REPUBLIC OF KENYA

PRE-QUALIFICATION FOR
PROVISION OF LEGAL AND CONSULTANCY SERVICES

IEBC/PRQ/01/2020-2021

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Contents
INVITATION TO APPLY FOR PREQUALIFICATION........................................................................................3

PART 1 - APPLICATION PROCEDURES...............................................................................................................4

SECTION I - INSTRUCTIONS TO APPLICANTS (ITA)......................................................................................5

SECTION II - PREQUALIFICATION DATA SHEET (PDS)...............................................................................15

SECTION III - QUALIFICATION CRITERIA AND REQUIREMENTS..........................................................17

SECTION IV- APPLICATION FORMS..................................................................................................................22

PART 2 - WORKS, GOODS OR NON - CONSULTING SERVICES REQUIREMENTS................................37

SECTION V - SCOPE OF WORKS, Goods or Non-Consulting Services required.............................................38

FRAUD AND CORRUPTION...................................................................................................................................42
SELF-DECLARATION FORMS..............................................................................................................................45
DECLARATION AND COMMITMENT TO THE CODE OF ETHICS......................................................47

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INVITATION TO APPLY FOR PREQUALIFICATION

Name of Contract: Pre-Qualification for Provision of Legal and Consultancy Services

Prequalification Reference No.: IEBC/PRQ/01/2020-2021

31st May, 2021

1. The Independent Electoral and Boundaries Commission (IEBC) intends to prequalify

Service Providers for Provision of Legal and Consultancy Services for the period ending
June, 2023 in the following categories:
Category 1: General Category

Category 2: Disadvantaged Groups

2. Those already pre-qualified need not apply

3. It is expected that the Invitation to Tender will be made in April, 2021. Tendering will be
conducted through National Competitive procedures using a standardized tender document
and will be open to all legal firms under General and AGPO categories who are duly
registered.

4. Interested Eligible candidates may obtain further information from and inspect the tender
document at the IEBC Procurement Anniversary Towers Fifth Floor Room No. 525 during
normal working hours, Monday to Friday, 8.00a.m. - 1:00 p.m. and 2.00p.m. - 4.30p.m.

5. Prequalification Document may be viewed and downloaded for free from the
www.iebc.or.ke or www.tenders.go.ke. Applicants who download the Prequalification
Document must forward their particulars immediately to procurement@iebc.or.ke facilitate
any further clarification or addendum.

6. Completed should be applications for prequalification enclosed in plain sealed envelopes,

marked with prequalification reference number and addressed to

The Ag. Chief Executive Officer/Commission Secretary

Independent Electoral and Boundaries Commission (IEBC)
Anniversary Towers, University Way, Fifth Floor P O Box
45371-00100 Nairobi.
Website: www.iebc.or.ke

and be deposited in the Tender Box at the Fifth Floor reception, Anniversary Towers, so as to be
received on or before Monday14th June, 2021 at 11:00 am East African Time

7. Received bids will be opened immediately after closing time. Applicants who wish to attend
the bid opening should share their emails so that the Commission may share a link through
which the bidders can follow the proceedings.

8. Late applications are reliable to be rejected.

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PART 1 - APPLICATION PROCEDURES
SECTION I - INSTRUCTIONS TO APPLICANTS (ITA)

A. General

1. Scope of Application

1.1 The name of the Procuring Entity inviting for applications is defined in the PDS. The particular
type of contract (works, goods or Non-Consulting Services required) and its name and
description of the contract(s) and its reference number are defined in the PDS. If the scope of
contract so defined is in multiple contracts, it will be specified in the PDS if prequalification
will be based on individual contracts or multiple contracts. The Full scope of Works or Goods
or Non-Consulting Services are described in Section V (Scope of Works or goods contract).

2. Source of Funds to be specified in the PDS, if deemed necessary.

3. Fraud and Corruption

3.1 The Government of Kenya requires compliance with its Anti-Corruption laws and its
prevailing sanctions policies and procedures.

3.2 In further pursuance of this policy, Applicants shall permit and shall cause their agents (where
declared or not), subcontractors, sub consultants, service providers, suppliers, and their
personnel, to permit the Public Procurement Regulatory Authority (PPRA) to inspect all
accounts, records and other documents relating to any initial selection process, prequalification
process, tender submission(incase prequalified),proposal submission, and contract performance
(in the case of award), and to have them audited by auditors appointed by the PPRA.

4 Collusive practices

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

5 Eligible Applicants

5.1 Applicants shall meet the eligibility criteria as per this ITA and ITA 5.1and 5.2. An Applicant
may be a firm that is a private entity, a state-owned enterprise or institution subject to ITA 5.9
or any combination of such entities in the form of a joint venture (“JV”) under an existing
agreement or with the intent to enter into such an agreement supported by a letter of intent. In
the case of a joint venture, all members shall be jointly and severally liable for the execution of
the entire Contract in accordance with the Contract terms. The JV shall nominate a
Representative who shall have the authority to conduct all business for and on behalf of any
and all the members of the JV during the prequalification process, tendering (in the event the
JV submits a Tender) and during contract execution (in the event the JV is awarded the
Contract). Members of a joint venture may not also make an individual tender, be a
subcontractor in a separate tender or be part of another joint venture for the purposes of the
same Tender. The maximum number of JV members shall be specified in the PDS.

5.2 Public Officers of the Procuring Entity, their Spouses, Child, Parent, Brothers or Sister. Child,
Parent, Brother or Sister of a Spouse, their business associates or agents and
firms/organizations in which they have a substantial or controlling interest shall not be eligible
to be prequalified. Public Officers with such relatives are also not allowed to participate in any
procurement proceedings.

5.3 A firm may apply for prequalification both individually, and as part of a joint venture, or
participate as a subcontractor. If prequalified, it will not be permitted to tender for the same
contract both as an individual firm and as a part of the joint venture or as a subcontractor.
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 However, a firm may participate as a subcontractor in more than one Tender, but only in that
capacity. Tenders submitted in violation of this procedure will be rejected.

5.4 A firm and any of its affiliates (that directly or indirectly control, are controlled by or are under
common control with that firm) may submit its application for prequalification either
individually, as joint venture or as a subcontractor among them for the same contract.
However, if prequalified, only one prequalified Applicant will be allowed to tender for the. All
Tenders submitted in violation of this procedure will be rejected.

5.5 An Applicant may have the nationality of any country, subject to the restrictions pursuant to
ITA 5.1 and 5.2. An Applicant shall be deemed to have the nationality of a country if the
Applicant is constituted, incorporated or registered in and operates in conformity with the
provisions of the laws of that country, as evidenced by its articles of incorporation (or
equivalent documents of constitution or association) and its registration documents, as the case
may be. sub-contractors or suppliers for any part of the Contract including related Non-
Consulting Services.

