1. business and industrial
2. company
3. joint venture

West Bengal Highway Development Corporation Limited
(A Wholly owned Company of Government of West Bengal)
Request for Proposal
(Bid Document)
For
Consultancy services in relation to the construction and development of
a commercial complex cum computerized multiple layer car parking in
the vacant land at K.S. Roy Road, B.B.D. Bag (Kolkata) including
preparation of a detailed feasibility report, structuring of the project on
public private partnership mode, preparation of concession agreement
and assistance in selection of the concessionaire for such construction
and development work.
NI T No. CI V/ W ORKS/ 01/ 14-15 Dated 19.06.2014
June 2014
NOTICE
NIT No. CIV/ WORKS/01/14-15 Dated 19.06.2014
Subject:
Invitation for proposals for consultancy services in relation to the construction
and development of a commercial complex cum computerized multiple layer
car parking in the vacant land at K.S. Roy Road, B.B.D. Bag (Kolkata)
including preparation of a detailed feasibility report, structuring of the
project on public private partnership mode, preparation of concession
agreement and assistance in selection of the concessionaire.
1.
West Bengal Highway Development Corporation Limited (“WBHDCL/ Authority”)
intends to take up construction and development of a commercial complex cum
computerized multiple layer car parking (the “Project”) on the vacant land at K.S. Roy
Road, B.B.D. Bag (Kolkata) having an area of 1877 (one thousand eight hundred seventy
seven) square meters (the “Project Site”) through public private partnership (“PPP”)
mode on design, build, finance, operate and transfer (“DBFOT”) basis so as to achieve
several objectives such as providing parking space for cars as per traffic demand and
space for commercial activities like offices, shops, food court, etc. in accordance with the
local commercial demand.
2.
WBHDCL hereby invites sealed tenders from reputed engineering / financial consultancy
firms for rendering consultancy services for the Project including preparation of a
detailed feasibility report, structuring of the Project on PPP mode, preparation of
concession agreement and assistance in selection of the developer for construction and
development of the Project as per the following schedule:-
3.
Last date for receipt of queries
25th June, 2014
Pre-proposal conference
25th June, 2014 at 15-00 hrs
Last date for receipt of Proposals
07th July 2014 up to 15-30 hrs.
Opening of Technical Bid
07th July 2014 at 16-00 hrs.
Opening of Financial Bid
14th July 2014 at 16-00 hrs
1
Note: The pre-proposal conference shall be held in the chamber of Managing Director, West
Bengal Highway Development Corporation Limited, HRBC Bhawan, 4th & 5th Floor,
Munshi Premchand Sarani, Kolkata–700021, at the time and on the date mentioned
herein above.
4.
The request for proposal (the “RFP”) document shall be uploaded on the WBHDCL
website (i.e. http://www.wbhdcl.gov.in) and can be downloaded from 19th June, 2014
from the WBHDCL website.
5.
The applicants shall be evaluated for selection under a quality and cost based selection
method and procedures described in this RFP. The RFP shall consist of two parts which
are as follows:
Part 1: Technical Proposal; and
Part 2: Financial Proposal.
6.
Technical Proposal and the Financial Proposal (together the “Proposal”) must be
submitted in hard bound form (hard bound implies binding between two covers through
stitching or otherwise whereby it may not be possible to replace any paper without
disturbing the documents and spiral bound form, loose form etc. will be not accepted)
with all pages numbered serially, along with an index of submission. The two parts of the
Proposal should each be submitted in a separate envelope/ package and put together in
one single outer envelope/ package. The sealed tenders are to be submitted in a sealed
Cover-A, containing Cover-B (Technical Proposal) and Cover-C (Financial Proposal)
which are to be sealed separately.
7.
The Technical Proposal shall be opened first. The shortlisted applicant qualifying in the
Technical Proposal stage would be considered for further evaluation. The Financial
Proposal of only those shortlisted applicants who have qualified in the Technical
Proposal stage and scored qualifying marks in the technical evaluation would be opened.
