number and vice-versa and where there are two or more persons included in the expression the Tenderer the covenants, agreements and obligations expressed to be made or performed by the Tenderer shall be deemed to be made or performed by such persons jointly and severally.

10 10 2. Eligibility and Qualification Requirements 2.1 This Invitation to Tender is open to all Tenderers eligible as described in the Appendix to Instructions to Tenderers. Successful Tenderers shall supply the goods, install and commission in accordance with this Tender and the ensuing contract. 2.2 Notwithstanding any other provisions of this Tender, the following are not eligible to participate in the Tender:- a) KPLC s employees, its Board or any of its committee members. b) Any Minister or Assistant Minister of the Government of the Republic of Kenya (GoK). c) Any public servant of GoK. d) Any member of a Board or Committee or any department of GoK. e) Any person appointed to any position by the President of Kenya. f) Any person appointed to any position by any Minister of GoK. 2.3 For the purposes of this clause, any relative i.e. spouse(s) and child(ren) of any person mentioned in sub-clause is also ineligible to participate in the Tender. In addition, a Minister shall include the President, Vice-President or the Attorney General of GoK. 2.4 Tenderers shall provide the qualification information statement that the Tenderer (including all members of a joint venture and subcontractors) is not associated, or have been associated in the past, directly or indirectly, with a firm or any of its affiliates which have been engaged by KPLC to provide consulting services for the preparation of the design, specifications, and other documents to be used for the procurement of the goods under this Invitation to Tender. 2.5 Tenderers shall not be under declarations of ineligibility for corrupt, fraudulent practices and are not amongst persons mentioned in sub-clauses and above. 2.6 Tenderers who are not under these declarations shall complete the Declaration Form strictly in the form and content as prescribed at Section XIII. 2.7 Those that are under the Declaration for corrupt and fraudulent practices whether currently or in the past shall not complete the Form. They will submit a suitable Form giving details, the nature and present status of their circumstances. 2.8 To be qualified for award of Contract, the Tenderer shall provide evidence satisfactory to the Employer of their eligibility under Sub clause 2.1 above and of their capability and adequacy of resources to effectively carry out the subject Contract. To this end, the Tenderer shall be required to update the following information already submitted during prequalification: (a) Details of experience and past performance of the Tenderer on the works of a similar nature within the past five years and details of current work on hand and other contractual commitments. Completion certificates to be attached as prove that the work has been carried out to completion. (b) The qualifications and experience of key personnel proposed for administration and execution of the contract, both on and off site.

11 11 (c) Major items of construction plant and equipment proposed for use in carrying out the Contract. Only reliable plant in good working order and suitable for the work required of it shall be shown on this schedule. The Tenderer will also indicate on this schedule when each item will be available on the Works. Included also should be a schedule of plant, equipment and material to be imported for the purpose of the Contract, giving details of make, type, origin and CIF value as appropriate. (d) Details of subcontractors to whom it is proposed to sublet any portion of the Contract and for whom authority will be requested for such subletting in accordance with clause 4 of the Conditions of Contract. (e) A draft Program of Works in the form of a bar chart and Schedule of Payment which shall form part of the Contract if the Tender is accepted. Any change in the Program or Schedule shall be subjected to the approval of the Engineer. (f) Details of any current litigation or arbitration proceedings in which the Tenderer is involved as one of the parties. 2.9 Joint Ventures Tenders submitted by a joint venture of two or more firms as partners shall comply with the following requirements: (a) The Tender, and in case of a successful Tender, the Form of Agreement, shall be signed so as to be legally binding on all partners. (b) One of the partners shall be nominated as being in charge; and this authorization shall be evidenced by submitting a power of attorney signed by legally authorized signatories of all the partners. (c) The partner in charge shall be authorized to incur liabilities and receive instructions for and on behalf of any and all partners of the joint venture and the entire execution of the Contract including payment shall be done exclusively with the partner in charge. (d) All partners of the joint venture shall be liable jointly and severally for the execution of the Contract in accordance with the Contract terms, and a relevant statement to this effect shall be included in the authorization mentioned under (b) above as well as in the Form of Tender and the Form of Agreement (in case of a successful Tender). (e) A copy of the agreement entered into by the joint venture partners shall be submitted with the Tender To quality for contract awards, the Tenderer shall have the following: a) Necessary qualifications, capability experience, services, equipment and facilities to provide what is being procured. b) Legal capacity to enter into a contract for procurement.

