TENDER FOR THE DESIGN, SUPPLY, DELIVERY, INSTALLATION, TESTING, COMMISSIONING … · 2018. 8. 15. · Commissioning and Maintenance of a Device Management System (DMS) 1.1 The Communications

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COMMUNICATIONS AUTHORITY OF KENYA

TENDER DOCUMENT

Director-GeneralCommunications Authority of KenyaCA CentreWaiyaki WayP.O. Box 14448Nairobi 00800Kenya

TENDER FOR THE DESIGN, SUPPLY, DELIVERY,INSTALLATION, TESTING, COMMISSIONING AND

MAINTENANCE OF A DEVICE MANAGEMENT SYSTEM(DMS)

CA/PROC/OIT/27/2015-2016

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TABLE OF CONTENTS

ABBREVIATIONS, ACRONYMS AND DEFINITIONS 3

SECTION I: TENDER INVITATION 5

SECTION II: INSTRUCTIONS TO TENDERERS (ITT) 7

SECTION III: DEVICE MANAGEMENT SYSTEM 37

SECTION IV: TENDER DATA SHEET 45

SECTION V: GENERAL CONDITIONS OF CONTRACT 50

SECTION VI: CONTRACT DATA SHEET (SPECIFIC CONDITIONS OF CONTRACT) 63

SECTION VII: TECHNICAL REQUIREMENTS/SCHEDULE OF REQUIREMENTS 69

SECTION VIII: WORK PLAN AND EXPECTED DELIVERABLES 76

SECTION IX: TENDER EVALUATION 77

SECTION X: TRAINING, ACCEPTANCE AND MAINTENANCE 99

SECTION XI: TENDER FORMS 101

SECTION XII: FORMS OF SECURITY 113

SECTION XIII: APPLICATION TO PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD 116

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ABBREVIATIONS, ACRONYMS AND DEFINITIONS

In this tender document, unless otherwise stated the following definitions apply.3GPP 3rd Generation Partnership Project;API Application Programming Interface;CA Whitelist A database of genuine communication devices on the

DMS linking the devices to their users. Each entry onthe list will be defined by the triplet dataset:IMEIs+IMSI+MSISDN. Each MNO or MVNO willaccess the segment of the list containing theirsubscribers as defined by their assigned IMSIs;

CDR Call Detail Record;CommunicationDevice

Also referred to in this tender document as device,refers to a GSM end user terminal;

EIR Equipment Identity Register;Global List This is a list comprised of all communication devices

currently active in the MNO and MVNO databasesprior to the Commissioning of the DMS;

GSMInternationalRoaming

means the ability for a visiting consumer whose SIMCard is not issued for access to Kenya GSM servicesto automatically access GSM services while in Kenyaincluding home services;

GSMA GSM Association or Groupe Speciale MobileAssociation;

GUI Graphical User Interface;Illegalcommunicationsdevices

These communication devices include the following:i. SIM Boxesii. Counterfeit Devicesiii. Substandard Devicesiv. Non-Type Approved Devicesv. Stolen Devices

IMEI International Mobile Equipment Identity as defined in3GPP TS 23.003;

IMEI DB GSMA IMEI centralized database;IMSI International Mobile Subscriber Identity as defined in

the ITU-T Recommendation E. 212;INTERCOM International Commercial Terms;Mobile NetworkOperator (MNO)

means a licensee who is licensed to operate a GSMmobile communications network and to provide GSMmobile communications services;

Mobile VirtualNetwork

means a business model whereby a licensee providesmobile electronic communications services using the

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Operator(MVNO)

infrastructure of one or more MNOs;

MSISDN Mobile Station Integrated Subscriber DirectoryNumber as defined in ITU-T E.164;

OCR Optical Character Recognition;OIT Open International Tender;PPADA, 2015 Public Procurement and Asset Disposal Act, 2015PPRA Public Procurement Regulatory Authority;Roaming means the ability for a visiting consumer whose SIM

Card is not issued for access to Kenya GSM servicesto automatically access GSM services while in Kenyaincluding home services;

Publiccommunicationnetworks

A telecommunication network operated by an MNOor MVNO;

Service Provider means MNO or MVNO;SIM Subscriber Identity Module as defined under 3GPP

TS 42.017:SIM Box means an illegal Internet gateway aimed at illegally

terminating international traffic onto the localnetwork;

SIM Card Subscriber Identity Module as defined under 3GPPTS 42.017:;

SMS Short Messaging Service;Triplet Dataset IMEI+IMSI+MSISDN;Type Approval The process of evaluating and determining the

technical and operational suitability of acommunication device in Kenya;

UI User Interface, andVAT Value Added Tax.

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SECTION I: TENDER INVITATION

Tender No: CA/PROC/OIT/27/2015-2016

Tender Description: Design, Supply, Delivery, Installation, Testing,Commissioning and Maintenance of a Device Management System (DMS)

1.1 The Communications Authority of Kenya (hereinafter referred to as CAor the Authority) invites sealed tenders from interested eligible firms forthe Design, Supply, Delivery, Installation, Testing, Commissioning andMaintenance of a Device Management System (DMS).

1.2 A complete set of documents containing detailed information on theTender may be obtained from the Procurement office located at CACentre 3rd floor Wing A upon payment of a non - refundable fee of Kes1,000 in cash or Bankers Cheque payable to Communications Authorityof Kenya OR downloaded from the link: www.ca.go.ke/index.php/tendersor IFMIS supplier portal (http://supplier.treasury.go.ke ) at no cost.

1.3 Bidders who download the tender document are advised to sign a tenderregister at Procurement Office on 3rd Floor, CA Centre, along WaiyakiWay OR forward their particulars/contacts to the Head of Procurement,Communications Authority of Kenya, through the email [email protected] before the closing date for record keeping and forpurposes of receiving clarifications and/or addendums, if any.

1.4 Completed tender documents in plain, sealed envelope clearly markedCA/PROC/OIT/27/2015-2016 – ‘DESIGN, SUPPLY, DELIVERY,INSTALLATION, TESTING, COMMISSIONING ANDMAINTENANCE OF A DEVICE MANAGEMENT SYSTEM(DMS)” should be deposited in our tender box located on the groundfloor of the CA Centre or mailed to the address below, so as to reach onor before 11th May, 2016 at 2.30 p.m. East African Time.

Director-GeneralCommunications Authority of KenyaCA CentreWaiyaki WayP.O. Box 14448Nairobi 00800Kenya

Tenders should be submitted in two separate envelopes one containingthe technical proposal and the second containing the financial proposal,clearly marked;-

http://www.ca.go.ke/index.php/tendershttp://supplier.treasury.go.ke/mailto:[email protected]

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1. Technical proposal for the Design, Supply, Delivery, Installation,Testing, Commissioning and Maintenance of a DeviceManagement System. Tender Security should be enclosed in thetechnical proposal.

2. Financial proposal for the Design, Supply, Delivery, Installation,Testing, Commissioning and Maintenance of a DeviceManagement System (DO NOT OPEN WITH TECHNICALPROPOSAL). Financial proposals shall be opened in accordancewith Clause 4) of Section IX (Tender Evaluation) in this tenderdocument.

Tenders will be opened immediately thereafter on 11th May 2016 at 2.30 p.m.East African Time (closing date) in the presence of Tenderers or theirrepresentatives who choose to attend the opening at CA Boardroom.

This tender is open to bidders who meet the eligibility criteria. Only bidderswith the capacity to perform can apply.

Director-GeneralCommunications Authority of Kenya

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SECTION II: INSTRUCTIONS TO TENDERERS (ITT)

1. Introduction

1. Scope ofTender

1.1. The Authority named in Clause 1 of the Tender DataSheet invites Tenders for Design, Supply, Delivery,Installation, Testing, Commissioning and Maintenance ofa Device Management System (DMS) specified in Clause1 of the Tender Data Sheet and Section VII - TechnicalRequirements/Schedule Of Requirements. The successfulTenderer will be expected to supply the goods andservices within the period and start date specified inClause 1.1 of the Tender Data Sheet.

1.2. The successful Tenderer will be expected to complete thesupply of the goods and services by the requiredcompletion date specified in Clause 1.2 of the TenderData Sheet.

2. Source ofFunds

2.1. The Authority has set aside sufficient funds for the projectin the period mentioned in Clause 2 of the Tender DataSheet during the Financial Years 2015/2016 and2016/2017. It is intended that part of the proceeds of thefunds will be applied to cover eligible payments under thecontract for the supply of goods and services as describedin Clause 1.1 of the Tender Data Sheet.

2.2. Payments will be made directly by the Authority for eachcall-off order and will be subject in all respects to theterms and conditions of the resulting contract.

3. EligibleTenderers

3.1. A Tenderer may be a person, private entity, government-owned entity, subject to Section 55 of PPADA, 2015 andITT sub-Clause 3.4 or any combination of them with aformal intent to enter into an agreement or under anexisting agreement in the form of a joint venture,consortium or association. In the case of a joint venture,consortium or association, unless otherwise specified inClause 3 of the Tender Data Sheet, all parties shall bejointly and severally liable.

3.2. The invitation for Tenders is open to any legal persondescribed in 3.1 above.

3.3. Local sub-contractorsProvide details of any subcontractors the tenderer maywish to utilise for supply of some elements of their goodsand services. The subcontractor shall satisfy all relevantlicensing and/or registration requirements with the

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appropriate statutory bodies in Kenya as specified inClause 3 of the Tender Data Sheet.