The final selection of an applicant would be based on the combined score of the
evaluated Technical Proposal and Financial Proposal. The weightage of Technical
Proposal and Financial Proposal would be 80% (eighty percent) and 20% (twenty
percent) respectively.
8.
Bidding applicants have to pay a non-refundable processing fee of Rs. 10,000/- (Rupees
Ten Thousand only) by bank draft drawn in favour of the West Bengal Highway
Development Corporation, payable on any scheduled bank at Kolkata. The processing fee
must be submitted at the time of submission of the Proposal in a separate sealed cover.
9.
The Proposal must be received not later than 15.30 hours on 07th July 2014 (the
“Proposal Due Date”) in the manner specified in the RFP at the address given below:
2
Office of the Managing Director,
West Bengal Highway Development Corporation Limited
HRBC Bhawan, 4th & 5th Floor,
Munshi Premchand Sarani,
Kolkata - 700021
10.
WBHDCL shall not be responsible for any delay in receiving the Proposal and reserves
the right to accept/ reject any or all Proposals without assigning any reason whatsoever.
11.
To participate in the tender, an applicant should satisfy the minimum eligibility criteria
specified in Clause 3.1.2 of the RFP.
Managing Director,
West Bengal Highway Development Corporation Limited
HRBC Bhawan, 4th & 5th Floor
Munshi Premchand Sarani
Kolkata - 700021
3
INDEX
Sl. No.
Title
Page No
1
Background of the Proposal
5
2
Disclaimer
5
3
Instructions to Applicants
7
A. General
7
B. Documents
14
C. Preparation and Submission of proposal
16
D. Evaluation process
21
E. Appointment of Consultant
23
4
Terms of Reference – Schedule 1
29
5
Technical Proposal – Schedule 2
37
6
Financial Proposal – Schedule 3
65
7
Form of Agreement – Schedule 4
70
8
Appendix-I – Site Map
105
4
1.
BACKGROUND OF THE PROPOSAL
1.1
West Bengal Highway Development Corporation Limited (“WBHDCL/ Authority”)
intends to take up construction and development of a commercial complex cum
computerized multiple layer car parking (the “Project”) on the vacant land at K.S. Roy
Road, B.B.D. Bag (Kolkata) having an area of 1877 (one thousand eight hundred seventy
seven) square meters (the “Project Site”) through public private partnership (“PPP”)
mode on design, build, finance, operate and transfer (“DBFOT”) basis so as to achieve
several objectives such as providing parking space for cars as per traffic demand and
space for commercial activities like offices, shops, food court, etc. in accordance with the
local commercial demand. The Public Works Department, Government of West Bengal
is the owner of the Project Site and has requested WBHDCL to take up the construction
and development of the Project at the Project Site through PPP mode on DBFOT basis.
1.2.
If found technically feasible and financially viable, the Project may be awarded on
DBFOT basis to a private entity (the “Concessionaire”) selected through a competitive
bidding process. The Project would be implemented in accordance with the terms and
conditions stated in the concession agreement to be entered into between the WBHDCL
and the Concessionaire (the “Concession Agreement”).
In pursuance of the above, WBHDCL has decided to carry out the process for selection
of a reputed consultancy engineering firm for rendering consultancy services for the
Project including preparation of a techno-financial feasibility report, bid process
management, preparation of the Concession Agreement, assistance in selection of the
Concessionaire and supervision of the Project till achievement of the financial closure,
in accordance with the terms of reference specified at Schedule 1 (the “TOR”).
1.3.
The Project Site map is provided in Appendix 1.
1.4.
Request for Proposal
WBHDCL invites proposals (the “Proposals”) for selection of a reputed consultancy
engineering firm as the consultant (the “Consultant”) who fulfils the criteria
specified in Clause 3.1 below and who has the necessary expertise in preparation of
techno-feasibility reports, bid process management, development of the Project in
conformity with the TOR, preparation of Concession Agreement, assistance in
selection of the Concessionaire and supervision of the Project till the achievement of
the financial closure (collectively the “Consultancy”).