12 12 c) Shall not be insolvent, in receivership, bankrupt or in the process of being wound up and is not the subject of legal proceedings relating to the foregoing. d) Shall not be debarred from participating in public procurement. 3. Cost of Tendering 3.1 The Tenderer shall bear all costs associated with the preparation and submission of his Tender and the Employer will in no case be responsible or liable for those costs, regardless of the conduct or outcome of the Tendering process. 3.2 The price to be charged for the Tender Document shall be as indicated in the Invitation to Tender but in any case not exceeding KSh 5,000/=. 3.3 KPLC shall allow the Tenderer to view the Tender document free of charge before purchase. 4. Site Visit 4.1 The Tenderer is advised to visit and examine the Site and its surroundings and obtain for himself on his own responsibility, all information that may be necessary for preparing the Tender and entering into a contract. The costs of visiting the Site shall be the Tenderer s own responsibility. 4.2 The Tenderer and any of his personnel or agents will be granted permission by the Employer to enter upon premises and lands for the purpose of such inspection, but only upon the express condition that the Tenderer, his personnel or agents, will release and indemnify the Employer from and against all liability in respect of, and will be responsible for personal injury (whether fatal or otherwise), loss of or damage to property and any other loss, damage, costs and expenses however caused, which but for the exercise of such permission, would not have arisen. 4.3 The Employer shall organize a site visit at a date to be notified. A representative of the Employer will be available to meet the intending Tenderers at the Site. 4.4 Tenderers must provide their own transport. The representative will not be available at any other time for site inspection visits. 4.5 Each Tenderer shall complete the Certificate of Tenderer s Visit to the Site, whether he in fact visits the Site at the time of the organized site visit or by himself at some other time. 5. Tender Documents TENDER DOCUMENTS 5.1 The Tender documents comprise the documents listed herebelow and should be read together with any Addenda issued in accordance with Clause 7 of these instructions to Tenderers. a) Invitation to Tender b) Tender Submission Checklist c) Instructions to Tenderers d) Appendix to Instructions to Tenderers

13 13 e) Schedule of Requirements f) Price Schedule for Goods g) Summary of the Evaluation Process h) General Conditions of Contract i) Special Conditions of Contract j) Tender Form k) Confidential Business Questionnaire Form l) Tender Security Form m) Manufacturer s Authorization Form n) Declaration Form o) Contract Form p) Performance Security Form q) Technical Specifications (i) General Requirements (ii) Detailed Technical Specifications 5.2 The Tenderer is expected to examine carefully all instructions, conditions, forms, terms, specifications and drawings in the Tender documents. Failure to comply with the requirements for Tender submission will be at the Tenderer s own risk. Pursuant to clause 22 of Instructions to Tenderers, Tenders which are not substantially responsive to the requirements of the Tender documents will be rejected. 5.3 All recipients of the documents for the proposed Contract for the purpose of submitting a Tender (whether they submit a Tender or not) shall treat the details of the documents as private and confidential. 6. Clarification of Tenders 6.1 A prospective Tenderer requiring any clarification of the Tender Document may notify the Procurement Manager in writing or by post at KPLC s address indicated in the Invitation to Tender. KPLC will respond in writing to any request for clarification of the Tender documents, which it receives not later than seven (7) days prior to the deadline for the submission of Tenders, prescribed by KPLC. Written copies of KPLC s response (including an explanation of the query but without identifying the source of inquiry) will be sent to all prospective Tenderers that have duly received the Tender Document. 6.2 Clarification of Tenders shall be requested by the Tenderer to be received by KPLC not later than 7 days prior to the deadline for submission of Tenders. 6.3 KPLC shall reply to any clarifications sought by the Tenderer within 3 days of receiving the request to enable the Tenderer to make timely submission of its Tender.