5.6 Applicants shall not have a conflict of interest. Applicants shall be considered to have a
conflict of interest, if they, or any of their affiliates, participated as a consultant in the
preparation of the design or technical specifications or have been hired or proposed to be hired
by the Procuring Entity as Engineer for contract implementation of the contract(s) that are the
subject of this prequalification. In addition, Applicants may be considered to have a conflict of
interest if they have a close business or family relationship with a professional staff of the
Procuring Entity who:
a are directly or indirectly involved in the preparation of the prequalification Document or
Invitation to Tender (ITT), Document or specifications of the Contract, and/or the Tender
evaluation process of such Contract; or
b would be involved in the implementation or supervision of such Contract, unless the conflict
stemming from such relationship has been resolved in a manner acceptable to the Procuring
Entity throughout the prequalification, ITT process and execution of the Contract.

5.7 An Applicant that has been debarred shall be ineligible to be initially selected for, prequalified
for, tender for, propose for, or be awarded a contract during such period of time as the PPRA
shall have determined. The list of debarred firms and individuals is available at
www.ppra.go.ke

5.8 Applicants that are state-owned enterprise or institutions in Kenya may be eligible to
prequalify, compete and be awarded a Contract(s) only if they can establish, in a manner
accept able to the Procuring Entity, that they (i) are legally and financially autonomous (ii)
operate under commercial law, and (iii) are not under supervision of any public entity.

5.9 An Applicant shall not be under sanction of debarment from Tendering by the PPRA as the
result of the execution of a Tender/Proposal–Securing Declaration.

5.10 An Applicant that is a Kenyan firm or citizen shall provide evidence of having fulfilled
his/her tax obligations by producing a current tax clearance certificate or tax exemption
certificate issued by the Kenya Revenue Authority.

5.11 An Applicant shall provide any other such documentary evidence of eligibility satisfactory
to the Procuring Entity, as the Procuring Entity shall reasonably request.

6 Eligibility

6.1 Firms and individuals may be ineligible if they are nationals of ineligible countries as indicated
herein. The countries, persons or entities are in eligible if:
a As a matter of law or official regulations, Kenya prohibits commercial relations with that
country, or

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 b By an act of compliance with a decision of the United Nations Security Council taken under
Chapter VII of the Charter of the United Nations, Kenya prohibits any import of goods or
contracting of works or Non- Consulting Services from that country, or any payments to any
country, person, or entity in that country.

6.2 When the Works, supply of Goods or provision of non-consulting services are implemented a
cross jurisdictional boundary (and more than one country is a Procuring Entity, and is involved
in the procurement), then exclusion of a firm or individual on the basis of ITA 5.1 (a) above by
any country may be applied to that procurement a cross other countries involved, if the
Procuring Entities involved in the procurement so agree.

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

7 Sections of Prequalification Document

7.1 This Prequalification Document consists of parts1 and 2 which comprise all the sections
indicated below, and which should be read in conjunction with any Addendum issued in
accordance with IT A8.

PART 1 - Prequalification Procedures

i) Section I- Instructions to Applicants (ITA)
ii) Section II - Prequalification Data Sheet (PDS)
iii) Section III - Qualification Criteria and Requirements
iv) Section IV- Application Forms

PART 2 - Works, Goods, or Non-Consulting Services Requirements

i) Section VII- Scope of Works, Goods, or Non-Consulting Services

7.2 Unless obtained directly from the Procuring Entity, the Procuring Entity accepts no
responsibility for the completeness of the document, responses to requests for clarification, the
minutes of the pre-Application meeting (if any), or Addenda to the Prequalification Document
in accordance with ITA 8. In case of any discrepancies, documents issued directly by the
Procuring Entity shall prevail.

7.3 The Applicant is expected to examine all instructions, forms, and terms in the Prequalification
Document and to furnish with its Application all information or documentation as is required
by the Prequalification Document.

8 Clarification of Prequalification Documents, site visit(s) and Pre-Application Meeting

8.1 An Applicant requiring any clarification of the Prequalification Document shall contact the
Procuring Entity in writing at the Procuring Entity's address indicated in the PDS. The
Procuring Entity will respond in writing to any request for clarification provided that such
request is received no later than fourteen (14) days prior to the deadline for submission of the
applications. The Procuring Entity shall forward a copy of its response to all prospective
Applicants who have obtained the Prequalification Document directly from the Procuring
Entity, including a description of the inquiry but without identifying its source. If so indicated
in the PDS, the Procuring Entity shall also promptly publish its response at the webpage
identified in the PDS. Should the Procuring Entity deem it necessary to amend the
Prequalification Document as a result of a clarification, it shall do so following the procedure
under ITA 8. And in accordance with the provisions of ITA 17.2.

8.2 The Applicant, at the Applicant's own responsibility and risk, is encouraged to visit and
examine and inspect the Site of the required contracts and obtain all information that may be
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 necessary for preparing the application. The costs of visiting the Site shall be at the Applicant's
own expense. The Procuring Entity shall specify in the PDS if a pre-application meeting will
be held, when and where. The Procuring Entity shall also specify in the PDS if a pre-arranged
Site visit will be held and when. The Applicant's designated representative is invited to attend a
pre- application meeting and a pre-arranged site visit. The purpose of the meetings will be to
clarify issues and to answer questions on any matter that may be raised at that stage.

8.3 The Applicant is requested to submit any questions in writing, to reach the Procuring Entity
not later than the period specified in the PDS before the submission date of applications.

8.4 Minutes of a pre-arranged site visit and those of the pre-application meeting, if applicable,
including the text of the questions asked by Applicants and the responses given, together with
any responses prepared after the meeting, will be transmitted promptly to all Applicants who
have acquired the prequalification documents. Minutes shall not identify the source of the
questions asked.

8.5 The Procuring Entity shall also promptly publish anonymized (no names) Minutes of the pre-
arranged site visit and those of the pre-proposal meeting at the web page identified in the PDS.
Any modification to the Prequalification Documents that may become necessary as a result of
the pre-arranged site visit and those of the pre-application meeting shall be made by the
Procuring Entity exclusively through the issue of an Addendum pursuant to PDS 8 and not
through the minutes of the pre-application meeting. Non-attendance at the pre- arranged site
visit and the pre-tender meeting will not be a cause for disqualification of a Tenderer.
9 Amendment of Prequalification Document

9.1 At any time prior to the deadline for submission of Applications, the Procuring Entity may
amend the Prequalification Document by issuing an Addendum.

9.2 Any Addendum issued shall be part of the Prequalification Document and shall be
communicated in writing to all Applicants who have obtained the Prequalification Document
from the Procuring Entity. The Procuring Entity shall promptly publish the Addendum at the
Procuring Entity's webpage identified in the PDS.

9.3 To give Applicants reasonable time to take an Addendum into account in preparing their
Applications, the Procuring Entity may, at its discretion, extend the deadline for the
submission of Applications in accordance with ITA 17.2.

C. Preparation of Applications

10 Cost of Applications

10.1 The Applicant shall bear all costs associated with the preparation and submission of its
Application. The Procuring Entity will in no case be responsible or liable for those costs,
regardless of the conduct or outcome of the prequalification process.