WBHDCL intends to select the Consultant through an open competitive bidding
process in accordance with the procedure set out herein.
2.
DISCLAIMER
2.1.
The information contained in this request for proposal (“RFP”) or subsequently
provided to the applicants, whether verbally or in documentary or any other form by or
on behalf of WBHDCL or any of its employees or advisers, is provided or deemed to
be provided to the applicants on the terms and conditions set out in this RFP and
such other terms and conditions subject to which such information is provided.
5
2.2.
This RFP is not an agreement and is neither an offer nor an invitation to offer by
WBHDCL to the applicants or any other person. The purpose of this RFP is to provide
information that may be useful to the applicants in the formulation of their Proposals
pursuant to this RFP. This RFP may not be appropriate for all persons and it is not
possible for WBHDCL, its employees or advisers to consider the objectives, technical
expertise and particular needs of each and every party who reads or uses this RFP. The
information contained in this RFP may not be complete, accurate, adequate or correct.
Each applicant should, therefore, conduct its own investigations and analysis and should
check the accuracy, adequacy, correctness, reliability and completeness of the
information contained in this RFP and obtain independent advice from appropriate
sources.
2.3.
WBHDCL may, in its absolute discretion, but without being under any obligation to do
so, update, amend or supplement the information, assessment or assumption contained
in this RFP. Such updated, amended and/ or supplemental information, assessment or
assumption shall be uploaded only on the website of WBHDCL. It shall be the sole
responsibility of the applicants to check the website of WBHDCL on a regular basis and
WBHDCL shall not be under an obligation to individually communicate such
information to the applicants.
2.4.
The issue of this RFP does not imply that WBHDCL is bound to select the
Consultant and WBHDCL reserves the right to reject all or any of the Proposals
without assigning any reasons whatsoever.
2.5.
Each applicant shall bear all its costs associated with or relating to the preparation and
submission of its Proposal including, but not limited to preparation, copying, postage,
delivery fees and expenses associated with any demonstrations or presentations which
may be required by WBHDCL or any other costs incurred in connection with or
relating to its Proposal. All such costs and expenses shall be payable by the applicants
and WBHDCL shall not be liable in any manner whatsoever for the same or for any
other costs or expenses incurred by the applicants in the preparation or submission of
their Proposal, regardless of the conduct or outcome of the Selection Process (as defined
hereinafter).
6
3.
A.
3.1.
INSTRUCTIONS TO APPLICANTS
In case an applicant possesses the requisite experience and capabilities required for
undertaking the role of the Consultant, it may participate in the Selection Process either
individually (the “Sole Firm”) or as a joint venture/consortium of 2 (two) consulting firms
(“Joint Venture”) in response to this RFP. In the event an applicant participates in the
Selection Process as a Joint Venture, then one of the members of the said Joint Venture
shall be designated as the lead member of such Joint Venture (“Lead Member”) for the
purpose of this RFP. However, it is hereby clarified that in the event an applicant
participates in the Selection Process in the form of a Joint Venture, then each member of
such Joint Venture shall be jointly and severally liable and responsible to the Authority
for all matters related to the Consultancy and shall be represented in their individual
capacity. For the avoidance of doubt, references to the term applicant in this RFP shall
mean the Sole Firm or the Joint Venture, as the case may be. The manner in which the
Proposal is required to be submitted, evaluated and accepted is explained in this RFP
GENERAL
Conditions of Eligibility of Applicants
3.1.1. Applicants must read carefully the minimum conditions of eligibility (the
“Conditions of Eligibility”) provided herein. Proposals of only those applicants
who satisfy the Conditions of Eligibility will be considered for evaluation.
3.1.2. To be eligible for evaluation of its Proposal, an applicant shall fulfil/submit the
following:
Sl.
No.