14 If a prospective Tenderer sends an inquiry after the stated days or the inquiry is received by KPLC after the stated days, KPLC shall have the option of responding to the inquiry and extension of the date of submission of Tenders or ignoring it. 7. Amendment of Tender Documents 7.1 At any time prior to the deadline for submission of Tenders, KPLC, for any reason, whether at its own initiative or in response to a clarification requested by a prospective Tenderer, may modify the Tender documents by amendment. 7.2 All prospective Tenderers that have received the Tender Documents will be notified of the amendment(s) (hereinafter referred to or otherwise known as addendum) in writing and will be binding on them. 7.3 In order to allow prospective Tenderers reasonable time in which to take the Addendum into account in preparing their Tenders, the Employer may, at his discretion, extend the deadline for the submission of Tenders. 8. Language of Tender PREPARATION OF TENDERS 8.1 The Tender and all correspondence and documents relating to the Tender exchanged between the Tenderer and the Employer shall be written in the English language. Supporting documents and printed literature furnished by the Tenderer with the Tender may be in another language provided they are accompanied by an appropriate translation of pertinent passages in the above stated language. For the purpose of interpretation of the Tender, the English language shall prevail. The English translation shall be on the Tenderer s letterhead and shall be signed by the duly authorized signatory signing the Tender and stamped with the Tenderer s stamp. 9. Documents Comprising the Tender 9.1 The Tender to be prepared by the Tenderer shall comprise: a) The form of Tender and appendix thereto. b) A Tender security. c) The priced Bill of Quantity and Schedule. d) The information on eligibility and qualification. e) Any other materials required to be completed and submitted in accordance with the instructions to Tenderers. 9.2 The Forms, Bills of Quantities and Schedules provided in the Tender documents shall be used without exception (subject to extensions of the schedules in the same format and to the provisions of clause 13.2 regarding the alternative forms of Tender Surety).

15 Tender Prices 10.1 All the insertions made by the Tenderer shall be made in INK and the Tenderer shall clearly form the figures. The relevant space in the Form of Tender and Bills of Quantities shall be completed accordingly without interlineations or erasures except those necessary to correct errors made by the Tenderer in which case the erasures and interlineations shall be initialed by the person or persons signing the Tender A price or rate shall be inserted by the Tenderer for every item in the Bills of Quantities whether the quantities are stated or not items against which no rate or price is entered by the Tenderer will not be paid for by the Employer when executed and shall be deemed covered by the rates for other items and prices in the Bills of Quantities The prices and unit rates in the Bills of Quantities are to be the full [all-inclusive] value of the work described under the items, including all costs and expenses which may be necessary and all general risks, liabilities and obligations set forth or implied in the documents on which the Tender is based. All duties and taxes and other levies payable by the Contractor under the Contract or for any other cause prior to the deadline for the submission of Tenders, shall be included in the rates and prices and the total Tender prices submitted by the Tenderer Each price or unit rate inserted in the Bills of Quantities should be a realistic estimate for completing the activity or activities described under that particular item and the Tenderer is advised against inserting a price or rate against any item contrary to this instruction Every rate entered in the Bills of Quantities, whether or not such rate be associated with a quantity, shall form part of the Contract. The Employer shall have the right to call for any item of work contained in the Bills of Quantities, and such items of work to be paid for at the rate entered by the Tenderer and it is the intention of the Employer to take full advantage of unbalanced low rates Unless otherwise specified the Tenderer must enter the amounts representing 10% of the sub-total of the summary of the Bills of Quantities for Contingencies and Variation of Prices [V.O.P.] payments in the summary sheet and add them to the sub-total to arrive at the Tender amount The Tenderer shall furnish with his Tender written confirmation from his suppliers or manufacturers of unit rates for the supply of items listed in the Conditions of Contract clause 47 where appropriate The rates and prices quoted by the Tenderer are subject to adjustment during the performance of the Contract only in accordance with the provisions of the Conditions of Contract. The Tenderer shall complete the schedule of basic rates and shall submit with his Tender such other supporting information as required under clause 47 of the Conditions of Contract Part II. 11. Tender Form 11.1 The Tenderer shall complete and sign the Tender Form, the appropriate Price Schedule and all other documents furnished in the Tender Document, indicating the goods to be supplied, a brief