11 Language of Application

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

12 Documents Comprising the Application

12.1 The Application shall comprise the following:

a. Application Submission Letter, in accordance with ITA 13.1;
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 b. Eligibility: documentary evidence establishing the Applicant's eligibility, in accordance
with ITA 14.1;
c. Qualifications: documentary evidence establishing the Applicant's qualifications, in
accordance with ITA 15; and
d. Any other document required as specified in the PDS.

12.2 The Applicant shall furnish information on commissions and gratuities, if any, paid or to be
paid to agents or any other party relating to this Application.

13 Application Submission Letter

13.1 The Applicant shall complete an Application Submission Letter as provided in Section IV
(Application Forms). This Letter must be completed without any alteration to its format.

14 Documents Establishing the Eligibility of the Applicant

14.1 To establish its eligibility in accordance with ITA 4, the Applicant shall complete the
eligibility declarations in the Application Submission Letter and Forms ELI (eligibility) 1.1
and 1.2, included in Section IV (Application Forms).

15 Documents Establishing the Qualifications of the Applicant

15.1 To establish its qualifications to perform the contract(s) in accordance with Section III,
Qualification Criteria and Requirements, the Applicant shall provide the information
requested in the corresponding Information Sheets included in Section IV (Application
Forms).
15.2 Wherever an Application Form requires an Applicant to state a monetary amount, Applicants
should indicate the Kenya Shilling equivalent using the rate of exchange determined as
follows:
a For construction turnover or financial data required for each Year-Exchange rate
prevailing on the last day of the respective calendar year (in which the amounts for that
year is to be converted).
b Value of single Contract-Exchange rate prevailing on the date of the contract.
15.3 Exchange rates shall be taken from the publicly available source identified in the PDS. Any
error in determining the exchange rates in the Application may be corrected by the Procuring
Entity.

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

15.5 The purpose of the information described in ITT 6.2 above overrides any claims to
confidentiality which an Applicant may have. There can be no circumstances in which it
would be justified for an Applicant to keep information relating to its ownership and control
confidential where it is tendering to undertake public sector work and receive public sector
funds. Thus, confidentiality will not be accepted by the Procuring Entity as a justification for
an Applicant's failure to disclose, or failure to provide required in formation on its ownership
and control.

15.6 The Applicant shall provide further documentary proof, information or authorizations that the
Procuring Entity may request in relation to ownership and control which information on any

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 changes to the information which was provided by the Applicant under ITT 6.3. The
obligations to require this information shall continue for the duration of the procurement
process and contract performance and after completion of the contract, if any change to the
information previously provided may reveal a conflict of interest in relation to the award or
management of the contract.

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

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

15.9 If information submitted by an Applicant pursuant to these requirements, or obtained by the

Procuring Entity (whether through its own enquiries, through notification by the public or
otherwise), shows any conflict of interest which could materially and improperly benefit the
Applicant in relation to the procurement or contract management process, then:
a. If the procurement process is still ongoing, the Applicant will be disqualified from the
procurement process,
b. If the contract has been awarded to that Applicant, the contract award will be set aside,
15.10 the Applicant will be referred to the relevant law enforcement authorities for investigation
of whether the Applicant or any other persons have committed any criminal offence.

15.11 If an Applicant submits information pursuant to these requirements that is incomplete, in

accurate or out-of-date, or attempts to obstruct the verification process, then the consequences
ITT 6.7 will ensue unless the Applicant can show to the reasonable satisfaction of the
Procuring Entity that any such act was not material, or was due to genuine error which was
not attributable to the intentional act, negligence or recklessness of the Applicant.

16 Signing of the Application and Number of Copies

16.1 The Applicant shall prepare one original of the documents comprising the Application as
describedinITA11 and clearly mark it “ORIGINAL”. The original of the Application shall be
typed or written in indelible ink and shall be signed by a person duly authorized to sign on
behalf of the Applicant. In case the Applicant is a JV, the Application shall be signed by an
authorized representative of the JV on behalf of the JV and so as to be legally binding on all
the members as evidenced by a power of attorney signed by their legally authorized
signatories.
16.2 The Applicant shall submit copies of the signed original Application, in the number specified
in the PDS, and clearly mark them “COPY”. In the event of any discrepancy between the
original and the copies, the original shall prevail.

D. Submission of Applications

17 Sealing and Marking of Applications

17.1 The Applicant shall enclose the original and the copies of the Application in a sealed
envelope that shall:
a Bear the name and address of the Applicant;
b Be addressed to the Procuring Entity, in accordance with ITA 17.1; and
c Bear thespecificidentificationofthisprequalificationprocessindicatedinthePDS1.1.

17.2 The Procuring Entity will accept no responsibility for not processing any envelope that was

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 not identified as required in ITA 16.1 above.

18 Deadline for Submission of Applications

18.1 Applicants may either submit their Applications by mail or by hand. Applications shall be
received by the Procuring Entity at the address and no later than the deadline indicated in
the PDS. When so specified in the PDS, Applicants have the option of submitting their
Applications electronically, in accordance with electronic Application submission
procedures specified in the PDS.

18.2 The Procuring Entity may, at its discretion, extend the deadline for the submission of
Applications by amending the Prequalification Document in accordance with ITA 8, in
which case all rights and obligations of the Procuring Entity and the Applicants subject to
the previous deadline shall thereafter be subject to the deadline as extended.

19 Late Applications

19.1 The Procuring Entity reserves the right to accept applications received after the deadline for
submission of applications, unless otherwise specified in the PDS. If late applications will
be accepted, they must be received not later than the date specified in the TDS after the
deadline for submission of applications.

20. Opening of Applications

20.1 The Procuring Entity shall open all Applications at the date, time and place specified in the
PDS. Late Applications shall be treated in accordance with ITA 19.1.

20.2 Applications submitted electronically (if permitted pursuant to ITA 17.1) shall be opened in
accordance with the procedures specified in the PDS.

20.3 The Procuring Entity shall prepare a record of the opening of Applications to include, as a
minimum, the name of the Applicants. A copy of the record shall be distributed to all
Applicants.

E. Procedures for Evaluation of Applications

21 Confidentiality

21.1 Information relating to the Applications, their evaluation and results of the prequalification
shall not be disclosed to Applicants or any other persons not officially concerned with the
prequalification process until the notification of prequalification results is made to all
Applicants in accordance with ITA 28.

21.2 From the deadline for submission of Applications to the time of notification of the results
of the prequalification in accordance with ITA 28, any Applicant that wishes to contact the
Procuring Entity on any matter related to the prequalification process may do so only in
writing.

22 Clarification of Applications

22.1 To assist in the evaluation of Applications, the Procuring Entity may, at its discretion, ask
an Applicant for a clarification (including missing documents) of its Application, to be
submitted within a stated reasonable period of time. Any request for clarification from the
Procuring Entity and all clarifications from the Applicant shall be in writing.

22.2 If an Applicant does not provide clarifications and/or documents requested by the date and
time set in the Procuring Entity's request for clarification, its Application shall be evaluated

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 based on the information and documents available at the time of evaluation of the
Application.