3.4. A Tenderer shall not have a conflict of interest. AllTenderers found to have a conflict of interest shall bedisqualified. A Tenderer may be considered to have aconflict of interest with one or more parties in thisTendering process, if he/she seeks or has a direct orindirect pecuniary interest with another Tenderer or has adirect or indirect pecuniary interest with a person thatwould conflict with that person’s duties with respect to theprocurement. Conflicts of interest would arise whereTenderers:

a) Are associated or have been associated in the past,directly or indirectly with a firm or any of itsaffiliates which have been engaged by the Authorityto provide consulting services for the preparation ofthe design, specifications and other documents to beused for the goods to be purchased under thisInvitation for Tenders; or

b) Have controlling shareholders in common; or

c) Receive or have received any direct or indirectsubsidy from any of them; or

d) Have the same legal representative for purposes ofthis Tender; or

e) Have a relationship with each other, directly orthrough common third parties, that puts them in aposition to have access to information about orinfluence on the Tender of another Tenderer, orinfluence the decisions of the Authority regardingthis Tendering process; or

f) Submit more than one Tender in this Tenderingprocess, except as an alternative Tender as providedfor under Clause 6.

g) Have the same subcontractors in more than one

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Tender, or as Tenderers and subcontractorssimultaneously; or

h) Participated as a consultant in the preparation of thedesign or technical specifications of the goods andrelated services that are the subject of the Tender.

4. 4.1. Tenderers shall not be eligible to submit a Tender if theyhave been debarred under Section 41 of the PPADA,2015.

4.2. Tenderers shall provide such evidence and information oftheir continued eligibility satisfactory to the Authority,and as the Authority shall reasonably request as specifiedin Clause 3 of the Tender Data Sheet.

5. EligibleGoods andRelatedServices

5.1. All goods and related services to be supplied under thecontract shall have their origin in eligible source countries,and all expenditures made under the contract will belimited to such goods and services.

5.2. For the purposes of this Clause, the term “goods” includescommodities, raw materials, machinery, equipment andindustrial plants, and “related services” includes servicessuch as insurance, installation, training and initialmaintenance.

5.3. For purposes of this Clause, “origin” means the placewhere the goods are produced, manufactured, orprocessed, or through manufacture, process, or assembly,another commercially recognized article results thatdiffers substantially in its basic characteristics from itsimported components or the place from which the relatedservices are supplied.

5.4. The nationality of the firm that produces, assembles,distributes, or sells the goods and services shall notdetermine their origin.

5.5. To establish the eligibility of the supplies and the relatedservices, Tenderers shall fill the country of origindeclarations included in the price schedule for goods andrelated services.

5.6. If so required in Clause 4 of the Tender Data Sheet, theTenderer shall demonstrate that it has been dulyauthorized by the manufacturer/Intellectual property rightsholder of the goods to supply in Kenya, the goodsindicated in its Tender in the format of theManufacturer/Intellectual property rights holder’sAuthorization Form provided.

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Tender documents

9. Content ofTenderdocuments

9.1. The goods required, tendering procedures, and contractterms are prescribed in the Tender documents. Inaddition to the Invitation for Tenders, the Tenderdocuments which should be read in conjunction withany addenda issued in accordance with ITT clause 10.2include:

6. OneTender perTenderer

6.1. A firm shall submit only one Tender in the same tenderingprocess, either individually as a Tenderer or as a partner ina joint venture. However, this does not prevent aTenderer from submitting an Alternative Tender asprovided for under Clause 6.2 below.

6.2. No firm can be a subcontractor while submitting a Tenderindividually or as a partner of a joint venture in the sametendering process.

6.3. A tenderer who submits or participates in more than oneTender (other than as a subcontractor or in cases ofalternatives that have been permitted or requested) willcause all the tenders in which the tenderer has participatedto be disqualified.

7. AlternativeTenders byTenderers

7.1. Tenderers shall submit offers that comply with therequirements of the tender documents, including the basictenderer’s technical design as indicated in thespecifications and Schedule of Requirements.

7.2. Tenderers wishing to offer technical alternatives to therequirements of the tender documents must also submit atender that complies with the requirements of the tenderdocuments, including the basic technical design asindicated in the specifications. In addition to submittingthe basic tender, the tenderer shall provide all informationnecessary for a complete evaluation of the alternative bythe Authority, including technical specifications,breakdown of prices, and other relevant details. Only thetechnical alternatives, if any, of the lowest evaluatedtenderer conforming to the basic technical requirementsshall be considered by the Authority.

8. Cost ofTendering

8.1. The tenderer shall bear all costs associated with thepreparation and submission of its Tender and theAuthority shall in no case be responsible or liable forthose costs, regardless of the conduct or outcome of theTendering process.

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Section I Invitation for TendersSection II Instructions to Tenderers (ITT)Section III Device Management SystemSection IV Tender Data Sheet (TDS)Section V General Conditions of Contract (GCC)Section VI Contract Data Sheet (CDS)Section VII Technical Requirements/Schedule ofRequirementsSection VIII Work Plan and Expected DeliverablesSection IX Tender EvaluationSection X Training, Acceptance and MaintenanceSection XI Tender Forms

a) Form of Tenderb) Price Schedule for Goods and Related Servicesc) Confidential Business Questionnaired) Integrity Declaration Forme) Letter of Notification to Unsuccessful Tenderersf) Letter of Acceptance/Notification of Awardg) Form of Contract

Section XII Forms of Security

a) Tender Security (Bank Guarantee)b) Performance Bank Guaranteec) Manufacturer’s Authorization Form

Section XIII Application to Public ProcurementAdministrative Review Board

a) Form RB 19.2. The number of copies to be completed and returned

with the tender is specified in Clause 6 of the TenderData Sheet.

9.3. The Authority is not responsible for theincompleteness of the Tender documents and theiraddenda, if they were not appropriately obtaineddirectly from the Authority.

9.4. The Tenderer is expected to examine all instructions,forms, terms, evaluation criteria and specifications inthe tender document. Failure to furnish all informationrequired by the tender documents or to submit a tender

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substantially responsive to the tender documents inevery respect will be at the tenderer’s risk and mayresult in the rejection of its tender.

10.Clarifications 10.1. A prospective tenderer requiring any clarification ofthe tendering documents may notify the Authority inwriting by post or email, sent to the Authority’saddress indicated in Clause 7 of the Tender DataSheet

10.2. The Authority will respond in writing to any requestfor clarification promptly provided that such request isreceived no later than the period specified in clause18.1 of the Tender Data Sheet.

10.3. Copies of the Authority's response will be forwarded toall tenderers, including a description of the inquiry, butwithout identifying its source.

10.4. Should the Authority deem it necessary to amend theTender documents either as a result of a clarification,or otherwise it shall do so following the procedureunder ITT Clause 10

11.Amendmentof Tenderdocuments

11.1. Before the deadline for submission of tenders, theAuthority, for any reason, whether at its own initiativeor in response to a clarification requested by aprospective Tenderer, may modify the tenderdocument by issuing addenda.

11.2. Any addendum issued shall be part of the tenderdocument pursuant to Clause 10 above and shall becommunicated in writing to all who have obtained thetender documents as instructed by the Authority.Prospective tenderers shall acknowledge receipt ofeach addendum in writing by post or email to theAuthority.

11.3. In order to allow prospective Tenderers reasonabletime in which to take an addendum into account inpreparing their tenders, the Authority may extend thedeadline for the submission of tenders as necessary,where the time remaining is less than one third of thetime allowed for preparation of tenders.

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Preparation of Tenders12.Language

of Tender12.1. The tender prepared by the tenderer, as well as all

correspondence and documents relating to the tenderexchanged by the tenderer and the Authority shall bewritten in English.

12.2. Supporting documents and printed literature furnished bythe tenderer may be in another language provided theyare accompanied by an accurate translation of thedocuments and printed literature in English and notarizedwhere applicable. For purposes of interpretation of thetender the translated version of the supporting documentsand printed literature shall prevail.

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13.DocumentsConstituting theTender

13.1. The tender prepared by the tenderer shall constitute thefollowing components:

a) Form of tender and a price schedule completed inaccordance with ITT Clauses 15, 16, and 17;

b) Documentary evidence established in accordancewith ITT Clause 14 that the tenderer is eligible totender and is qualified to perform the contract if itstender is accepted;

c) Documentary evidence established in accordancewith ITT sub-Clause 15.2(a) that the tender hasbeen authorized by the manufacturer/Intellectualproperty rights holder to supply the goods andservices into Kenya, where required and where thesupplier is not the manufacturer of those goods;

d) Documentary evidence established in accordancewith ITT Clause 14 that the goods and relatedservices to be supplied by the tenderer are eligiblegoods and services and conform to the tenderdocuments;

e) Tender security furnished in accordance with ITTClause 20;

f) Any other document required14.Documents

EstablishingEligibilityof GoodsandRelatedServicesandConformity toTenderdocuments

14.1. Pursuant to ITT Clause 12, the Tenderer shall furnish, aspart of its Tender, documents establishing the eligibilityand conformity to the tender documents of all goods andrelated services, which the tenderer proposes to supplyunder the contract.