Criteria
For
Firm
Sole For Lead
Member in
Joint
Venture
1
Eligible applicant shall be Must meet
either (i) proprietorship requirement
firm (with the proprietor
having residence in India),
(ii)
limited
liability
partnership or partnership
firm (with all the partners
having residence in India)
or (iii) Company registered
in India under Indian
Companies Act 1956 or
2013
2
Minimum of 5 (five) years Must meet Must meet Must
meet
of consultancy experience requirement requirement requirement
Must meet
requirement
For
other
member in
Joint
Venture
Must meet
requirement
7
Sl.
No.
Criteria
For
Firm
Sole For Lead
Member in
Joint
Venture
For
other
member in
Joint
Venture
in the relevant discipline
3
Minimum average turnover Must meet Must meet Not
of
Rs.
25,00,00,000/- requirement requirement applicable
(Rupees
Twenty Five
Crores only) per annum
from consultancy services
over the last 3 (three)
financial years
4
Experience in preparation Must meet Must meet Not
of feasibility reports and requirement requirement applicable
PPP transaction advisory
either as a sole consultant
or a lead member of a
consortium for at least 3
(three)
infrastructure
projects,
having
a
minimum cost of Rs.
20,00,00,000/(Rupees
Twenty crores only) each
5
Experience in consultancy Must meet Must meet Not
for at least 1 (one) requirement requirement applicable
multilevel car parking
complex project developed
through PPP mode on
DBFOT basis either as a
sole consultant or a lead
member of a consortium
6
Provide strong consulting Must meet
and evaluation team with at requirement
least 7 (seven) dedicated
individuals
from
diversified backgrounds as
specified in Clause 3.5 of
this RFP
Must meet requirement for
the Joint Venture entity, out
of which the Lead Member
must provide 3 (three)
dedicated individuals.
8
7
The applicant should not Must meet
be an entity which has been requirement
barred by the Central/ State
Government in India, or
any entity controlled by
them, from participating in
any project, and the bar
subsists as on the date of
submission of the Proposal
Must
meet
requirem
ent
Must
meet
requirement
To be eligible for evaluation of its Proposal, an applicant shall submit the following:
•
•
•
•
•
In case of Joint Venture, the applicant shall submit a copy of the memorandum of
understanding executed between the members of the said Joint Venture as per the format
specified at Schedule 2 of this RFP, along with the Proposal;
The applicant should submit a power of attorney as per the format(s) specified at Schedule
2 of this RFP;
The applicant should submit its annual audited financial statements for the last 3 (three)
financial years. In case of Joint Venture, the Lead Member of Joint Venture should only
submit the annual audited financial statements;
The Proposal should be accompanied with a non-refundable processing fee of Rs. 10,000/(Rupees Ten Thousand only), by bank draft drawn in favour of the West Bengal Highway
Development Corporation on any scheduled bank at Kolkata. The processing fee must be
submitted at the time of submission of Proposal in a separate sealed cover; and
The Proposal should be accompanied with the Bid Security (as defined hereinafter) as
specified in Clause 3.25 of the RFP.
The Proposal of an applicant, which does not fulfil all or any above-mentioned Conditions
of Eligibility, shall be summarily rejected by WBHDCL
3.2.
Scope of Proposal
3.2.1.
Applicants are advised that the selection of the Consultant shall be on the basis
of evaluation by WBHDCL through the Selection Process specified in this
RFP. Applicants shall be deemed to have understood and agreed that no
explanation or justification for any aspect of the Selection Process will be given
and that WBHDCL’s decision with regard to selection of the Consultant is
without any right of appeal whatsoever.
3.2.2.
Each applicant shall submit its Proposal in the form and manner specified in
this RFP and any Proposal that deviates from such form and manner as
specified in this RFP shall be liable to be summarily rejected by WBHDCL.
The Technical Proposal shall be submitted in the form specified at Schedule 2
and the Financial Proposal shall be submitted in the form specified at Schedule
3. Upon selection, the Consultant shall be required to enter into an agreement
9
3.3.
with WBHDCL in the form specified at Schedule 4 (the “Agreement”).