22 Responsiveness of Applications

22.1 The Procuring Entity may reject any Application which is not responsive to the
requirements of the Prequalification Document. In case the information furnished by the
Applicant is incomplete or otherwise requires clarification as per ITA 21.1, and the
Applicant fails to provide satisfactory clarification and/or missing information, it may result
in disqualification of the Applicant.

23 Margin of Preference

23.1 Unless otherwise specified in the PDS, a margin of preference shall not apply in the
Tendering process resulting from this prequalification.

24 Nominated Subcontractors

24.1 Unless otherwise stated in the PDS, the Procuring Entity does not intend to execute any
specific elements of the works by sub-contractors selected in advance by the Procuring
Entity (so-called “Nominated Subcontractors”).

24.2 The Applicant shall not propose to subcontract the whole of the Works or Goods. The
maximum limit of subcontracting permitted under the contract may be specified by the
Procuring Entity in the Tendering Document. The Procuring Entity, in ITA 25.2, may
permit the Applicant to propose subcontractors for certain specialized parts of the contract
as indicated there in as (“Specialized Subcontractors”). Applicants planning to use such
Specialized Subcontractors shall specify, in the Application Submission Letter, the
activity(ies) or parts of the Works proposed to be subcontracted along with details of the
proposed subcontractors including their qualification and experience.

F. Evaluation of Applications and Prequalification of Applicants

25 Evaluation of Applications

25.1 The Procuring Entity shall use the factors, methods, criteria, and requirements defined in
Section III, Qualification Criteria and Requirements, to evaluate the qualifications of the
Applicants, and no other methods, criteria, or requirements shall be used. The Procuring
Entity reserves the right to waive min or deviations from the qualification criteria if they do
not materially affect the technical capability and financial resources of an Applicant to
perform the Contract.

25.2 Subcontractors proposed by the Applicant shall be fully qualified and meet the minimum
specific experience criteria as specified for their parts of the proposed contract for Works or
Goods or non-consulting services. The subcontractor's qualifications shall not be used by the
Applicant to qualify for the Works or Goods or non- consulting services unless their parts of
the Works or Goods or non-consulting services were previously designated by the Procuring
Entity in the PDS as can be met by Specialized Subcontractors, in which case:
i) The Specialized Subcontractors shall meet the minimum qualification requirements
specified in Section III, and
ii) The qualifications with respect to specific experience of the Specialized Subcontractor
proposed by the Applicant may beaded to the qualifications of the Applicant for the
purpose of the evaluation.
Unless the Applicant has been determined prequalified on its own without taking into
account the qualification and experience of the proposed specialized sub-contractor, the
tender submitted by the Applicant shall include the same specialized sub-contractor failing
which, such tender may be rejected unless a change in the specialized sub-contractor was
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 requested by the Applicant and approved by the Procuring Entity subsequent to
prequalification but before the tender submission deadline in accordance with ITA 30.

25.3 In case of multiple contracts, Applicants should indicate in their Applications the individual
contract or combination of contracts in which they are interested. The Procuring Entity shall
prequalify each Applicant for each lot and for a combination of contracts for which the
Applicant has thereby indicated its interest and for which the Applicant meets the
appropriate aggregate requirements the Eligibility and Qualification Criteria.

25.4 Further, in the case of multiple contracts, the Procuring Entity will prepare the Eligibility
and Qualification Criteria Form for items 3.1, 3.2, 4.2(a) and 4.2(b) for each Lot, to be
completed by applicants.

25.5 Only the qualifications of the Applicant shall be considered. The qualifications of other
firms, including the Applicant's subsidiaries, parent entities, affiliates, subcontractors (other
than Specialized Subcontractors in accordance with ITA 25.2 above) or any other firm(s)
different from the Applicant shall not be considered.

26 Procuring Entity's Right to Accept or Reject Applications

26.1 The Procuring Entity reserves the right to accept or reject any Application, and to annul the
prequalification process and reject all Applications at any time, without thereby incurring
any liability to the Applicants.

27 Prequalification of Applicants

27.1 All Applicants whose Applications substantially meet or exceed the specified qualification
requirements will be prequalified by the Procuring Entity. The Procuring Entity shall notify
all Applicants in writing of the names of those Applicants who have been prequalified or
conditionally prequalified. In addition, those Applicants who have been disqualified will be
informed separately.

27.2 Applicants that have not been prequalified may write to the Procuring Entity to request, in
writing, the grounds on which they were disqualified.

28 Invitation to Tender

27.3 Promptly after the notification of the results of the prequalification, the Procuring Entity
shall invite Tenders from all the Applicants that have been prequalified or conditionally
prequalified.

27.4 Applicants may be required to provide a Tender Security or a Tender-Securing Declaration

acceptable to the Procuring Entity in the form and an amount to be specified in the tendering
document.

27.5 The successful Applicant shall be required to provide a Performance Security as specified in
the tendering document.

29 Changes in Qualifications of Applicants

29.1 Any change in the structure or formation of an Applicant after being prequalified in
accordance with ITA 27 and invited to tender (including, in the case of a JV, any change in
the structure or formation of any member and also including any change in any specialized
subcontractor whose qualifications were considered to prequalify the Applicant) shall be
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 subject to the written approval of the Procuring Entity prior to the deadline for submission
of Tenders. Such approval shall be denied if (i) a prequalified applicant proposes to
associate with a disqualified applicant or in case of a disqualified joint venture, any of its
members; (ii) as a consequence of the change, the Applicant no longer substantially meets
the qualification criteria set forth in Section III (Qualification Criteria and Requirements); or
(iii)in the opinion of the Procuring Entity, the change may result in a substantial reduction in
competition. Any such change should be submitted to the Procuring Entity not later than
fourteen (14) days after the date of the Invitation to Tender.

30 Procurement Related Complaints

30.1 The procedures for making a Procurement-related Complaint are as specified in the PDS.

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SECTION II - PREQUALIFICATION DATA SHEET (PDS)

A. General

ITA I .1 Tender reference no :TENDER NO: IEBC/OT/21/04/2020-2021

Procuring Entity: The Independent Electoral and Boundaries Commission
(IEBC)
The Identification of the invitation for prequalification is: Provision of Legal
and Consultancy Services.
Application is for: Legal firms under General and AGPO categories who are
duly registered.
Prequalification will be based on : as and when required basis for the period
ending June, 2023

ITA 2 The Source of Funds shall be : Government of Kenya

ITA 8.1
Independent Electoral and Boundaries Commission (IEBC)
Anniversary Towers, University Way, Fifth
Floor P O Box 45371-00100 Nairobi.
Website: www.iebc.or.ke

ITA 8.2 Pre application meeting Not Applicable

ITA 8.3 Questions and requests for clarification made in writing or by email shall reach
the procuring entity not later than 8th June, 2021.
ITA 9.2 Addendum issued shall be published at www.iebc.or.ke

ITA 16.2 Applicants must submit one (1) ORIGINAL TENDER” and one (1) COPY of
the Tender sealed in a single outer envelope
ITA 17.1 Completed applications must be delivered to the address below on or before
Monday14th June, 2021
The Ag. Chief Executive Officer/Commission Secretary
Independent Electoral and Boundaries Commission (IEBC)
Anniversary Towers, University Way, Fifth Floor P O Box 45371-00100
Nairobi.
ITA 20.1 Applications will be opened on the same day Monday 14th June, 2021 at 11:00
am East African Time. Tenderers’ representatives who choose to attend in
the location specified in the invitation to tender. The tenderers’
representatives may access the opening exercise through electronic means
through a link that will be provided to bidders.