14.2. In the case of imports documentary evidence of theeligibility of the goods and related services shall consistof a statement in the price schedule of the country oforigin of the goods and related services offered, whichshall be confirmed by a certificate of origin issued at thetime of shipment.

14.3. The documentary evidence of conformity of the goodsand related services to the tender documents may be inthe form of literature, drawings, and data as specified inClause 10 of the Tender Data Sheet, and shall consistof:

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a) a detailed description of the essential technical andperformance characteristics of the Goods;

b) an item-by-item commentary on the Authority’stechnical specifications demonstrating substantialresponsiveness of the goods and services to thosespecifications, or a statement of deviations andexceptions to the provisions of the technicalspecifications; and

c) Any other specific documentation requirement asstated in Clause 10 of the Tender Data Sheet.

14.4. The tenderer shall also furnish a list giving fullparticulars, including available sources and current pricesof goods, spare parts, special tools, etc., necessary for theproper and continued functioning of the system duringthe period specified in Clause 10 of the Tender DataSheet following commencement of the use of the goodsby the Authority.

14.5. For purposes of the commentary to be furnished pursuantto Clause 13.3(c) above, the tenderer shall note thatstandards for workmanship, material, and equipment, aswell as references to brand names or catalogue numbersdesignated by the Authority in its technicalspecifications, are intended to be descriptive only and notrestrictive. The tenderer may substitute alternativestandards, brand names, and/or catalogue numbers in itstender, provided that it demonstrates to the Authority’ssatisfaction that the substitutions ensure substantialequivalence to those designated in the technicalspecifications.

14.6. The required documents, supporting documents andprinted literature shall be printed in English.

15.DocumentsEstablishingEligibilityandQualification of theTenderer

15.1. Pursuant to ITT Clause 13.1, the tenderer shall furnish, aspart of its tender, documents establishing the tenderer’seligibility to tender and its qualifications to perform thecontract if its tender is accepted.

15.2. The documentary evidence of the tenderer’squalifications to perform the contract if its tender isaccepted shall establish to the Authority’s satisfaction:a) that in the case of a tenderer offering to supply goods

under the contract which the tenderer did not

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manufacture or otherwise produce, the tenderer hasbeen duly authorized by the goods’manufacturer/Intellectual property rights holder tosupply the goods in Kenya;

b) that the tenderer has the financial, technical, andproduction capability necessary to perform thecontract, meets the qualification criteria specified inClause 11 of the Tender Data Sheet, and has asuccessful performance history in accordance withcriteria specified in Clause 11 of the Tender DataSheet.

c) that, in the case of a tenderer not doing businesswithin Kenya, the tenderer is or will be (if awardedthe contract) represented by an Agent in Kenya;equipped and able to carry out the Supplier’smaintenance, repair and any other obligationsprescribed in the General Conditions of Contractand/or Technical Specifications; and

d) that the tenderer meets the qualification criteria listedin Clause 11 of the Tender Data Sheet.

15.3. When tendering for the project, the tenderer must provideevidence that it meets or exceeds the requirements withregard to:-

a) Average annual turnover;b) Particular experience including key production

rates;c) Financial means, etc.;d) Personnel capabilities; ande) Equipment capabilities.

16.Form ofTender

16.1. The tenderer shall fill the form of tender furnished in thetender documents, which shall be enclosed in thefinancial proposal of the tender.

16.2. The tender form must be completed without anyalterations to its format and no substitute shall beaccepted.

17.TenderPrices anddiscounts

17.1. The tender prices and discounts quoted by the tenderer inthe form of tender and in the price schedules shallconform to the requirements specified in the schedule ofrequirements.

17.2. Unless otherwise indicated in Clause 12 of the Tender

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Data Sheet, all items in the Schedule of Requirementsmust be listed and priced separately in the PriceSchedules. If a Price Schedule shows items listed but notpriced, the tender will be rejected as being substantiallynon-responsive. Items not listed in the Price Scheduleshall be assumed to be not included in the tender and thetender will be rejected as being substantially non-responsive.

17.3. The Tender price to be quoted in the Tender Form inaccordance with Clause 17.1 above shall be the totalprice of the tender, excluding any discounts offered.

17.4. The Tenderer shall quote any unconditional discountsand the methodology for their application in the TenderForm

17.5. The Tenderer shall indicate on the appropriate PriceSchedule the unit prices (where applicable) and totaltender price of the goods and services it proposes tosupply under the contract

17.6. Prices indicated on the price schedule shall be enteredseparately in the following manner:

a) For goods offered from within Kenya:i) The price of the goods quoted shall include all

duties and other applicable taxes payable; andii) The price for inland transportation, insurance, and

other local costs incidental to delivery of the goodsto their final destination, if specified in Clause 12of the Tender Data Sheet;

b) For goods offered from abroad:

i) The price of the goods shall be quoted using theINCOTERM (International Commercial Termrules) specified in Clause 12 of the TenderData Sheet; and

ii) The price for inland transportation, insurance, andother local costs incidental to delivery of the goodsfrom the port of entry to their final destination, ifspecified in Clause 12 of the Tender Data Sheet.

17.7. Prices proposed on the Price Schedule for goods andrelated services shall be disaggregated. Thisdisaggregation shall be solely for the purpose offacilitating the comparison of tenders by the Authority.

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This, shall not in any way limit the Authority’s right tocontract on any of the terms offered:-

a) For Goods:-i) The price of the Goods, quoted in INCOTERMS as

specified in Clause 12 of the Tender Data Sheet;ii) All customs duties, value added tax, and other

taxes applicable on the goods or on thecomponents and raw materials used in theirmanufacture or assembly, if the contract isawarded to the tenderer; and

b) For Related Servicesi) The price of the related services,ii) All customs duties, value added tax, and other

taxes applicable in Kenya, paid or payable, on therelated services, if the contract is awarded to thetenderer; and

iii)The total price for the item.17.8. Prices quoted by the tenderer shall be fixed during the

tenderer’s performance of the contract and not subject tovariation on any account, unless otherwise specified inClause 12 of the Tender Data Sheet. A Tendersubmitted with an adjustable price quotation will betreated as non-responsive and shall be rejected, pursuantto ITT Clause 28.

18.TenderCurrencies

18.1. Prices shall be quoted as specified in Clause 13 of theTender Data Sheet.

18.2. For the purposes of evaluating the tenders, the Authorityshall convert currencies as specified in Clause 13 of theTender Data Sheet.a) For purposes of evaluating Tenders, the Authority

shall fix exchange rates for the nominated foreigncurrency by foreign or international Tenderers fromeligible countries.

b) In fixing the exchange rates for the nominatedcurrencies indicated in Clause 13 of the Tender DataSheet, the Authority shall use ruling mean rateobtained from the Central Bank of Kenya (Website:http://www.centralbank.go.ke for more information)on the date of the Tender closing/opening.

http://www.centralbank.go.ke/

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c) The fixed exchange rate, which shall be indicated inClause 13 of the Tender Data Sheet by theAuthority, is for purposes of evaluation of tendersONLY.

d) The rates of exchange to be used by the Tenderer inarriving at the local currency equivalent and theproportions mentioned in Clause 17 above shall be theselling rates for similar transactions established by theCentral Bank of Kenya prevailing on the datespecified in Clause 13 of the Tender Data Sheet.

e) These exchange rates shall be adjusted for allpayments so that no exchange risk will be borne bythe Tenderer. If the Tenderer uses other rates ofexchange, the provisions of ITT sub-Clause 31.3 shallapply. In any case, payments will be computed usingthe rates quoted in the tender.

19.TenderValidityPeriod

19.1. Tenders shall remain valid for the period specified inClause 14 of the Tender Data Sheet after the tendersubmission deadline prescribed by the Authority,pursuant to ITT Clause 22. A Tender valid for a shorterperiod shall be rejected by the Authority as non-responsive.

19.2. In exceptional circumstances, prior to the expiration ofthe Tender validity period, the Authority shall requestthat the Tenderers consent to an extension of the periodof validity of their Tenders. The request and theTenderers responses shall be made through electronicmail and/or confirmed in writing. The Tender securityprovided under ITT Clause 20 shall also be extended asappropriate.

A Tenderer may refuse the request without forfeiting itstender security. A Tenderer agreeing to the request willnot be required nor permitted to modify its tender, butwill be required to extend the validity of its tendersecurity for the period of the extension, and incompliance with ITT Clause 20 in all respects.

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20.TenderSecurity

20.1. In addition, pursuant to ITT Clause 12, if specified inClause 15 of the Tender Data Sheet, the Tenderer shallfurnish as part of its Tender a Tender Security in originalform and in the amount and currency specified in Clause15 of the Tender Data Sheet.

20.2. The Tender security shall be denominated in the currencyof the Tender and shall be in form of a bank guaranteeissued by a bank legally operating in Kenya as specifiedin Clause 15 of the Tender Data Sheet.

20.3. Any Tender security must be valid for a period of at least30 (Thirty) days after the expiry of the tender validityPeriod. The Authority shall be at liberty to request thesuccessful tenderer to extend the validity of the tendersecurity during contract negotiations to ensure that thetender security does not expire before the performancesecurity is granted.

20.4. The tender security shall be payable promptly uponwritten demand by the Authority in case any of theconditions listed in Clause 20.7 below are invoked.