16 16 description of the goods, their country of origin, quantity, and prices amongst other information required. 12. Currencies of Tender and Payment 12.1 Tenders shall be priced in Kenya Shillings and the Tender sum shall be in Kenya Shillings or in another freely convertible currency in Kenya. The currency quoted must be indicated clearly on the Price Schedule of the works The exchange rate to be used for currency conversion shall be the Central Bank of Kenya selling rate ruling on the Tender closing date. 13. Tender Validity 13.1 The Tender shall remain valid and open for acceptance for a period of ninety (90) days from the specified date of Tender opening or from the extended date of Tender opening (in accordance with clause 7.4 here above) whichever is the later. A Tender that is valid for a shorter period shall be rejected by KPLC as non-responsive In exceptional circumstances prior to expiry of the original Tender validity period, the Employer may request the Tenderer for a specified extension of the period of validity. The request and the responses thereto shall be made in writing or by cable, telex or facsimile. A Tenderer may refuse the request without forfeiting his Tender Surety. A Tenderer agreeing to the request will not be required nor permitted to modify his Tender, but will be required to extend the validity of his Tender Surety correspondingly. 14. Tender Security 14.1 The Tenderer shall furnish, as part of its Tender, a Tender security for the amount specified in the Appendix to Instructions to Tenderers The Tender security shall be either one or a combination of the following:- a) An original Bank Guarantee that is strictly in the form and content as prescribed in the Tender Security Form (Bank Guarantee) in the Tender Document. b) Confirmed Standby Letters of Credit (LC). All costs, expenses and charges levied by all banks party to the LC including confirmation charges shall be prepaid by the Tenderer. The LC must contain all the mandatory conditions of payment to KPLC as prescribed in the Tender Security (Letters of Credit) provided in the Tender Document The Tender security is required to protect KPLC against the risk of the Tenderer s conduct which would warrant the security s forfeiture pursuant to clause below.

17 The Tender Security shall be denominated in Kenya Shillings or in another freely convertible currency, and shall be issued by a commercial bank licensed by the Central Bank of Kenya. The bank must be located in Kenya The Tender Security shall be valid for thirty (30) days beyond the validity of the Tender KPLC shall seek authentication of the Tender Security from the issuing bank. It is the responsibility of the Tenderer to sensitize its issuing bank on the need to respond directly and expeditiously to queries from KPLC. The period for response shall not exceed five (5) days from the date of KPLC s query. Should there be no conclusive response by the bank within this period, such Tenderer s Tender Security may be deemed as invalid and the bid rejected Any Tender not secured in accordance with this clause will be rejected by KPLC as non-responsive, pursuant to clause The unsuccessful Tenderer s Tender Security will be released as promptly as possible, in any of the following circumstances: - a) the procurement proceedings are terminated b) KPLC determines that none of the submitted Tenders is responsive c) a contract for the procurement is entered into d) the Tenderer does not qualify for Financial Evaluation in accordance with clause The successful Tenderer s Tender Security will be released upon the successful Tenderer s signing the contract, pursuant to clause 35 and furnishing an authentic Performance Security, pursuant to clause The Tender Security shall be forfeited a) if the Tenderer withdraws its Tender after the deadline for submitting Tenders but before the expiry of the period during which the Tenders must remain valid b) if the Tenderer rejects a correction of an arithmetic error c) if the Tenderer fails to enter into a written contract in accordance with clause 35. d) if the successful Tenderer fails to furnish the performance security in accordance with clause 37 e) if the Tenderer fails to extend the validity of the Tender security where KPLC has extended the Tender validity period in accordance with clause No Alternative Offers 15.1 The Tenderer shall submit an offer which complies fully with the requirements of the Tender documents unless otherwise provided for in the appendix.