15
ITA 31.1 An applicant wishing to make a procurement related complaint, the applicant
should submit its complaint in writing to either procurement@iebc.or.ke or
address to:
The Ag. Chief Executive Officer/Commission Secretary
Independent Electoral and Boundaries Commission (IEBC) Anniversary
Towers, University Way, Fifth Floor P O Box 45371-00100 Nairobi.
Website: www.iebc.or.ke

16
SECTION III - QUALIFICATION CRITERIA AND REQUIREMENTS

Category 1:
No. Subject Criteria Mandatory Requirements Pass or
Fail.
1. Legal Capacity To determine capacity to Must submit a Copy of
enter into contract. Certificate of incorporation/
Registration
2. Compliance with To determine intention to Must attach duly filled Application
Application be prequalified Submission Letter
Criteria

3. Ownership Confirmation of Must submit a copy of

Structure details of directors and Company’s CR12
shareholders. Must attach copies of National IDs/
Passports for directors
4. Tax Compliance Proof of the bidder has Must submit a Copy of a valid
fulfilled tax obligations. tax compliance certificate
5. History of Non- Confirmation of Reference letters on client letterheads
Performing performance from five (5) major clients that the
Contracts bidders are currently representing, and
details of contact persons.
6. Page To safeguard tender Tender document MUST be
serialization documents from sequentially serialized on each
mutilation and page including all the
manipulation attachments
7. Business To provide details of Applicant Information Form
Information business ownership
structure
8. Pending To avoid conflicting Must provide a statement that bidder
Litigation with interests to the has no pending litigation against the
the Commission Commission Commission.
9. Disclosure on To provide status of Provide a statement on the status of
disciplinary disciplinary cases any of the Partners or Associates with
cases pending or concluded disciplinary
case(s) at the Advocates Complaints
Commission or the Disciplinary
Tribunal.
10. Ethical and Proof that the bidder has Duly Filled Self-Declaration Form
legal history not been convicted
of corruption
11. Financial To determine ability to Must attach a Bank Opinion or a Bank
Capabilities handle multiple cases. Guarantee indicating credit line limit
Must attach an auditors’ certificate for
the period preceding the current
financial year of the company

17
 12. Registration with Evidence that the tenderer Copies of admission certificates and
the relevant meets statutory current practicing certificates of the
Authority requirements. proprietor, partners and associates

Category 2:
No. Subject Criteria Mandatory Requirements Pass or
Fail.
1. Legal Capacity To determine capacity to Must submit a Copy of
enter into contract. Certificate of incorporation/
Registration
2. Compliance with To determine intention to Must attach duly filled Application
Application be prequalified Submission Letter
Criteria
3. Ownership Confirmation of Must submit a copy of
Structure details of directors and Company’s CR12 for
shareholders. Companies
Must attach copies of National IDs/
Passports for directors for Sole
Proprietorship

4. Tax Compliance Proof of the bidder has Must submit a Copy of a valid
fulfilled tax obligations. tax compliance certificate
5. History of Non- Confirmation of Reference letters on client letterheads
Performing performance from five (5) major clients that the
Contracts bidders are currently representing, and
details of contact persons.

6. Page To safeguard tender Tender document MUST be

serialization documents from sequentially serialized on each
mutilation and page including all the attachments
manipulation
7. Business To provide details of Applicant Information Form
Information business ownership
structure
8. Pending To avoid conflicting Must provide a statement that bidder
Litigation with interests to the has no pending litigation against the
the Commission Commission Commission.
9. Disclosure on To provide status of Provide a statement on the status of
disciplinary disciplinary cases any of the Partners or Associates with
cases pending or concluded disciplinary
case(s) at the Advocates Complaints

18
 10. Financial To determine ability to Must attach Original Bank
Capabilities handle multiple cases. Statement/Bank reference of not more
than three months from date of
applying
Must attach an auditors’ certificate for
the period preceding the current
financial year of the company
11. Ethical and Proof that the bidder has Duly Filled Self-Declaration Form
legal history not been convicted
of corruption

12. Registration with Evidence that the tenderer Copies of admission certificates and
the relevant meets statutory current practicing certificates of the
Authority requirements. proprietor, partners and associates

Copy of certificate of registration with

relevant regulatory bodies (for persons
with disabilities registration with
National Council for Persons with
Disability)

Certificate of Registration in a target

group issued by the National Treasury
Copy of certificate of registration with
relevant regulatory bodies (for persons
with disabilities registration with
National Council for Persons with
Disability)

Bidder Evaluation – Category 1 and 2:

No. Subject Criteria Mandatory Requirements Pass or

Fail.
1. Practicing To determine validity of Must submit copy of Practicing
Certificates Practicing Certificates of Certificates of the Partners and
the Partners and Associates Associates in the firm (2021) Or
in the firm Payment Receipt In lieu of Certificate.
2. Professional To provide security The Indemnity shall be:
Indemnity Cover against or exemption from
legal liability to the a) Denominated in Kenya Shillings
Commission b) Issued by an insurance company
located in Kenya and registered by
the Insurance Regulatory
Authority
c) valid as at the closing date of the
tender

19
 d) Written commitment that the cover
shall be updated and valid at all
times for the period of
engagement and rendering of
services to the Commission.
3. Admission Confirmation that Copies of admission certificates of
certificates practitioner (s) are the Proprietor, Partners and
admitted to the bar Associates.
4. Methodology of To confirm that bidders Submit proposal on Methodology of
Charging for will comply with Charging for Services being the unit
Services Advocates Remuneration prices and rates (where applicable)
Order when called upon to do render such
Services. The rates and prices shall be
of costs for the Services inclusive of
VAT.

The method of charging legal fees for

the services rendered shall generally
be in accordance with the Advocates
Remuneration Order as applicable to
the case or matter and shall be on
case to case basis.
5. Good Standing Confirmation that the Submit a letter of good standing per
practitioner(s) are of good advocate of the law firm from the Law
standing with the Law Society of Kenya
Society of Kenya

6. Business To confirm experience, Provide Organization structure of the

Information location, and size firm
Experience of each of the partners in
handling legal matters
Curriculum Vitae of the firm’s
partners and associates and their
respective academic certificates
Provide details of number and
specialization of each of the partners
and associates
Indicate the number of employees
Provide details of Fixed Location
and premises of the law firm
7. Nature of To confirm areas of The firm shall identify the nature of
Assignments specialization where the assignments it is willing to take up on
firms/practitioners will be behalf of the Commission in any or
willing to take instructions all of the following fields of law:-
to work.