Due diligence by Applicants
Applicants are encouraged to inform themselves fully about the assignment and the
local conditions before submitting their Proposals by paying a visit to the Project Site
and ascertaining for themselves the site conditions, traffic, location, climate,
surroundings, availability of drawings and other data with WBHDCL. Applicants are also
advised to acquaint themselves with the applicable rules and regulations which may
significantly restrict the development plans on the Project Site and make an independent
assessment of the plan for the Project. The Authority does not take any liability for any
such restrictions that maybe applicable on the Project Site.
3.4.
Validity of the Proposal
Proposals shall be valid for a period of not less than 90 (ninety) days from the
Proposal Due Date.
3.5.
Key Personnel
The consultancy team of the applicants shall consist of the following key personnel
(the “Key Personnel”), who must fulfil the conditions of eligibility as specified below:
Sl.
No.
1
2
3
4
5
6
Key
Qualification
personnel
Project Team MBA (Finance) / Chartered Accountant with at least 15
Leader
(fifteen) years’ experience in related area. He/ she should
have worked on at least 3 (three) similar assignments of
which at least 1 (one) should have been a multi-layer
commercial complex cum car parking project implemented
under PPP mode.
Architect
Master’s Degree in Architecture or equivalent (M Plan,
Urban Designer, Landscape Architecture, Conservation
Architecture, etc.) with at least 10(ten) years’ experience in
related area. He/ she should have worked on at least 1 (one)
multi-layer commercial complex cum car parking project.
Structural
Bachelors’ Degree in Civil Engineering with at least 10 (ten)
Engineer
years’ experience in structural design of multi-storied
buildings.
Mechanical
Bachelor’s degree in Mechanical Engineering with at least
Engineer
10 (ten) years’ experience in design of industrial structures.
He/ she should have worked on at least 1 (one) multi-storied
parking project.
Traffic
Bachelors’ Degree in Civil Engineering with Master’s degree
Expert
in Transportation Engineering with at least 10 (ten) years’
experience in traffic and transportation projects.
Finance
Chartered accountant or MBA (Finance) from reputed
Specialist
educational Institution/ University, with at least 10 (ten)
years’ experience in project finance assessments and
10
Sl.
No.
Key
personnel
Qualification
3.6.
modelling for infrastructure development projects.
Legal Expert Bachelor’s degree in Law with at least 5 (five) years’
7
experience in legal advisory services related to infrastructure
projects. He/ she should have worked on at least 2 (two) PPP
projects.
Brief description of the Selection Process
3.7.
WBHDCL has adopted a two stage selection process (collectively the “Selection
Process”) in evaluating the Proposals comprising Technical and Financial Proposals to
be submitted in two separate sealed envelopes. In the first stage, a technical evaluation
will be carried out as specified in Clause 4.1. Based on this technical evaluation, a
list of short-listed applicants shall be prepared. In the next stage, a financial evaluation
will be carried out as specified in Clause 4.2. The applicant achieving the highest
combined technical and financial score as per Clause 4.3 shall be selected for negotiation
(the “Selected Applicant”).
Currency conversion rate and payment
3.7.1. For the purposes of technical evaluation of applicants, Rs.50 per US$ shall
be considered as the applicable currency conversion rate. In case of any
other currency, the same shall first be converted to US$ and the amount so
derived in US$ shall be converted into INR at the aforesaid rate. The
conversion rate of such currencies into US$ shall be the conversion rate as on
the last date of submission of the Proposals.
3.8.
3.7.2. All payments to the Consultant shall be made in INR in accordance with the
provisions of this RFP and the Agreement. The Consultant may convert INR
into any foreign currency as per applicable laws and the exchange risk, if any,
shall be borne by the Consultant.
Schedule of Selection Process
WBHDCL would endeavour to adhere to the following schedule:
Last date for receipt of queries
25th June, 2014
Pre-proposal conference
25th June, 2014 at 15-00 hrs
Last date for receipt of Proposals
07th July 2014 up to 15-30 hrs.