20.5. Unsuccessful Tenderers’ tender security will bedischarged or returned as promptly as possible but notlater than the expiration of the period of tender validityprescribed by the Authority pursuant to ITT Clause 19.

20.6. The successful Tenderer’s Tender security will bedischarged upon the Tenderer signing the contractpursuant to ITT Clause 37, on furnishing the performancesecurity, pursuant to ITT Clause 38.

20.7. The Tender security shall be forfeited if a Tenderer:

a) Withdraws its Tender during the period of Tendervalidity specified in ITT Clause 19.1 above exceptas provided for in Clause 19.2 above; or

b) Does not accept the correction of errors pursuant toClause 28.2 below; or

c) In the case of a successful Tenderer, if the Tendererfails:

i) To sign the contract in accordance with ITTClause 38; or

ii) To furnish performance security in accordance

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with ITT Clause 39.21.Format

andSigning ofTender

21.1. The Tenderer shall prepare copies of the tender asspecified in Clause 6 of the Tender Data Sheet.

21.2. The original and the copies of the Tender shall be typedor written in indelible ink and shall be signed by theTenderer or a person or persons duly authorized to signon behalf of the Tenderer. This authorization shallconsist of a written confirmation and shall be attached tothe Tender. The name and position held by each personsigning the authorization must be typed or printed belowthe signature. All pages of the Tender, except for un-amended printed literature, shall be initialled by theperson or persons signing the Tender.

21.3. Any interlineations, erasures, or overwriting shall bevalid only if they are signed or initialled by the person orpersons signing the Tender.

Submission of Tenders

22.Sealing andMarking ofTenders

22.1. The Tenderer shall seal the original and each copy ofthe Tender in separate envelopes, duly marking theenvelope containing the original tender as“ORIGINAL” and duly marking the envelopecontaining the copy as “COPY.” The above-referenced envelopes shall then be sealed in an outerenvelope securely sealed in such a manner thatopening and resealing cannot be achieved undetected.

22.2. The inner and outer envelopes shall:

a) Be addressed to the Authority at the address given inClause 17 of the Tender Data Sheet; and

b) Bear the tender name indicated in Clause 17 of theTender Data Sheet, the Invitation for Tenders titleand number indicated in Clause 17 of the TenderData Sheet, and a statement: “DO NOT OPENBEFORE” the time and the date specified in Clause23.1 below.

22.3. In addition to the identification required in Clause 22.2above, the inner envelopes shall also indicate the nameand address of the Tenderer to enable the Tender to bereturned unopened in case it is declared “late” pursuantto ITT Clause 23 and for matching purpose under ITT

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Clause 24.22.4. If all envelopes are not sealed and marked as required

in Clause 11.2 above, The Authority will assume noresponsibility for the misplacement or prematureopening of Tender.

23.Deadline forSubmissionof Tenders

23.1. Tenders shall be received by the Authority at theaddress specified under Clause 22.2 above no laterthan the date and time specified in Clause 18 of theTender Data Sheet.

23.2. The Authority may, in exceptional circumstances andat its discretion, extend the deadline for the submissionof Tenders by amending the Tender documents inaccordance with ITT Clause 11, in which case allrights and obligations of the Authority and Tendererspreviously subject to the deadline will thereafter besubject to the new deadline.

23.3. The extension of the deadline for submission ofTenders shall not be made later than the periodspecified in Clause 18 of the Tender Data Sheetbefore the expiry of the original deadline.

24.Late Tenders 24.1. The Authority shall not consider for evaluation anyTender that arrives after the deadline for submission ofTenders.

24.2. Any Tender received by the Authority after thedeadline for submission of Tenders shall be declaredlate, rejected and returned unopened to the Tenderer.

25.Modification,SubstitutionandWithdrawalof Tenders

25.1. A Tenderer may modify, substitute or withdraw itsTender after it has been submitted, provided thatwritten notice of the modification, substitution orwithdrawal of the Tender, is received by the Authorityprior to the deadline for submission of Tenders.

25.2. The Tenderer’s modification, substitution orwithdrawal notice shall be prepared, sealed, marked,and dispatched in accordance with the provisions ofITT Clauses 21 and 22 with the outer and innerenvelopes additionally marked “MODIFICATION”“SUBSTITUTION” or “WITHDRAWAL” asappropriate. The notice may also be sent by electronicmail but followed by a signed confirmation copy,postmarked not later than the deadline for submissionof Tenders.

25.3. Tenders may only be modified by withdrawal of one ormore pages of the original Tender and submission of

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replacement pages of the Tender in accordance withClause 25.1 above. Modifications submitted in anyother way shall not be taken into account in theevaluation of Tenders. Each modified page must bemarked “MODIFIED” with the date of modification.

25.4. Tenderers may only offer discounts to or otherwisemodify the prices of their Tenders by substitutingTender modifications in accordance with this Clause orincluded in the original Tender submission.

25.5. No Tender may be withdrawn, replaced or modified inthe interval between the deadline for submission ofTenders and the expiration of the period of Tendervalidity specified by the Tenderer on the Form ofTender. Withdrawal of a Tender during this intervalshall result in the Tenderer’s forfeiture of its Tendersecurity pursuant to the ITT Clause 20.7.

Opening and Evaluation of Tenders26.Opening of

Tenders26.1. The Authority will open all Tenders including

modifications, substitutions or withdrawal noticesmade pursuant to ITT Clause 25, in public, in thepresence of tenderers or their representatives whochoose to attend, and other parties with a legitimateinterest in the tender proceedings at the place, on thedate and at the time, specified in Clause 19 of theTender Data Sheet. The Tenderers’ representativespresent shall sign a register as proof of theirattendance.

26.2. Where it is stated in the Tender Data Sheet thattechnical and financial proposals shall be submittedin separate envelopes, only the technical envelopewill be opened at the initial opening of Tenders. Thefinancial envelope will be opened followingtechnical evaluation and only in respect of thoseoffers that pass the technical evaluation.Envelopes marked “WITHDRAWAL” shall beopened and read out. Tenders for which anacceptable notice of withdrawal has been submittedpursuant to ITT Clause 25 shall not be opened butreturned to the Tenderer. If the withdrawal envelopedoes not contain a copy of the “Power of Attorney”confirming the signature of the person dulyauthorized to sign on behalf of the Tenderer, the

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corresponding Tender will be opened. Subsequently,all envelopes marked "MODIFICATION" shall beopened and the submissions therein read out inappropriate detail. Thereafter all envelopes marked“SUBSTITUTION” shall be opened and thesubmissions therein read out in appropriate detail.

26.3. All other envelopes shall be opened one at a time.The tenderers’ names, the presence or absence ofTender security, and such other details as the TenderOpening Committee may consider appropriate, willbe announced by the Secretary of the TenderOpening Committee at the opening. If technicalevaluation precedes the opening of financial offers,no prices will be read out at the opening of thetechnical offers.

26.4. Tenders or modifications that are not opened and notread out at the tender opening shall not be consideredfurther for evaluation, irrespective of thecircumstances.

26.5. Tenderers are advised to send in a representativewith knowledge of the content of the tender whomay verify where necessary the information read outfrom the submitted documents.

26.6. No tender will be disqualified at tender openingexcept for late tender submissions which shall berejected and returned unopened to the Tenderer,pursuant to ITT Clause 24.

26.7. The Secretary to the Tender Opening Committeeshall prepare minutes of the tender opening. Therecord of the Tender opening attendees shall be inthe Tender Opening Register and shall include, as aminimum: the name of the Tenderer and whether ornot there is a withdrawal, substitution ormodification, pursuant to ITT clause 25.3 and thepresence or absence of a tender security.

26.8. The Tenderers’ representatives present at the tenderopening shall be requested to record their presenceby signing the Tender Opening Register. Anomission of a Tenderer’s representative’s signatureon the register shall not invalidate the contents andaffect the record.

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26.9. A copy of the minutes of the Tender opening shall befurnished to individual Tenderers upon writtenrequest.

27.Confidentiality 27.1. Information relating to the examination, clarification,evaluation and comparison of Tenders andrecommendation of contract award shall not bedisclosed to tenderers or any other persons notofficially concerned with such process until theaward to the successful tenderer has beenannounced.

27.2. Any effort by a tenderer to influence the processingof tenders or award decisions by the Authority shallresult in automatic disqualification.

28.Clarificationof Tenders

28.1. To assist in the examination, evaluation andcomparison of tenders and post-qualification of theTenderers, the Authority may, at its discretion, askany Tenderer for a clarification of its Tender. Anyclarification submitted by a Tenderer that is not inresponse to a request by the Authority shall not beconsidered.

28.2. The request for clarification and the response shallbe in writing by letter or email but no change in theprice or substance of the Tender shall be sought,offered, or permitted except as required to confirmthe correction of arithmetic errors discovered by theEvaluation Committee in the evaluation of theTenders in accordance with ITT Clause 31.

28.3. From the time of tender opening to the time ofcontract award, if any Tenderer wishes to contact theAuthority on any matter related to the Tender theyshould do so in writing.

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29.PreliminaryExaminationof Tenders

29.1. Prior to the detailed evaluation of tenders, theAuthority, through its Evaluation Committee, shallfirst conduct a preliminary evaluation of tenders todetermine whether:

Each tender has been submitted in the requiredformat;

Any tender security submitted is in therequired form, amount and validity period;

The tender has been signed by the personlawfully authorized to do so;

The required number of copies of the tenderhave been submitted;

The tender is valid for the period required; and

All required documents and information havebeen submitted.