Constitutional and judicial review

litigation

20
 Electoral law spectrum including
election petitions
General civil litigation

Employment and labour litigation

Public procurement law litigation

Commercial law
Environmental law

Conveyance and land law

Arbitration and other forms of ADR
Insurance and Banking law
Consultancy/Legal advice on any of
the above

Such other relevant specialty.

Registration of Service Providers

All Applicants whose Applications substantially meet or exceed the specified

qualification requirements will be prequalified by the Commission.

The Commission shall notify all Applicants in writing of the names of those
Applicants who have been prequalified or conditionally prequalified.

In addition, those Applicants who have been disqualified will be informed separately.

21
SECTION IV- APPLICATION FORMS

1. Application Submission Letter

Date:................................................[insert day, month, and year]

ITT No. and title..................................................[insert ITT number and title]

To:................................................[insert full name of Procuring Entity] We, the undersigned, apply

to be prequalified for the referenced ITT and declare that:
a) No reservations: We have examined and have no reservations to the Prequalification Document,
including Addendum(s) No(s), issued in accordance with ITA 8: [insert the number and issuing
date of each addendum].

b) No conflict of interest: We have no conflict of interest in accordance with ITA 5.7;

c) Eligibility: We (and our subcontractors) meet the eligibility requirements as stated ITA 5, we have
not been suspended by the Procuring Entity based on execution of a Tender/Proposal-Securing
Declaration in accordance with ITA 5.8;

Suspension and Debarment: We, along with any of our subcontractors, suppliers, consultants,
manufacturers, or service providers for any part of the contract, are not subject to, and not
controlled by any entity or individual that is subject to, a temporary suspension or a debarment
imposed by the PPRA. Further, we are not ineligible under the Kenya laws or official regulations or
pursuant to a decision of the United Nations Security Council;

State-owned enterprise or institution: [select the appropriate option and delete the other] [We are
not a state- owned enterprise or institution] / [We are a state-owned enterprise or institution but
meet the requirements of ITA5.9];

f) Subcontractors and Specialized Subcontractors: We, in accordance with ITA 24.2 and 25.2, plan to
subcontract the following key activities and/or parts of the works or supply contracts:
............................................... [Insert any of the key activities identified in Section III-4.2 (a)or(b) or
4.3(a) or (b) which the Procuring Entity has permitted under the Prequalification Document and
which the Applicant intends to subcontract along with complete details of the Specialized
Subcontractors, their qualification and experience]

(g) Commissions, gratuities, fees: We declare that the following commissions, gratuities, or fees have
been paid or are to be paid with respect to the prequalification process, the corresponding
Tenderding process or execution of the Contract:

22
 [If no payments are made or promised, add the following statement: “No commissions or
gratuities have been or are to be paid by us to agents or any third party relating to this Application]

(h) Not bound to accept: We understand that you may cancel the prequalification process at any time
and thatyouareneitherboundtoacceptanyApplicationthatyoumayreceivenortoinvite the prequalified
Applicants to Tender for the contract subject of this Prequalification process, without incurring any
liability to the Applicants, in accordance with ITA 26.1.

(i) True and correct: All information, statements and description contained in the Application are in all
respect true, correct and complete to the best of our knowledge and belief.

Signed...............................................[insertsignature(s)ofanauthorizedrepresentative(s)oftheApplicant]

Name...............................................[insert full name of person signing the Application]

In the capacity of.................................................[insert capacity of person signing the Application]

Duly authorized to sign the Application for and on behalf of: Applicant's
Name................................................[insert full name of Applicant or the name of the JV]

Address.................................................[insert street number/town or city/country address]

Dated on................................................[insert day number] day of [insert month], [insert year]

[For a joint venture, either all members shall sign or only the authorized representative, in which case
the power of attorney to sign on behalf of all members shall be attached]

23
2. Form ELI -1.1 - Applicant Information Form

Date:........................................................[insert day, month, year]

ITT No. and title.........................................................[insert ITT number and title]

Page......................................................[insert page number] of [insert total number] pages

24
3. Form ELI-1.2 - Applicant's JV Information Form

[The following form is additional to Form ELI–1.1., and shall be completed to provide information
relating to each JV member (incase the Applicant is a JV) as well as any Specialized Subcontractor
proposed to be used by the Applicant for any part of the Contract resulting from this prequalification]

Date:...................................................[insert day, month, year]

ITT No. and title: ............................ [insert ITT number and title]

Page..............................................[insert page number] of [insert total number]

pages

25
26
4. Form FIN – 3.1 - Financial Situation and

Performance Financial Situation and

Performance

[The following table shall be filled in for the Applicant and for each member of a Joint Venture]

Applicant's Name:...................................[insert full name]

Date:...................................[insert day, month, year]

Joint Venture Member Name:...................................[insert full name]

ITT No. and title....................................[insert ITT number and title]

Page.................................[insert page number] of [insert total number] pages

4.1 Financial Data

* Refer ITA 14 for the exchange rate

27
4.2 Sources of Finance

[The following table shall be filled in for the Applicant and all parties combined in case of a Joint Venture]

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

4.3 Financial documents

The Applicant and its parties shall provide copies of financial statements for [number] years pursuant
Section III, Qualifications Criteria and Requirements, Sub-factor 3.1. The financial statements shall:

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

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

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

d) Correspond to accounting periods already completed and audited.

1
Attached are copies of financial statements for the [number] years required above; and
complying with the requirements

1If the most recent set of financial statements is for a period earlier than 12 months from the date of
Application, the reason for this should be justified.

28
5. Form FIN - 3.2 - Average Annual Construction or Supply Contracts Turnover

[The following table shall be filled in for the Applicant and for each member of a Joint Venture]

Applicant's Name:...................[insert full name]

Date:..................[insert day, month, year]

Joint Venture Member Name:...................[insert full name]

ITT No. and title: [insert ITT number and title]

Page.................[insert page number] of .................[insert total number] pages Table A (Complete

if Contractor)

* Refer ITA 14 for date and source of exchange rate.

** Total Kenya shilling equivalent for all years divided by the total number of years. See
Section III, Qualification Criteria and Requirements, 3.2.

29
Table B (Complete if Supplier)

Refer ITA 15 for date and source of exchange rate.

** Total Kenya shilling equivalent for all years divided by the total number of years. See Section III,
Qualification Criteria and Requirements, 3.2.

30
6. Form EXP - 4.1 - General Construction or Supply or service Contract Experience (Select one)

[The following table shall be filled in for the Applicant and in the case of a JV Applicant, each Member]
Applicant's Name: [insert full name]

Date:.........................[insert day, month, year]

Joint Venture Member Name:..........................[insert full name]

ITT No. and title...........................[insert ITT number and title]

Page.........................[insert page number] of [insert total number] pages

[Identify contracts that demonstrate continuous construction work over the past [number] years pursuant
to Section III, Qualification Criteria and Requirements, Sub-Factor 4.1. List contracts chronologically,
according to their commencement (starting) dates.]