18 Only one Tender may be submitted by each Tenderer either by himself or as partner in a joint venture The Tenderer shall not attach any conditions of his own to his Tender. The Tender price must be based on the Tender documents. The Tenderer is not required to present alternative construction options and he shall use without exception, the Bills of Quantities as provided, with the amendments as notified in Tender notices, if any, for the calculation of his Tender price Any Tenderer who fails to comply with this clause will be disqualified. 16. Pre-Tender Meeting 16.1 If a pre-tender meeting is convened the Tenderer s designated representative is invited to attend a pre-tender meeting, which if convened, will take place at the venue and time stated in the Invitation to Tender. 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 Tenderer is requested as far as possible to submit any questions in writing or by cable, to reach the Employer not later than seven days before the meeting. It may not be practicable at the meeting to answer questions received late, but questions and responses will be transmitted in accordance with the following: (a) Minutes of the meeting, including the text of the questions raised and the responses given together with any responses prepared after the meeting will be transmitted without delay to all purchasers of the Tender documents. Any modification of the Tender documents listed in Clause 9 which may become necessary as a result of the pre-tender meeting shall be made by the Employer exclusively through the issue of a Tender notice pursuant to Clause 7 and not through the minutes of the pre-tender meeting. (b) Non-attendance at the pre-tender meeting will not be cause for disqualification of a bidder. 17. Number of Sets and Tender Format 17.1 The Tenderer shall prepare three complete sets of its Tender, identifying and clearly marking the ORIGINAL TENDER, COPY 1 OF TENDER, and COPY 2 OF TENDER as appropriate. Each set shall be properly bound. The copies shall be a replica of the Original. Each copy will be deemed to contain the same information as the Original The Tender shall be bound and divided clearly in descending order as listed in the Tender Submission Checklist. The divisions are for clear identification and marking of the respective documents or information that are serially numbered in the Checklist The order and arrangement as indicated in the Tender Submission Checklist will be considered as the Tender Formats.

19 Any Tender not prepared and signed in accordance with this clause, in particular sub-clauses 17.1 shall be rejected by KPLC as non-responsive, pursuant to clause Preparation and Signing of the Tender SUBMISSION OF TENDERS 18.1 The Original and all copies of the Tender shall be typed or written in indelible ink. They shall be signed by the Tenderer or a person or persons duly authorized to bind the Tenderer to the contract The authorization shall be indicated by a written Power of Attorney granted by the Tenderer to the authorized person before any of the following persons:- a) For local Tenderers, a Commissioner of Oaths or a Notary Public or a Magistrate of the Kenyan Judiciary. b) For foreign Tenderers, a Notary Public in the country of the Tenderer. In either case above, the Power of Attorney shall accompany the Tender All pages of the Tender, including un-amended printed literature, shall be initialed by the person or persons signing the Tender and serially numbered The Tender shall have no interlineations, erasures, or overwriting except as necessary to correct errors made by the Tenderer, in which case such corrections shall be initialled by the person or persons signing the Tender KPLC will assume no responsibility whatsoever for the Tenderer s failure to comply or observe with the entire contents of this clause Any Tender not prepared and signed in accordance with this clause may be rejected by KPLC as non-responsive, pursuant to clause Sealing and Outer Marking of Tenders 19.1 The Tenderer shall seal the Original and each Copy of the Tender in separate envelopes or packages, duly marking the envelopes or packages as ORIGINAL, COPY 1 OF TENDER and COPY 2 OF TENDER. The envelopes or packages shall then be sealed in outer envelopes or packages The inner and outer envelopes or packages shall - a) be addressed to KPLC at the address given in the Invitation to Tender, b) bear the Tender number and name as per the Invitation to Tender and the words, DO NOT OPEN BEFORE. as specified in the Invitation to Tender.