The Authority’s determination of a Tender'sresponsiveness will be based on the above andmandatory evaluation criteria as set out in Section IXof the tender document- Evaluation criteria

29.2. A responsive tender is one which conforms to all theterms, conditions, and specifications of the tenderingdocuments, without material deviation from therequirements set out in the tender documents. Amaterial deviation is one that:-

a) affects in any substantial way, the scope,quality, or performance of the services;

b) limits in any substantial way, the Authority's rights or the Tenderers obligations underthe contract;

c) is inconsistent with the Tender documents;or

d) if rectified, would affect unfairly thecompetitive position of other Tendererspresenting responsive Tenders.

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29.3. The Authority will confirm that the documents andinformation specified under ITT Clauses 13, 14 and15 have been provided in the Tender. If any of thesedocuments or information is missing, or is notprovided in accordance with the Instructions toTenderers, the Tender shall be rejected.

29.4. The Authority may waive any minor informality,nonconformity, or irregularity in a Tender whichdoes not constitute a material deviation, providedsuch waiver does not prejudice or affect the relativeranking of any Tenderer.

29.5. A non-responsive tender will be rejected by theAuthority and may not subsequently be maderesponsive by the Tenderer by correction of thenonconformity.

30.TechnicalEvaluation

30.1. The Authority shall examine the Tender to confirmthat all terms and conditions specified in the GeneralConditions of Contract and the Contract Data Sheethave been accepted by the Tenderer without anymaterial deviation.

30.2. The Authority shall evaluate the technical aspects ofthe Tender submitted in accordance with ITT Clause14, to confirm that all requirements specified inSection VII – Schedule of Requirements of theTender documents and Section VII – TechnicalSpecifications have been met without materialdeviation.

30.3. If after the examination of the terms and conditionsand the technical evaluation, the Authoritydetermines that the Tender is not technicallyresponsive in accordance with ITT Clause 29, it shallreject the Tender.

31.FinancialEvaluation

31.1. Tenders determined to be responsive will be checkedfor any arithmetic errors. Errors will be corrected asfollows:-

a) If there is a discrepancy between unit pricesand the total price that is obtained by multiplyingthe unit price and quantity, the unit price shallprevail, and the total price shall be corrected;

b) If there is an error in a total corresponding tothe addition or subtraction of subtotals, the

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subtotals shall prevail and the total shall becorrected; and

c) Where there is a discrepancy between theamounts in figures and in words, the amount inwords will govern.

31.2. The amount stated in the Tender will be adjusted bythe Authority in accordance with the aboveprocedure for the correction of errors and, with, theconcurrence of the Tenderer, and shall be consideredas binding upon the Tenderer. If the Tenderer doesnot accept the corrected amount, their Tender willthen be rejected, and the Tender security shall beforfeited.

31.3. To facilitate evaluation and comparison, theAuthority will convert all Tender prices expressed inthe various currencies in which they are payable toKenya Shilling at the selling exchange rateestablished for similar transactions by the CentralBank of Kenya as specified in ITT sub-clause 17

31.4. The source of the exchange rate shall be the CentralBank of Kenya. The currency selected for convertingTender prices to a common base for the purpose ofevaluation, along with the date of the exchange rate,are specified in Clause 20 of the Tender DataSheet.

31.5. The Authority shall evaluate and compare only theTenders determined to be responsive, pursuant toITT Clause 29.

31.6. The Authority’s evaluation of a Tender will includeand take into account:

a) In the case of goods manufactured in Kenya orgoods of foreign origin already located in Kenya,VAT and other similar taxes, which will bepayable on the goods if a contract is awarded tothe Tenderer; and

b) In the case of goods of foreign origin offeredfrom abroad, customs duties and other similarimport taxes including value added taxes whichwill be payable on the goods if the contract isawarded to the Tenderer.

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31.7. The comparison of tenders shall be on the total priceof the goods and services offered. Such price toinclude all costs, as well as duties and taxes payableon all components and raw material to beincorporated in the goods and services includingInland transportation, Insurance and incidentals.

31.8. In evaluating the Tenders, the Evaluation Committeewill, in addition to the Tender price quoted inaccordance with ITT Clause 17, take account of theevaluation criteria specified in Clause 20 of theTender Data Sheet.

32.Post-qualificationof Tenderer

32.1. If specified in Clause 21 of the Tender Data SheetPost-qualification shall be undertaken by theAuthority prior to award of the tender.

32.2. The Authority will determine to its satisfactionwhether the Tenderer that is selected as havingsubmitted the lowest evaluated responsive Tender isqualified to perform the contract satisfactorily, inaccordance with the criteria listed in ITT Clauses 14and 15 above.

32.3. The determination will take into account theTenderer’s financial, technical, and productioncapabilities. It will be based upon an examination ofthe documentary/physical evidence of the tenderer’squalifications submitted by the Tenderer, as well assuch other information as the Authority deemsnecessary and appropriate.

32.4. An affirmative determination/due diligence will be aprerequisite for award of the contract to the tenderer.A negative determination will result in rejection ofthe tenderer’s tender, in which event the Authoritywill proceed to the next lowest evaluated Tender tomake a similar determination of that tenderer’scapabilities to perform satisfactorily.

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Award of Contract33.Criteria of

Award33.1.The Authority will award the tender to the tenderer

whose tender has been determined to be responsive tothe tender documents and who has offered the lowestevaluated tender price, provided that:

a) the Tenderer has been determined to be Eligible inaccordance with the provisions of ITT Clause 3;

b) the Tenderer has been determined to be qualified toperform the contract satisfactorily; and

c) successful negotiations have been concluded, if any.34.Procuring

Entity’sRight toAccept anyTender,Reject allTenders andtoTerminateProcurement Proceeding

34.1.The Authority reserves the right to accept or reject anyTender, all tenders and to terminate all procurementproceedings at any time prior to notification of tenderaward, without incurring any liability to the affectedTenderer(s).

34.2.Notice of the Termination of procurement proceedingsshall promptly be given to all Tenderers.

34.3.The Authority shall upon request communicate to anytenderer the grounds for its termination of theprocurement proceedings within 14 days from the dateof request.

35.ProcuringEntity’sRight toPre-ContractVariation ofQuantities

35.1.The Authority reserves the right at the time of tenderaward to increase or decrease the quantity of goods orrelated services originally specified in these Tenderdocuments (schedule of requirements) provided thisdoes not exceed the percentage indicated in the TenderData Sheet, without any change in unit price or otherterms and conditions of the Tender and Tenderdocuments.

36.Notificationof Award

36.1.The Tenderer whose Tender has been accepted will benotified of the award by the Authority prior to expirationof the Tender validity period by e-mail and confirmedby registered letter. This letter (hereinafter and in theConditions of Contract called the "Letter ofAcceptance") will state the sum that the Authority willpay the Tenderer in consideration of the supply of goodsand services as prescribed by the Contract (hereinafterand in the Contract called the "Contract Price”).

36.2.The notification of award will constitute the formationof the Contract, subject to the tenderer furnishing thePerformance Security in accordance with ITT Clause 39and signing of the contract in accordance with ITT

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Clause 38.2 below.

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36.3.At the same time as the person submitting the successfultender is notified, the Authority will notify eachunsuccessful tenderer, the name of the successfultenderer and the contract amount and will discharge thetender security of the tenderers if it was required in theprocurement proceedings.

36.4.If, after notification of award, a Tenderer wishes toascertain the grounds on which their tender wasunsuccessful, it should address its request to theAccounting Officer as specified in in Clause 7 in theTender Data Sheet who shall, within fourteen (14) daysafter a request, provide written reasons as to why thetender was unsuccessful. However, failure to take thisopportunity to clarify the grounds for rejection does notaffect the tenderer’s right to seek immediate review bythe Public Procurement Administrative Review Boardunder ITT Clauses 42 and 43 below.

37.Post TenderConcurrence

37.1.Limited consultations may be undertaken with thesuccessful tenderer relating to the following areas:-

a) minor alteration to the technical details of thestatement of requirements;

b) minor amendment to the contract data sheet;c) affirming payment schedule and arrangements;d) finalising delivery schedule and arrangements; ore) any other details that were not apparent or could not

be finalised at the time of Tendering.37.2.Where limited consultations fail to realise concurrence

necessary to result into an agreement, the Authority mayinvite the next ranked Tenderer for consultations. Whereconsultations are commenced with the next rankedTenderer, the Authority shall not revisit failedconsultations with other tenderers.

38.Signing ofContract

38.1.Promptly after notification, the Authority shall send thesuccessful Tenderer the agreement and Contract DataSheet, incorporating all agreements between the partiesobtained as a result of contract negotiations.

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38.2.Within the period specified in the notification or TenderData Sheet but not less than fourteen (14) days sincenotification of award of contract, the successfulTenderer shall sign and date the contract and return it tothe Authority. No contract is formed between the personsubmitting the successful tender and the Authority untilthe written contract is entered into and signed by allparties.

39.PerformanceSecurity

39.1.The successful Tenderer shall within twenty one (21)days, but no earlier than fourteen (14) days, after receiptof the Letter of Acceptance (Notification of Award),deliver to the Authority a Performance Security in theamount and in the form stipulated in the Tender DataSheet and the Contract Data Sheet.