Opening of Technical Bid
07th July 2014 at 16-00 hrs.
Opening of Financial Bid
14th July 2014 at 16-00 hrs
11
Note: The pre-proposal conference shall be held in the chamber of Managing Director,
West Bengal Highway Development Corporation Limited, HRBC Bhawan, 4th & 5th
Floor, Munshi Premchand Sarani, Kolkata–700021, at the time and on the date
mentioned hereinabove
3.9.
Communications
All communications including the Proposal should be addressed to:
The Managing Director,
West Bengal Highway Development Corporation Ltd,
4th & 5th Floor, HRBC Bhawan, Munshi Premchand Sarani,
Kolkata – 700021
Phone: 033-22625267
Fax: 033-22625266
E-mail: wbhdcl@gmail.com
3.10.
3.11.
3.12.
Number of Proposals
An applicant shall be entitled to submit only one Proposal, either individually or as a
member of any Joint Venture, as the case may be
Cost of Proposal
Applicants shall be responsible for all of the costs associated with the preparation of their
Proposals and their participation in the Selection Process including subsequent
negotiation, visits to WBHDCL, the Project Site etc. WBHDCL will not be responsible
or in any way liable for such costs, regardless of the conduct or outcome of the Selection
Process.
Right to reject any or all Proposals
Notwithstanding anything contained in this RFP, WBHDCL reserves the right to
accept or reject any Proposal and to annul the Selection Process and reject all Proposals,
at any time without any liability or obligation for such acceptance, rejection or
annulment, and without assigning any reasons thereof. More specifically, WBHDCL
reserves the right to reject any Proposal and forfeit the Bid Security if:
(a)
at any time, a material misrepresentation/ improper response is made or uncovered,
or
(b)
an applicant does not provide, within the time specified by WBHDCL, the
supplemental information sought by the Authority for evaluation of its Proposal.
If such disqualification/ rejection occurs after the Proposal (Technical Proposal and/or
Financial Proposal) has been opened and the Selected Applicant gets disqualified/
rejected, then the Authority reserves the right to:
(i)
(ii)
3.13.
invite the remaining applicants to submit their Proposals; or
take any such measures as may be deemed fit in the sole discretion of the Authority,
including annulment of the Selection Process.
Conflict of Interests
12
An applicant shall not have any conflict of interest that may affect the Selection Process
or the Consultancy (the “Conflict of Interest”). Any applicant found to have a Conflict
of Interest shall be disqualified. In the event of disqualification, the Authority shall forfeit
and appropriate the Bid Security or Performance Security (in case of the Selected
Applicant, after the Consultancy is awarded to him), as the case may be, as mutually
agreed genuine pre-estimated compensation and damages, likely to be suffered and
incurred by the Authority and not by way of penalty, payable to the Authority for, inter
alia, the time, cost and effort of the Authority including consideration of such
applicant’s Proposal, without prejudice to any other right or remedy that may be available
to the Authority hereunder and/or under the Agreement or otherwise.
The Authority requires that the Consultant should provide professional, objective and
impartial advice and should at all times hold the Authority’s interests paramount, avoid
conflicts with other assignments or its own corporate interests and act without any
consideration for future work. The Consultant shall not accept or engage in any
assignment that would be in conflict with its prior or current obligations to other
employers or that may place it in a position of not being able to carry out the assignment
in the best interests of the Authority.