20 All inner envelopes or packages shall also indicate the name and full physical, telephone, , facsimile and postal contacts of the Tenderer to enable the Tender to be returned unopened in circumstances necessitating such return including where Tenders are received late, procurement proceedings are terminated before Tenders are opened If the envelopes or packages are not sealed and marked as required by this clause, KPLC will assume no responsibility whatsoever for the Tender s misplacement or premature opening. A Tender opened prematurely for this cause will be rejected by KPLC and promptly returned to the Tenderer. 20. Deadline for Submission of Tenders 20.1 Tenders must be received by KPLC by the time and at the place specified in the Invitation to Tender KPLC may, at its discretion, extend this deadline for submission of Tenders by amending the Tender documents in accordance with clause 7, in which case all rights and obligations of KPLC and the Tenderer s previously subject to the initial deadline, will therefore be subject to the deadline as extended Proof of posting will not be accepted as proof of delivery and any Tender delivered after the above stipulated time, from whatever cause arising will not be considered Any Tender received by KPLC after the prescribed deadline for submission of Tender will be returned unopened to the Tenderer. 21. Modification and Withdrawal of Tenders 21.1 The Tenderer may modify or withdraw its Tender after it has submitted it, provided that written notice of the modification, including substitution or withdrawal of the Tender is received by KPLC prior to the deadline prescribed for submission of Tenders The Tenderer s modification or withdrawal notice shall be prepared, sealed, marked, and dispatched in accordance with the provisions of clauses 18, 19 and 20. A withdrawal notice may also be sent by facsimile, electronic mail, cable or telex but followed by an original signed confirmation copy, postmarked not later than the deadline for submission of Tenders No Tender may be modified after the deadline for submission of Tenders No Tender may be withdrawn in the interval between the deadline for submission of Tenders and the expiration of the period during which the Tender must remain valid. Any withdrawal of a Tender during this interval shall result in forfeiture of the Tenderer s Tender Security.

21 Tender Opening TENDER OPENING AND EVALUATION 22.1 The Employer will open the Tenders in the presence of the Tenderers representatives who choose to attend at the time and location indicated in the Letter of Invitation to Tender. The Tenderers representatives who are present shall sign a register evidencing their attendance Tenders for which an acceptable notice of withdrawal has been submitted, pursuant to clause 21, will not be opened. The Employer will examine the Tenders to determine whether they are complete, whether the requisite Tender Sureties have been furnished, whether the documents have been properly signed and whether the Tenders are generally in order At the Tender opening, the Employer will announce the Tenderer s names, total Tender price, Tender price modifications and Tender withdrawals, if any, the presence of the requisite Tender Surety and such other details as the Employer, at his discretion, may consider appropriate. No Tender shall be rejected at the Tender opening except for late Tenders The Employer shall prepare a Tender opening register and minutes of the Tender opening including the information disclosed to those present Tenders not opened and read out a Tender opening shall not be considered further for evaluation, irrespective of the circumstances. 23. Process to be Confidential 23.1 After the public opening of Tenders, information relating to the examination, clarification, evaluation and comparisons of Tenders and recommendations concerning the award of Contract shall not be disclosed to Tenderers or other persons not officially concerned with such process until the award of Contract is announced Conclusion of that process shall be deemed to have occurred, at the latest, by the date and time KPLC announces to qualified bidder(s) the date and time for the second opening of the Tenders i.e. of the detailed Financial sets. In any event, official disclosure by KPLC of any information upon conclusion of that process shall only be to the unsuccessful bidders and may contain only the information permissible by law in summary form Any effort by a Tenderer to influence the Employer in the process of examination, evaluation and comparison of Tenders and decisions concerning award of Contract may result in the rejection of the Tenderer s Tender. 24 Clarification of Tenders and Contacting KPLC 24.1 To assist in the examination, evaluation and comparison of Tenders KPLC may, at its discretion, ask the Tenderer for a clarification of its Tender. The request for clarification and the response shall