* Refer ITA 15 for date and source of exchange rate.

31
7. Form EXP - 4.2(a) - Specific Construction and Contract Management Experience or Supply or
service Contract Experience (Select one)

[The following table shall be filled in for contracts performed by the Applicant, each member of a Joint
Venture, and Specialized Sub-contractors]

Applicant's Name:......................[insert full name]

Date:.....................[insert day, month, year]

Joint Venture Member Name:......................[insert full name]

ITT No. and title.......................[insert ITT number and title]

Page.................... [insert page number] of....................[insert total number] pages

32
* Refer ITA 15 for date and source of exchange rate.

33
8. Form EXP - 4.2(a) (cont.) - Specific Construction and/or Contract Management Experience
(cont.)

34
9. Form EXP - 4.2(b) - Construction Experience or Supply or service contract in Key Activities
(select one)
Applicant's Name:.........................[insert full name]
Date:........................[insert day, month, year]
Applicant's JV Member's Name:.........................[insert full name]
Sub-contractor's Name........................(as per ITA 24.2 and 24.3): [insert full name]
ITT No. and title: ....................... [insert ITT number and title]
Page.......................[insert page number] of....................... [insert total
number] pages
All Sub-contractors for key activities must complete the information in this form as per ITA 24.2 and 24.3
and Section III, Qualification Criteria and Requirements, 4.2.
1. Key Activity No. One: [insert brief description of the Activity, emphasizing its
specificity] Total Quantity of Activity under the contract:

City area codes]

35
2. Activity No. Two

3. …………………

36
PART 2 - WORKS, GOODS OR NON - CONSULTING SERVICES REQUIREMENTS

(select one)

37
SECTION V - SCOPE OF WORKS, Goods or Non-Consulting Services required

1. Description of the Works or Supply contract: Prequalification of Law Firms for The Provision of
Legal Services

2. Non-Consulting Services Contract period: for the period ending June, 2023

3. Site and Other Data.

Independent Electoral and Boundaries Commission (IEBC) Anniversary Towers, University
Way, Fifth Floor P O Box 45371-00100 Nairobi.
Website: www.iebc.or.ke

Or

Any of the offices in the 47 Counties of the Republic of Kenya.

PREQUALIFICATION OF LAW FIRMS FOR THE PROVISION OF LEGAL SERVICES

38
TERMS OF REFERENCE (TOR)

In developing the tender for adding on to the list of prequalification of law firms for provision of legal
services – 2021-2023, the following parameters are to be considered: -

1. The law firm must possess and provide the following mandatory documents:-

i. Copy of Practicing Certificates of the Partners and Associates in the firm (2021) Or Payment
Receipt In lieu of Certificate.
ii. Copies of Audited and Certified financial accounts for the last three (3) financial years. (Newly
registered firms to provide audited accounts for the period they have been in practice.) retained
with understanding that to reword it to speak to those registered in the last 1 months
disenfranchises those which have been in practice for 2 years and have no audited accounts for
the 2 years.
iii. Copies of Pin and VAT Certificates of the firm or of the individual proprietor if it is a sole
proprietorship.
iv. Professional Indemnity Cover and:-
a) shall be denominated in Kenya Shillings
b) shall be issued by an insurance company located in Kenya and registered by the
Insurance Regulatory Authority.
c) shall be valid as at the closing date of the tender.
d) The successful law firm’s Professional Indemnity Cover will be required to be updated
and valid at all times for the period of engagement and rendering of services to the
Commission.
v. Valid Tax Compliance Certificate from the Kenya Revenue Authority.
vi. Copies of admission certificates of the Proprietor, Partners and Associates.
vii. A Copy of Certificate of Registration of Business.

2. The Law firms must also provide: -

viii. Letters of recommendation from three (3) of the firm’s major clients.
ix. Duly completed Application Submission Letter
x. Duly completed declaration and integrity form
xi. Duly filed completed confidential pre-qualification Applicant Information Form Provide the
Methodology of Charging for Services being the unit prices and rates (where applicable) when
called upon to do render such Services. The rates and prices shall be of costs for the Services
inclusive of VAT. The method of charging legal fees for the services rendered shall generally
be in accordance with the Advocates Remuneration Order as applicable to the case or matter
and shall be on case to case basis. (consider to expunge considering including in the instruction
letter).
xii. Letter of good standing per advocate of the law firm from the Law Society of Kenya.
xiii. A Duly Signed Declaration not to engage in corruption made pursuant to section 62 of the
Public Procurement and Asset Disposal Act, 2015 indicating that the firm or any of its
partners, associates and/or employees will not engage in any corrupt or fraudulent practice and
declaration that the firm or any of its partners, associates and/or employees are not debarred
from participating in procurement proceedings.

39
 xiv. The firm’s profile which include therein: -
 Organization structure of the firm
 Curriculum Vitae of the firm’s partners and associates and their respective academic
certificates.
 Experience of each of the partners in handling legal matters.
 Number and specialization of each of the partners and associates.
 Number of employees.
 Facilities available within the firm including office space.
 Fixed Location and premises of the law firm.
 Regional presence and the Counties and/or major towns which the firm is willing to render
its services in.
(retained with the understanding that as the firm draws its structure we expect the firm to
specifically provide those details.)

3. Disclosure as to whether any of the Partners or Associates has pending or concluded disciplinary
case(s) at the Advocates Complaints Commission or the Disciplinary Tribunal.

4. The firm shall sign a Service Level Agreement (SLA) with the Commission on being issued with
instructions which shall set out the expected standards of work.

5. The law firm shall ensure that it does not take up litigation against the Commission, provision of
professional services to a party with conflicting interests to the Commission or undertake such other
assignments injurious to the Commission’s interests.

6. The firm shall identify the nature of assignments it is willing to take up on behalf of the Commission
in any of the following fields of law:-
 Constitutional and judicial review litigation
 Electoral law spectrum including election petitions
 General civil litigation
 Employment and labour litigation
 Public procurement law litigation
 Commercial law
 Environmental law
 Conveyance and land law
 Arbitration and other forms of ADR
 Insurance and Banking law
 Consultancy/Legal advice on any of the above
 Such other relevant specialty.

7. The firm shall state if it has any linkages with other law firms outside the Kenya with which it can
assign its international legal work should the Commission require such services.

8. Law firm with a record of unsatisfactory or default in performance obligations in any contract or
service delivery shall not be considered for evaluation or award.