Without limiting the generality of the above, an applicant shall be deemed to have a
Conflict of Interest if:
(i)
the applicant, its Joint Venture members (if applicable), shareholders or partners
(the “Member” or Associate….have common controlling shareholders or other
ownership interest; provided that this disqualification shall not apply (a) in cases
where the direct or indirect shareholding of an applicant, its Member or Associate
(or any shareholder thereof having a shareholding of more than 5% (five percent) of
the paid up and subscribed share capital of the applicant, its Member or Associate,
as the case may be) in the other applicant, its Member or Associate is less than 1%
(one percent) of the paid up and subscribed share capital of the first mentioned
applicant, its Member or Associate; and (b) to a bank, insurance company, pension
fund or a Public Financial Institution referred to in Section 4A of the Companies
Act, 1956 (as amended, replaced, substituted from time to time). For the purposes
of this Clause, indirect shareholding held through one or more intermediate persons
shall be computed as follows: (aa) where any intermediary is controlled by a person
through management control or otherwise, the entire shareholding held by such
controlled intermediary in any other person (“Subject Person”) shall be taken into
account for computing the shareholding of such controlling person in the Subject
Person; and (bb) subject always to sub-clause (aa) above, where a person does not
exercise control over an intermediary, which has shareholding in the Subject
Person, the computation of indirect shareholding of such person in the Subject
Person shall be undertaken on a proportionate basis; provided, however, that no
such shareholding shall be reckoned under this sub-clause (bb) if the shareholding
of such person in the intermediary is less than 26% (twenty six per cent) of the
subscribed and paid up equity shareholding of such intermediary; or
(ii) a constituent of such applicant is also a constituent of another applicant; or
(iii) such applicant, its Members or any Associate thereof receives or has received any
direct or indirect subsidy grant, concessional loan or subordinated debt from any
other applicant, its Member or Associate or has provided any such subsidy, grant,
13
concessional loan or subordinated debt to any other applicant, Member or any
Associate thereof,; or
(iv) such applicant has the same legal representative for purposes of this RFP as any
other applicant; or
(v)
such applicant has a relationship with another applicant, directly or through
common third parties, that puts them in a position to have access to each others’
information about, or to influence the Proposal of each other; or
(vi) such applicant has participated as a consultant to the Authority in the preparation of
any documents, design or technical specifications of the Project.
For purposes of this RFP, “Associate” in relation to a person means, any person who
controls, is controlled by, or is under the common control with such person.
For purposes of this RFP, the expression “control” means, with respect to a person which
is a company or corporation, the ownership, directly or indirectly, of more than 50%
(fifty per cent) of the voting shares of such person, and with respect to a person which is
not a company or corporation, the power to direct the management and policies of
such person, whether by operation of law or by contract or otherwise.
An applicant eventually appointed as the Consultant for the Project, as well as any of its
Associates, shall be disqualified from subsequently providing goods or works related
to the construction and execution of the Project and any breach of this obligation shall
also be construed as Conflict of Interest.
An applicant shall be liable for disqualification and WBHDCL may forfeit such
applicant’s Bid Security if any legal, financial or technical adviser of WBHDCL in
relation to the Project is engaged by the applicant in any manner for matters related to, or
incidental therewith, to the Consultancy during the Selection Process.
B.
DOCUMENTS
3.14.
Contents of the RFP
This RFP comprises the disclaimer set forth hereinabove, the contents as listed below
and will additionally include any addendum/ amendment/ corrigendum issued in
accordance with Clause 3.16. This RFP is non- transferable and any award of the
Consultancy pursuant to this RFP shall be subject to the terms of the Agreement.
Request for Proposal
1. Background of the Proposal
2. Disclaimer
3. Instructions to Applicants
4. Criteria for Evaluation
5. Fraud and Corrupt Practices
6. Pre-Proposal Conference
7. Miscellaneous
8. Site Plan (Appendix 1)
Schedules
14
1. Terms of Reference and Scope of Services
2. Technical Proposal
Form 1: Letter of Proposal
Form 2: Particulars of the Applicant
Form 2A: Memorandum of Understanding
Form 3: Power of Attorney
Form 3A: Power of Attorney for Joint Venture
Form 4: Financial Capacity of the Applicant
Form 5: Abstract of the eligible assignment of the Applicant.
Form 6: Firm’s References
Form 7: Proposed Methodology and Work Plan
Form 8: Particulars of Key Personnel
Form 9: CV of Key Personnel
Form 10: Eligible Assignment of Key Personnel.