39.2.The Performance Security provided by the successfulTenderer shall be in the form of a Bank Guarantee. Theissuing bank must be legally operating in Kenya.

39.3.Failure of the successful Tenderer to comply with therequirement of Clause 39.1 above shall constitutesufficient grounds for the annulment of the award andforfeiture of the Tender Security, and may result into arequest for debarment by PPRA.

40.Fraud andCorruption

40.1.The Authority as well as Tenderers shall observe thehighest standard of ethics during the procurement andexecution of the resultant contract. For the purpose ofthis provision, the following definitions are provided:-

“Corrupt practice” includes the offering, giving,receiving or soliciting of anything of value to influencethe action of a public official in the procurement ordisposal process or in contract execution;

“Fraudulent practice” includes a misrepresentation offact in order to influence a procurement or disposalprocess or the exercise of a contract to the detriment ofthe Authority and includes collusive practices amongstTenderers prior to or after Tender submission designedto establish Tender prices at artificial non-competitivelevels and deprive the Authority of the benefits of freeand open competition;

“Collusive practice” means an arrangement betweentwo or more suppliers, contractors and subcontractors

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designed to achieve an improper purpose, including toinfluence improperly the actions of the Authority priorto or after Tender submission, designed to establishTender prices at artificial non-competitive levels and todeprive the Authority of the benefit of free and opencompetition;

“Coercive practice” means impairing or harming, orthreatening to impair or harm, directly or indirectly asupplier, contractor or subcontractor or the property ofeither to influence improperly the actions of theAuthority;

“Obstructive practice” means deliberately destroying,falsifying, altering or concealing of evidence material tothe investigation or making false statements toinvestigators in order to materially impede aninvestigation into allegations of a corrupt, fraudulent,coercive or collusive practice; and /or threatening,harassing or intimidating any party to prevent it fromdisclosing its knowledge of matters relevant to theinvestigation or from pursuing the investigation.

The Authority shall reject a tender for award if itdetermines that the Tenderer recommended for awardhas engaged in any of the above practices in competingfor the contract;

The Authority shall cancel the contract for goods andrelated services if at any time it is determined thatcorrupt or fraudulent practices were engaged in byrepresentatives of the Authority and the Supplier orContractor.

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Review of Procurement Decisions41.Right to

Review41.1.A Tenderer who claims to have suffered or risks suffering

loss or damage or injury as a result of breach of a dutyimposed on the Authority by the PPADA, 2015 may lodgean appeal at the Public Procurement AdministrativeReview Board. The following matters, however, shall notbe subject to administrative review:

a) The choice of procurement method;b) A decision by the Authority to reject all tenders,c) Where a contract is signed in accordance with ITT

Clause 38 above; andd) Where an appeal is frivolous.

42.Time Limiton Review

42.1.The Tenderer shall submit an application for review in thenumber of copies and pay fees as prescribed by regulationswithin fourteen (14) days of the Tenderer becoming orshould have become aware of the circumstances giving riseto the complaint or dispute.

43.SubmissionofApplications forReview bythe PublicProcurementAdministrative ReviewBoard

43.1.Any application for administrative review shall besubmitted in writing to the Secretary, Public ProcurementAdministrative Review Board on Form RB 1 (which maybe downloaded from the PPRA website) at an addressspecified in the Tender Data Sheet.

43.2.The format for the application for administrative reviewshall include:

a) Reasons for the complaint, including any allegedbreach of the Public Procurement and Asset DisposalAct;

b) An explanation of how the provisions of theaforementioned Act or provision has been breached oromitted, including the dates and name of theresponsible public officer, where known;

c) Statements or other evidence supporting the complaintwhere available as the applicant (tenderer) considersnecessary in support of their request;

d) Remedies sought; and

e) Any other information relevant to the complaint.44.Decision by

the Public44.1.Upon completing a review the Review Board may do any

one or more of the following —

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ProcurementAdministrative ReviewBoard

(a) annul anything the Authority has done in theprocurement proceedings, including annulling theprocurement proceedings in their entirety;(b) give directions to the Authority with respect to anythingto be done or redone in the procurement proceedings;(c) substitute the decision of the Review Board for anydecision of the Authority in the procurement proceedings;or(d) Order the payment of costs as between parties to thereview.

45. 45.1.The decision of the Administrative Review Board shall befinal unless the Tenderer institutes Judicial Reviewproceedings in the High Court of Kenya.

46.JudicialReview

46.1.A decision made by the Review Board shall, be final andbinding on the parties unless judicial review thereofcommences within fourteen (14) days from the date of theReview Board’s decision.

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SECTION III: DEVICE MANAGEMENT SYSTEM

1. Introduction

In an effort to address the challenges associated with the proliferation of illegalcommunication devices connected to the public telecommunications networks,the Authority intends to establish a system that will facilitate identification andbarring of the use of such illegal devices.

To achieve this, the Authority wishes to engage a suitable firm to design, supply,deliver, install, commission and maintain a Device Management System (DMS).The said DMS will be used to inter alia:-

i. identify all active devices on the public telecommunications networks andisolate illegal communication devices;

ii. create and maintain a whitelist (hereinafter called CA-Whitelist) oflegitimate communication devices; and

iii. ensure that only devices on the CA-white list shall have access to publictelecommunications networks

2. Illegal Communication DevicesFigure 1 is a flowchart of the proposed action of the DMS towards themanagement of illegal communications devices.

Figure 1: Management of Illegal Devices

The devices identified as illegal in Kenya include:

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2.1. SIM Boxes

The DMS is expected to address fraud related arrangements undertaken throughSIM boxes. In this tender document, a SIM box is defined as an illegal Internetgateway aimed at illegally terminating international traffic onto the publictelecommunications networks.

Tenderers are therefore expected to: -i. implement a suitable methodology of detecting and disabling SIM boxing

activities in any of the public telecommunications networks in Kenya;ii. provide techniques of identifying the geographical location of active SIM

boxes in use within Kenya; andiii. outline the technical configurations in relation to MNOs or MVNOs in

order to achieve the objective of detecting and disabling SIM boxingactivities

2.2. Counterfeit Devices

A counterfeit device is one that explicitly infringes the trademark or design of alegally registered and patented device. Handling of any counterfeit product,including counterfeit communication devices is prohibited in Kenya underSection 32 of the Anti-Counterfeit Act, 2008.

Some of the other agencies that have a role in combating counterfeiting includethe Anti-Counterfeit Agency (ACA), the Kenya Bureau of Standards (KeBS),the Kenya Revenue Authority (KRA), Kenya Industrial Property Institute(KIPI), and the National Police Service (NPS). The Authority intends to partnerwith these Agencies in the eradication of counterfeit communication devices. Itis intended that the DMS will provide for Graphical User Interfaces (GUIs) tothese agencies in order for them to access the DMS resources via web interface.The DMS should be capable of handling at least five (5) simultaneous userinteractions from each of these government agencies. The UI for KRA isdescripted elsewhere in this tender document.

IMEIs of counterfeit devices are either not standard in accordance with GSMAIMEI format or are copies of genuine IMEIs (cloned).

DMS should be capable ofi. identifying all counterfeit devices on the public telecommunications

networksii. isolating the counterfeit devices as illegal devices

iii. removing counterfeit device from the global list upon expiry of allowedlimited period and termination of access to services

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iv. handling at least five (5) simultaneous user interactions from each of theagencies collaborating on the DMS

v. sending a customized SMS to the subscribers identified as using acounterfeit device with a warning on the illegality of their communicationdevice

Tenderers are expected to implement a suitable methodology of how DMS willdeny communication services to counterfeit communication devices. Tenderersare expected to outline the resources they may require from the MNOs andMVNOs in order to achieve this objective.

DMS should also have the capability of enabling subscribers to query the systemby means of short message services (SMS) and web Interface, plus any othersuitable method to check the authenticity of their device. Furthermore, aconsumer intending to purchase a new communication device should be able toquery the DMS by providing the IMEI of the device. DMS should return themodel of the communication device and its type approval status.

2.3. Non-Type Approved and/or Substandard Devices

The Authority is charged with the responsibility of type approving allcommunication devices before their use in Kenya. The use of a communicationdevice, which is not type approved by the Authority, is illegal.

The procedures and requirements for type approval are contained in the KenyaInformation and Communications (Import, Type Approval and Distribution ofCommunications Equipment) Regulations, 2010. These Regulations are underreview and the proposed amendments are contained in the “First Draft - KenyaInformation and Communications Type Approval Importation and Distributionof Communications Equipment Regulations 2015” which is available on theAuthority’s website www.ca.go.ke/index.php/public-consultations.

The DMS should be capable of and indeed utilize the IMEI to identify non-typeapproved communication devices. IMEI is a 15 or 17 digit sequence of numbers.

Figure 2 shows the 15 digits IMEI structure as specified in 3GPP TS 23.003.

http://www.ca.go.ke/index.php/public-consultations

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The Authority’s type approval process identifies and records the TAC (TypeAllocation Code) of the communication device.The DMS should;

i. utilize the TAC list to generate the CA white listii. provide at least five (5) user accounts for Kenya Bureau of Standards

(KeBS) and allow them to work simultaneously. KeBS users should alsohave the capability to download relevant information.

Substandard communication devices are prohibited under Section 9 of theStandards Act, CAP 496 of the laws of Kenya. KeBS is the agency charged withthe responsibility of enforcing this Act.