22 22 be in writing, and no change in the prices or substance of the Tender shall be sought, offered, or permitted The Tenderer is required to provide timely clarification or substantiation of the information that is essential for effective evaluation of its qualifications. It is the responsibility of the Tenderer to provide in writing the clarification or substantiation which should reach KPLC within five (5) days from the date of KPLC s query. Such writing may include by electronic mail, facsimile or postal mail. Should there be no conclusive response within this period, it shall result in the Tenderer s disqualification Save as is provided in this clause and clause 23 above, no Tenderer shall contact KPLC on any matter related to its Tender, from the time of the Tender openings to the time the contract is awarded Any effort by a Tenderer to influence KPLC in its decisions on Tender evaluation, Tender comparison, Tender recommendation(s) or contract award may result in the rejection of the Tenderer s Tender. 25 Preliminary Tender Evaluation 25.1 Prior to the detailed Technical and Financial evaluation, KPLC will determine the substantial responsiveness of each Tender. For purposes of this Tender, a substantially responsive Tender is one that conforms to the requirements of Preliminary Evaluation. KPLC s determination of a Tender s responsiveness is to be based on the contents of the Tender itself without recourse to extrinsic evidence KPLC will examine the Tenders to determine whether they conform to the Preliminary Evaluation Criteria set out in the Summary of Evaluation Process Notwithstanding the contents of the foregoing sub-clauses, if a Tender is not substantially responsive, it will be rejected at the earliest stage of evaluation by KPLC and cannot subsequently be made responsive by the Tenderer by correction of any non conformity. 26. Minor Deviations, Errors or Oversights 26.1 KPLC may waive any minor deviation in a Tender that does not materially depart from the requirements of the goods and or services set out in the Tender Document Such minor deviation - (a) shall be quantified to the extent possible, (b) shall be taken into account in the evaluation process, and,

23 23 (c) shall be applied uniformly and consistently to all qualified Tenders duly received by KPLC KPLC may waive errors and oversights that can be corrected without affecting the substance of the Tender. 27. Technical Evaluation of Tenders 27.1 KPLC will evaluate and compare the Tenders that have been determined to be substantially responsive in compliance to the Technical requirements set out in the Tender Document For Tenders that do not qualify past the technical evaluation stage, financial evaluation will not be conducted. 28. Financial Evaluation of Tenders 28.1 Upon completion of the preliminary and technical evaluation, KPLC shall conduct a Financial Evaluation and comparison as set out in the Summary of Evaluation Process Where other currencies are used, KPLC will convert those currencies to the same currency using the selling exchange rate ruling on the date of Tender closing provided by the Central Bank of Kenya Arithmetical errors will be rectified on the following basis - if there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and quantity, the unit price shall prevail, and the total price shall be corrected. If there is a discrepancy between words and figures, the amount in words will prevail The Tenderer will be promptly notified of the correction of the arithmetical error(s). If the Tenderer does not accept the correction of the error(s), its Tender will stand rejected, and its Tender Security automatically forfeited. 29. Tender Evaluation Period 29.1 The Tender evaluation committee(s) shall evaluate the Tender within thirty five (35) days of the validity period from the date of the first opening of the Tender. 30. Debarment of a Tenderer 30.1 A Tenderer who gives false information in the Tender about its qualification or who refuses to enter into a contract after notification of contract award shall be considered for debarment from participating in future public procurement.

24 Confirmation of Qualification for Award 31.1 KPLC may confirm to its satisfaction whether the Tenderer that is selected as having submitted the lowest evaluated responsive Tender is qualified to perform the contract satisfactorily The confirmation will take into account the Tenderer s financial, technical, and production capabilities. It will be based upon an examination of the documentary evidence of the Tenderer s qualifications submitted by the Tenderer, as well as confirmation of such other information as KPLC deems necessary and appropriate. This may include factory and other facilities inspection and audits An affirmative confirmation will be a prerequisite for award of the contract to the Tenderer. A negative confirmation will result in rejection of the Tenderer s Tender, in which event KPLC will proceed to the next lowest evaluated responsive Tender to make a similar confirmation of that Tenderer s capabilities to perform satisfactorily. 32. Award of Contract AWARD OF CONTRACT 32.1 KPLC will award the contract to the successful Tenderer whose Tender has been determined to be substantially responsive, technically compliant and has been determined to be the lowest evaluated Tender, and further, where deemed necessary, that the Tenderer is confirmed to be qualified to perform the contract satisfactorily Award will be done as indicated in the Appendix to Instructions to Tenderers. 33. Termination of Procurement Proceedings 33.1 KPLC may at any time terminate procurement proceedings before entering into a contract and shall not be liable to any person for the termination KPLC shall give prompt notice of the termination to the Tenderers, and, on request from any Tenderer, give its reasons for termination within fourteen (14) days of such request. 34. Notification of Award 34.1 Prior to the expiration of the period of Tender validity, KPLC shall notify the successful Tenderer in writing that its Tender has been accepted The notification of award shall not constitute the formation of the contract until one is finally signed by both parties.