9. Law firms with geographical presence outside Nairobi are encouraged to apply.

10. While considering the law firm’s allocation, the Commission shall have regard to promote
representatives of marginalized groups:

40
 a) People Living With Disabilities
b) Youth and
c) Women

11. Law firms currently prequalified in the IEBC.PRQ/01/2019-2020 need not apply.

41
FRAUD AND CORRUPTION

1. Purpose

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

2. Requirements

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

2.2 Kenya's public procurement and asset disposal act (no. 33 of 2015) under
Section 66 describes rules to be followed and actions to be taken in dealing
with Corrupt, Coercive, Obstructive, Collusive or Fraudulent practices, and
Conflicts of Interest in procurement including consequences for offences
committed. A few of the provisions noted below highlight Kenya's policy of no
tolerance for such practices and behavior:
1) a person to whom this Act applies shall not be involved in any corrupt,
coercive, obstructive, collusive or fraudulent practice; or conflicts of interest in
any procurement or asset disposal proceeding;
2) A person referred to under subsection (1) who contravenes the provisions
of that sub-section commits an offence;
3) Without limiting the generality of the subsection (1) and (2), the person shall be
—
a) disqualified from entering into a contract for a procurement or asset
disposal proceeding; or
b) if a contract has already been entered into with the person, the contract
shall be voidable;
4) The voiding of a contract by the procuring entity under subsection (7) does
not limit any legal remedy the procuring entity may have;
5) An employee or agent of the procuring entity or a member of the Board
or committee of the procuring entity who has a conflict of interest with
respect to a procurement:-
a) shall not take part in the procurement proceedings;
b) shall not, after a procurement contract has been entered into, take part
in any decision relating to the procurement or contract; and
c) shall not be a subcontractor for the bidder to whom was awarded
contract, or a member of the group of bidders to whom the contract
was awarded, but the subcontractor appointed shall meet all the
requirements of this Act.

6) An employee, agent or member described in subsection (1) who refrains

from doing anything prohibited under that subsection, but for that
subsection, would have been within his or her duties shall disclose the
conflict of interest to the procuring entity;
42
 7) If a person contravenes subsection (1) with respect to a conflict of interest
described in subsection (5)(a) and the contract is awarded to the person
or his relative or to another person in whom one of them had a direct or
indirect pecuniary interest, the contract shall be terminated and all costs
incurred by the public entity shall be made good by the awarding officer.
Etc.

2.3 In compliance with Kenya's laws, regulations and policies mentioned above, the
Procuring Entity:

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

• deliberately destroying, falsifying, altering, or concealing of

evidence material to the investigation or making false statements
to investigators in order to materially impede investigation by
Public Procurement Regulatory Authority (PPRA) or any other
appropriate authority appointed by Government of Kenya into
allegations of a corrupt, fraudulent, coercive, or collusive
practice; and/or threatening, harassing, or intimidating any party
to prevent it from disclosing its knowledge of matters relevant
to the investigation or from pursuing the investigation; or

• acts intended to materially impede the exercise of the PPRA's

or the appointed authority's inspection and audit rights provided
for under paragraph 2.3 e. below.

b) Defines more specifically, in accordance with the above procurement Act

provisions set forth for fraudulent and collusive practices as follows:

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

influence a procurement or disposal process or the exercise of a contract
to the detriment of the procuring entity or the tenderer or the contractor,
and includes collusive practices amongst tenderers prior to or after tender
submission designed to establish tender prices at artificial non-competitive
levels and to deprive the procuring entity of the benefits of free and open
competition.
1
c) Rejects a proposal for award of a contract if PPRA determines that the
firm or individual recommended for award, any of its personnel, or its

43
 agents, or its sub-consultants, sub-contractors, service providers, suppliers
and/ or their employees, has, directly or indirectly, engaged in corrupt,
fraudulent, collusive, coercive, or obstructive practices in competing for the
contract in question;

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

e) Requires that a clause be included in Tender documents and Request for

Proposal documents requiring (i) Tenderers (applicants/proposers),
Consultants, Contractors, and Suppliers, and their Sub-contractors, Sub-
consultants, Service providers, Suppliers, Agents personnel, permit the
PPRA or any other appropriate authority appointed by Government of
2
Kenya to inspect all accounts, records and other documents relating to
the procurement process, selection and/or contract execution, and to have
them audited by auditors appointed by the PPRA or any other appropriate
authority appointed by Government of Kenya; and

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

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

1For the avoidance of doubt, a party's ineligibility to be awarded a contract shall

include, without limitation, (i) applying for pre-qualification, expressing interest in a

consultancy, and tendering, either directly or as a nominated sub-contractor,
nominated consultant, nominated manufacturer or supplier, or nominated service
provider, in respect of such contract, and (ii) entering into an addendum or amendment
introducing a material modification to any existing contract.

2 Inspections in this context usually are investigative (i.e., forensic) in nature. They

involve fact-finding activities undertaken by the Investigating Authority or persons

appointed by the Procuring Entity to address specific matters related to
investigations/audits, such as evaluating the veracity of an allegation of possible Fraud
and Corruption, through the appropriate mechanisms. Such activity includes but is not
limited to: accessing and examining a firm's or individual's financial records and
information, and making copies thereof as relevant; accessing and examining any
other documents, data and information (whether in hard copy or electronic format)
deemed relevant for the investigation/audit, and making copies thereof as relevant;
interviewing staff and other relevant individuals; performing physical inspections and
site visits; and obtaining third party verification of information.

44
SELF-DECLARATION FORMS

SELF DECLARATION THAT THE PERSON/TENDERER IS NOT

DEBARRED IN THE MATTER OF THE PUBLIC PROCUREMENT AND
ASSET DISPOSAL ACT 2015.

I,..........................................................................of Post Office

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

THAT I am the Company Secretary/ Chief Executive/Managing Director/Principal

Officer/Director of....................................................(insert name of the Company) who
is a Bidder in respect of
TenderNo....................................for.........................................................................................
.....(insert tender title/description) for..........................................(insert name of the
Procuring entity) and duly Authorized and competent to make this statement.

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

2. THAT what is deponed to herein above is true to the best of my knowledge,

information and belief.

………………………… ……………………… ..................

(Title) (Signature) (Date)

Bidder Official Stamp

45
SELF DECLARATION THAT THE PERSON/TENDERER WILL NOT ENGAGE
IN ANY CORRUPT OR FRAUDULENT PRACTICE

I,......................................................................................of P.O.
Box.........................................being a resident of.............................................................in the
Republic of ...............................................do hereby make a statement as follows:-

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

of..............................................................……....…………………… (insert name of
the Company) who is a Bidder in respect of Tender
No................................................................for....................................(insert

tender title/description) for....................................................(insert name of the

Procuring entity) and duly authorized and competent to make this statement.

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

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

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

5. THAT what is deponed to herein above is true to the best of my knowledge

information and belief.

………………… …………………… ...........………

(Title) (Signature) (Date)

Bidder's Official Stamp

46
DECLARATION AND COMMITMENT TO THE CODE OF ETHICS

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

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

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

Sign……………....................................................................................................................................
.......

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

Office address……………………………………………….

Telephone…………….......………………….

E-

mail…………………………………........................................................................

...............……………

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

Date……………………………………..............................................................................…………
………

(Company Seal/ Rubber Stamp where applicable)

Witness

Name

……………………………………........................................................................

47
Sign………………………………………...............................................................

Date…………………………………………….......................................................

48
49