2.4. Stolen/Lost Devices

In case of lost/stolen devices the owner is required by law to report the loss/theftof the device to the National Police Service (NPS) and obtain a relevant policeabstract. The owner subsequently presents the police abstract to his/her serviceprovider. The service provider is then required to blacklist the IMEI of the stolendevice on its Equipment Identity Register (EIR) and deny it services.

Handling of stolen mobile devices is a crime under Section 322 of the PenalCode. Stolen/lost mobile devices are likely to be used for criminal acts includingterrorism. NPS is charged with the responsibility of handling cases relating tostolen communication devices.

The DMS should, therefore, link to the service provider’s EIR and use theinformation to isolate stolen/lost communication devices from CA-Whitelist. Inorder to provide an opportunity for NPS to trace the stolen device, the DMSshould be capable of providing access to all relevant activity log pertaining tosuch a device.

Tenderers are expected to propose methodology of how DMS will handlestolen/lost communication devices. Tenderers are expected to outline theresources, they may require from the MNOs and MVNOs in order to achievethis objective.

3. New Communication Devices

Imported communication devices are expected to be declared to the KenyaRevenue Authority (KRA) at the port of entry.

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The Authority intends to provide KRA with access to DMS so as to enter IMEIsof all imported communication devices. DMS should allow for at least 10simultaneous KRA user interactions for this purpose. DMS should provideaccess to KRA to capture IMEI details of the imported communication devicesand the persons importing them, both for personal use and bulk consignmentsfor sale.

The DMS will analyse the IMEI data from KRA to ensure that the importedcommunication devices are:

i) type approved,ii) do not exist in the CA-Whitelist, andiii) are not reported as stolen/lost.

The proposed system will seek to capture the details of imported communicationdevices. Tenderers are expected to suggest innovative and automated methodssuch as the use of OCR scanners in order to achieve this objective.

4. Change of Device Ownership

It is a common practise in Kenya for communication devices to changeownership either through sale or as gifts. People borrow communication devicesfor temporary use and return the same to the owner. These actions change thetriplet dataset.

The proposed DMS should be capable of handling the permanent transfer ofownership of communication devices. Tenderers are also expected to implementa suitable methodology of handling the temporary datasets created whencommunication devices are borrowed.

5. Purchase of New Communication Devices

Testing of new communication devices before purchase is a common practice inthe industry. In some cases, the purchase may not be concluded and thecommunication device is left with the seller. This will result in the DMS creatingseveral triple datasets all of which may be temporary.

Tenderers are expected to implement a suitable methodology of handling thisscenario to ensure these temporary datasets are removed from the CA-Whitelist.

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6. Denial of Service

The DMS shall be expected to block/deny services to SIM Boxes, CounterfeitDevices, Non-Type Approved Devices, Substandard Devices, Stolen and LostDevices. Where denial of service is related to the use of the triplet dataset:IMEI+IMSI+MSISDN, a consumer may migrate the IMEI to a new IMSI and/orMSISDN creating a new triplet dataset: IMEI+IMSI+MSISDN.

The proposed DMS should be capable of recognizing that the particular IMEIhas been denied service before and subsequently deny service to the new tripletdataset: IMEI+IMSI+MSISDN. The proposed system should achieve thisobjective.

7. GSM International Roaming Subscribers

In this tender document, GSM International roaming means the ability for avisiting GSM subscriber to use their foreign issued SIM cards to automaticallyaccess services provided by Kenyan MNOs and MVNOs. A roaming subscriberwill therefore have a foreign IMSI and MSISDN. The proposed DMS shouldautomatically include the roaming communication devices of foreign subscribersin the CA-Whitelist. The DMS should accommodate this requirement.

8. Overall Setup of DMS

The goal of DMS is to:(i) Capture data for all communication devices in use in Kenya and associate

them with their users through the triplet datasets:IMEIs+IMSI+MSISDN,

(ii) Filter the communication devices which are not allowed to operate inKenya including SIM Boxes, Counterfeit Devices, Non-Type ApprovedDevices, Substandard Devices, Stolen and Lost Devices,

(iii)Create a CA-Whitelist of communication devices found in (i) but notfound in (ii),

(iv)Deny services to communications devices found in (ii), and(v) Continuously update (i) to (iv) on a real-time basis.

8.1. MNO/MVNO Incoming Connection to the DMS

Currently, there are 9 Mobile Service Providers in Kenya, 3 MNOs and 6MVNOs. This figure is expected to increase. Currently there are over 30million subscribers and the estimated communication devices accessing GSMservices is over 25 million. Each MNO and MVNO will be allowed to onlyaccess the segment of the CA-Whitelist containing their subscribers’

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communication devices as defined by the IMSI assigned to them by theAuthority. Each MNO and MVNO will be required to setup a direct link to theDMS to access the CA-Whitelist.

DMS should segment the CA-Whitelist defining how each MNO and MVNOwill interface with DMS, providing the capacity of each link that the MNO orMVNO are expected to setup.

8.2. DMS Outgoing Connection to MNO/MVNO

DMS is expected to interface with the MNOs and MVNOs in order to sourcefor real-time information to assist in the creation and update of the CA-Whitelist. The connection between the DMS and the MNOs and MVNOs, willbe setup and maintained by the successful tenderer. An uptime availability of99.999% for this connection will be expected for the entire duration of thecontract. The proposed DMS is expected to achieve this requirement.

8.3. Interfaces to DMS

DMS shall have the following man-machine interfaces:

(i) Web based GUI to access DMS simultaneously for government agenciesincluding the Anti-Counterfeit Agency (ACA), the Kenya Bureau ofStandards (KeBS), and the National Police Service (NPS), for viewingand downloading relevant information,

(ii) Web based GUI to access DMS simultaneously, e.g. the Kenya RevenueAuthority (KRA) for capturing, viewing and downloading relevantinformation,

(iii)Web based GUI for each MNO and MVNO to access DMSsimultaneously for capturing, viewing and downloading relevantinformation,

(iv)Web based and intranet based GUI for CA users for capturing, viewingand downloading relevant information and for configuring output reports,and

(v) Web based and intranet based interfaces for DMS administrative use byCA.

CA users or system administrators shall define alerts, DMS should respond andcommunicate the alerts to the user via email and SMS.

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8.4. Diagram of the Overall Setup of DMS

Figure 3 shows the block diagram of the overall setup of the DMS system andthe interface to stakeholders.

CA-whitelist

CA-Type Approval List

Counterfeit Database

CA Import-Database

Sim-Box Database

DMS SYSTEM

KRA IMEIInput

ACA apprehendscounterfeits dealers

NPS apprehendsthieves & criminals

KeBS apprehendssubstandard Devices

CA Input

Stolen/LostDevices-Database

MobileOperators

Mobile Operators useCA-Whitelist to provideservices

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SECTION IV: TENDER DATA SHEET

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

Introduction

TDSClauseNumber

ITTClauseNumber

Amendments of, and Supplements to, Clauses in theInstruction to Tenderers

1. 1.1. Name of Procuring Entity: Communications Authority ofKenya (hereinafter referred to as “the Authority”).

The subject of procurement is: Design, Supply, Delivery,Installation, Testing, Testing, and Maintenance of aDevice Management System (DMS).

Period for Delivery of the project: 2015 -2017

Expected commencement date for the project: uponexecution of the contract by the parties.

1.2. Required completion date for the project: 30th June, 20172. Financial year for the operations of CA: 1st July to 30th

June

Name of Project: Design, Supply, Delivery, Installation,Testing, Commissioning and Maintenance of a DeviceManagement System to the Authority in Kenya.

Name of financing institution: CommunicationsAuthority of KenyaIdentification number of the Project:CA/PROC/OIT/27/2015-2016

3. 3.1. A joint Venture, consortium or an association isapplicable. All parties shall be jointly and severallyliable YES

3.2. Relevant Laws of Kenya including: Public Procurementand Asset Disposal Act, 2015, Tax laws as guided byKenya Revenue Authority, Kenya Information andCommunications Act, 2013, Standards Act, CAP 496 ofthe laws of Kenya, Chapter 469 of the laws of Kenya.

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TDSClauseNumber

ITTClauseNumber

Amendments of, and Supplements to, Clauses in theInstruction to Tenderers

3.3. The evidence and information required are provided inthe evaluation criteria and scope of the project.

4. The Manufacturers/Intellectual Property Rights HolderAuthorization Form must be completed without anyalterations to its format and no substitute will beaccepted.

5. Alternative Tenders to the requirements of the Tenderdocuments will be permitted with respect to technicaldesign.

Tender documents

6. 6.1. The number of copies of the technical bid to be completedand returned in addition to the original shall be one (1) hardcopy and one (1) soft copy prepared in read only MicrosoftOffice Applications or Portable Document Format (PDF)and delivered in a read only compact disk.

The technical tender shall be clearly marked “ORIGINAL”and “COPY,” as appropriate. In the event of anydiscrepancy between them, the original shall prevail.

6.2. The number of copies of the financial bid to be completedand returned in addition to the original shall be one (1) hardcopy.

The financial bid shall be clearly marking “ORIGINAL” and“COPY,” as appropriate. In the event of any discrepancybetween them, the original shall prevail.