25 Simultaneously, and without prejudice to the contents of clause 23, on issuance of Notification of Award to the successful Tenderer, KPLC shall notify each unsuccessful Tenderer A notification of the Tender outcome does not reduce the validity period for any Tender security whether the Tenderer is successful or not, except where such Tender security is officially released to the Bank and/or the Tenderer and such Bank discharged of all its obligations by KPLC prior to the expiry of its stated validity period. 35. Signing of the Contract 35.1 At the same time as KPLC notifies the successful Tenderer that its Tender has been accepted, KPLC will send the Tenderer the Contract Agreement provided in the Tender Document together with any other necessary documents incorporating all agreements between the Parties Within fourteen (14) days of the date of notification of award, the successful Tenderer shall only sign the Contract Form and all the documents specified in that Form and return them to KPLC within that period of fourteen (14) days KPLC shall sign and date the Contract in the period between not earlier than fourteen (14) days from the date of notification of contract award and not later than thirty (30) days after expiry of Tender validity. Further, KPLC shall not sign the contract until and unless the authentic performance security is received in accordance with clause Failure of the successful Tenderer to sign the Contract, the award shall be annulled and its Tender security forfeited in which event KPLC shall notify the next lowest evaluated Tenderer that its Tender has been accepted Clause 35 together with the provisions of this clause 35 will apply with necessary modifications with respect to the Tenderer notified under sub-clause Performance Security 36.1 Within twenty one (21) days of the date of notification of award from KPLC, the successful Tenderer shall furnish KPLC with a Performance Security which shall be either one or a combination of the following: a) An original Bank Guarantee that is strictly in the form and content as prescribed in the Performance Security Form (Bank Guarantee) in the Tender Document. b) Confirmed Standby Letters of Credit (LC). All costs, expenses and charges levied by all banks party to the LC including confirmation charges shall be prepaid by the successful

26 26 Tenderer. Certain mandatory conditions of the LC shall be as prescribed in the Performance Security Form (LC) in the Tender Document The Performance Security shall be issued by a commercial bank licensed by the Central Bank of Kenya. The bank must be located in Kenya The successful Tenderer shall furnish a Performance Security being the sum of ten percent (10%) of the contract price KPLC shall seek authentication of the Performance Security from the issuing bank. It is the responsibility of the successful Tenderer to sensitize its issuing bank on the need to respond directly and expeditiously to queries from KPLC. The period for response shall not exceed five (5) days from the date of KPLC s query. Should there be no conclusive response by the Bank within this period, such successful Tenderer s Performance Security may be deemed as invalid Failure of the successful Tenderer to furnish an authentic Performance Security, the award shall be annulled and the Tender Security forfeited, in which event KPLC may notify the next lowest evaluated Tenderer that its Tender has been accepted Clause 34, 35 together with the provisions of this clause 36 will apply with necessary modifications, and as far as circumstances permit, with respect to the Tenderer notified under subclause Advance Payment 37.1 An advance payment, if approved by the Employer, shall be made under the Contract, if requested by the Contractor, in accordance with clause 33.1 of the Conditions of Contract. The Advance Payment Guarantee shall be denominated in the proportion and currencies named in the form of foreign currency requirements. For each currency, a separate guarantee shall be issued. The guarantee shall be issued by a bank located in the Republic of Kenya, or a foreign bank through a correspondent bank located in the Republic of Kenya, in either case subject to the approval of the Employer. 38. Corrupt or Fraudulent Practices 38.1 KPLC requires that Tenderers observe the highest standard of ethics during the procurement process and execution of contracts. When used in the present Regulations, the following terms are defined as follows: - a) Corrupt practice means the offering, giving, receiving or soliciting of anything of value to influence the action of public official in the procurement process or in contract execution; b) Fraudulent practice means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of KPLC, and includes

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