7. 7.1. The address for clarification of Tender documents isThe Director General,Communications Authority of KenyaP.O. Box 14448Nairobi 00800KenyaE-mail: [email protected]

mailto:[email protected]

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Preparation of Tenders

8. The Language of all correspondence and documents relatedto the Tender is English. All documents in other languagesshould be accompanied by an English translation.

9. In addition to the documents stated in ITT Clause 12, thedocuments listed in the evaluation criteria must be includedwith the Tender.

10. 10.1. Specific Documentation required will be provided in theformat provided in the evaluation criteria.

10.2. The information required from Tenderers in ITT Clause 13.3is modified as follows: no modification

10.3. Support and maintenance for operation of the system –hardware and software - Five (5) years.

11. The qualification criteria required from Tenderers in ITTClause 14.3(b) is modified as follows: no modification

12. 12.1. Tenderers must quote for all items in each schedule ofrequirements.

12.2. The price quoted shall be Delivered Duty Paid (DDP)inclusive of prices for inland transportation, insurance andprice of incidental services.

The DMS is expected to be delivered as a turnkey where thesupplier will design, supply, deliver, install and commissionthe system.

12.3. (a)The price of the goods shall be DDP12.4. The price shall be fixed

13. 13.1. a) For goods and related services originating in Kenya thecurrency of the Tender shall be Kenya Shillings (Kes);

b) For goods and related services originating outside ofKenya, the Tenderer may express its Tender in US Dollaror Euros. The exchange rate to be used for alltransactions is the Central Bank of Kenya (CBK)exchange rates as at the tender closing date. See CBKwebsite: www.centralbank.go.ke for more information.

13.2. For the purpose of evaluation only, the rate of exchange tobe used will be 1 X currency = Y Kes (to 2 decimal places).

14. The Tender validity period shall be 150 days from the tenderclosing date.

15. 15.1. Tender security is required. Tender security is USD 200,000.15.2. The tender security shall be in the form of a bank Guarantee

from a bank legally operating in Kenya.

http://www.centralbank.go.ke/

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16. 16.1. The number of copies of the Tender to be completed andreturned in addition to the original shall be one (1) hard copyand one (1) soft copy prepared in read only Microsoft OfficeApplication or Portable Document Format (PDF) documentsand delivered in a read only compact disk.

16.2. Written confirmation of authorized signatories is required.

Submission of Tenders

17. (a)Tender shall be submitted to:

The Director General,Communications Authority of Kenya,P.O. Box 14448,Nairobi 00800Kenya

(b)Tender name: Design, Supply, Delivery, Installation,Commissioning and Maintenance of a Device ManagementSystem (DMS).

Tender Number: CA/PROC/OIT/27/2015-201618. 18.1. The deadline for Tender submission is

a) Day: Wednesdayb) Date: 11th May, 2016c) Time: 2.30 p.m. East African Time

Opening and Evaluation of Tenders

19. The Tender opening shall take place at:Communications Authority of KenyaCA Centre, along Waiyaki WayP.O. Box 14448Nairobi 00800Kenya

a) Day: Wednesdayb) Date: 11th May , 2016c) Time: 2.30 p.m East African Timed) Venue: CA Centre, CA Boardroom

20. 20.1. The currency that shall be used for Tender evaluation andcomparison purposes to convert all tender prices expressed

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in various currencies is Central Bank of Kenya as at thetender closing date (11th May, 2016).

20.2. Criteria for Tender evaluation.See the Evaluation Criteria in Section IX

21. Post- qualification due diligence may be undertaken.

Contract Award

22. Percentage for quantity increase or decrease is fifteen percent (15%). Any variation is to be executed within thecontract period provided it does not affect the contract price.

23. The contract shall be signed after at least 14 days followingthe award of the contract.

24. The Performance Security shall be 10% of the contract sum

Review of Procurement Decisions

The address of Public Procurement Regulatory Authority(PPRA) for submitting complaints / appeals:The Secretary,Public Procurement Advisory Review Board11th Floor National Bank Building, Harambee AvenueP.O. Box 58535-00200NAIROBI, Kenya.Tel: +254 (0) 20 324 4000Fax: 2121238email: [email protected]: www.ppoa.go.ke

mailto:[email protected]

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SECTION V: GENERAL CONDITIONS OF CONTRACT

1. Definitions In this Contract, the following terms shall be interpretedas indicated:

(a) “CDS” means the Contract Data Sheet applying tothe named contract by which the GCC may beamended or supplemented.

(b)“Completion” means the fulfilment of the deliveryof goods and related services by the Supplier inaccordance with the terms and conditions set forth inthe contract

(c) “Contract Price” means the price payable to theSupplier as specified under the Contract, subject tosuch additions and adjustment here to or deductionthere from as may be made pursuant to the contractfor the full and proper performance of its contractualobligations.

(d)“Contract” means the agreement entered intobetween the Authority and the Supplier, as recordedin the Contract Form signed by the parties, includingall attachments and appendices thereto and alldocuments incorporated by reference therein.

(e) “Corrupt Practice” means the offering, giving,receiving, or soliciting of anything of value toinfluence the action of a public official in theprocurement process or in contract execution andincludes, inter alia, bribery and extortion or coercionwhich involves threats of injury to person, propertyor reputation.

(f) “Day” means calendar day.

(g)“Delivery” means the transfer of the goods from thesupplier of equipment, machinery, and /or othermaterials, which the Supplier is required to supply tothe Authority under the Contract.

(h)“Effective Date” means the date on which this

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Contract becomes effective pursuant to Clause 1 ofthe CDS

(i) “Eligible Country" means the countries andterritories eligible for participation in procurementsfinanced by the specified institution.

(j) “End User” means the organization(s) where thegoods will be used, as named in Clause 1 of theCDS.

(k)“Force Majeure” means an event or situation beyondthe control of the parties and not involving theparties’ fault or negligence and not foreseeable, isunavoidable, and is not due to negligence or lack ofcare on the part of the parties. Such events mayinclude, but are not restricted to, wars or revolutions,fires, floods, epidemics, quarantine, restrictions, actsof terrorism, piracy and freight embargoes.

(l) “Fraudulent Practice” includes misrepresentation offact in order to influence procurement or disposalprocess or the exercise of a contract to the detrimentof the Authority, and includes collusive practisesamongst Tenderers prior to or after Tendersubmission designed to establish Tender prices atartificial non-competitive levels and to deprive theAuthority of the benefits of free and opencompetition.

(m) “GCC” means the General Conditions ofContract contained in this section.

(n)“Goods” includes materials and services that areincidental to the supply, installation andCommissioning of the DMS.

(o)“Origin” means the place where the Goods weremined, grown, or produced or from which theServices are supplied. Goods are produced when,through manufacturing, processing, or substantialand major assembly of components, a commerciallyrecognized new produce results that is substantially

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different in basic characteristics or in purpose orutility from its components.

(p)“Procuring Entity” means the entity purchasing theGoods and related service, as named in Clause 1 ofthe CDS.

(q)“Project Site” where applicable, means the place orplaces named in Clause 1 of the CDS.

(r) “Related Services” means those services ancillary tothe supply of the Goods, such as transportation andinsurance, and any other incidental services, such asinstallation, commissioning, provision of technicalassistance, training, initial maintenance and othersuch obligations of the Supplier covered under theContract.

(s) “Supplier” means the individual, private or publicentity or a combination of the above whose Tenderto perform the contract has been accepted by theAuthority and is named as such in the ContractAgreement, and includes the legal successors orpermitted assigns of the supplier.

2. Application These General Conditions shall apply to the extent thatthey are not superseded by provisions of other parts ofthe Contract.

3. GoverningLanguage

The Contract and all correspondence and documentsrelating to the contract exchanged by the Supplier andthe Authority shall be written in English, unless anotherlanguage is specified in Clause 2 of the CDS. Theversion of the Contract written in the specified languageshall govern its interpretation.

4. ApplicableLaw andInterpretation

The contract shall be governed and interpreted inaccordance with the laws of Kenya, unless otherwisespecified in Clause 3 of the CDS.

5. Country ofOrigin andNationalityof Supplier

The origin of Goods and Services means the placewhere the goods are mined, grown, cultivated,produced, manufactured, or processed, or throughmanufacture, process, or assembly, anothercommercially recognized article results that differssubstantially in its basic characteristics from its

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imported components or the place from which therelated services are supplied.

The nationality of the firm that produces, assembles,distributes, or sells the goods and services shall notdetermine their origin.

6. Standards The Goods supplied under this Contract shall conformto the standards mentioned in the TechnicalSpecifications, and, when no applicable standard ismentioned, to the authoritative standards appropriate toKenya. Such standards shall be the latest issued by theconcerned institution.

7. Use ofContractDocumentsandInformation;Inspectionand Audit

7.1. The Supplier shall not, without the Authority’s priorwritten consent, disclose the Contract, or any provisionthereof, or any specification, plan, drawing, pattern,sample, or information furnished by or on behalf of theAuthority in connection therewith, to any person otherthan a person employed by the Supplier in theperformance of the Contract. Disclosure to any suchemployed person shall be made in confidence and shallextend only so far as may be necessary for purposes ofsuch performance.

7.2. The Supplier shall not, without the Authority’s priorwritten consent, make use of any document orinformation enumerated in GCC Clause 7.1 except forpurposes of performing the Contract.

7.3. Any document, other than the Contrac