Form 11: Deployment of Personnel
Form 12: Assessment and Declaration
Form 13: Proposal for Sub-Consultants
3. Financial Proposal
Form 1: Covering Letter
Form 2A: Financial Proposal
Form 2B: Estimated budgetary support required
4. Form of Agreement
3.15.
Clarifications
Applicants requiring any clarification on the RFP may send their queries to
WBHDCL in writing before the date mentioned in the schedule of Selection Process at
Clause 3.8, by post, fax or e-mail.
WBHDCL shall endeavour to respond to the questions raised or clarifications sought by
the applicants. However, WBHDCL reserves the right to not respond to any question or
provide any clarification, in its sole discretion, and nothing in this Clause shall be taken or
read as compelling or requiring WBHDCL to respond to any question or to provide any
clarification. WBHDCL shall not take any responsibility for postal or any other delay in
response.
WBHDCL may also on its own, if deemed necessary, issue interpretations and
clarifications to all applicants. All clarifications and interpretations issued by WBHDCL
shall be deemed to be part of the RFP. Verbal clarifications and information given by
WBHDCL or its employees or representatives shall not in any way or manner be binding
on WBHDCL.
15
3.16.
Amendment of RFP
At any time prior to the Proposal Due Date, WBHDCL may, for any reason, whether at
its own initiative or in response to clarifications requested by an applicant, modify the
RFP by the issuance of an addendum/ amendment/ corrigendum and posting it on its
official website. In order to afford the applicants a reasonable time for taking an
amendment into account, or for any other reason, WBHDCL may, in its sole discretion,
extend the Proposal Due Date as specified in Clause 3.8.
C.
PREPARATION AND SUBMISSION OF PROPOSAL
3.17.
Language
All Proposals with all accompanying documents (the “Documents”) and all
communications in relation to or concerning the Selection Process shall be in English
and strictly in the forms provided in this RFP. No supporting document or printed
literature shall be submitted with the Proposal unless specifically asked for and in
case any of these Documents is in another language, it must be accompanied by an
accurate translation of the relevant passages in English, in which case, for all
purposes of interpretation of the Proposal, the translation in English shall prevail.
3.18.
Format and signing of Proposal
3.18.1. The applicants shall provide all the information sought under this RFP.
WBHDCL would evaluate only those Proposals that are received in the specified
forms and complete in all respects.
3.18.2.
The Applicant shall prepare 1 (one) original set of the Application (together
with originals/ copies of documents required to be submitted along therewith
pursuant to this RFP) and clearly marked “ORIGINAL”. In addition, the
Applicant shall submit 1 (one) copy of the Application, along with documents
required to be submitted along therewith pursuant to this RFP, marked “COPY”.
In the event of any discrepancy between the original and the copy, the original
shall prevail.
3.18.3. Proposals shall be typed and signed by the authorised representative of the
applicant who shall initial each page. In case of printed and published
Documents, only the cover shall be initialled. All alterations, omissions,
additions or any other amendments made to a Proposal shall be initialled by the
person(s) signing the Proposal. Unsigned Proposals will be summarily rejected.
3.18.4. In the event that the applicant constitutes a Joint Venture, the applicant shall submit
(i) a copy of the memorandum of understanding executed between members of
16
the Joint Venture in the format prescribed in Form 2A of Schedule 2 of this RFP,
and (ii) a power of attorney (executed by all members of the Joint Venture) in
favour of the designated Lead Member of the Joint Venture in the format
prescribed in Form 3A of Schedule 2 of this RFP, that authorizes the designated
Lead Member of the Joint Venture to act for and on behalf of the Joint Venture
and all the members of the Joint Venture and to legally bind such Joint Venture
and all the members of the Joint Venture in any contractual or similar
documentation. The memorandum of understanding in accordance with Form 2A
of Schedule 2 and power of attorney for Lead Member of Joint Venture in
accordance with Form 3A of Schedule 2 shall be attached to Form-1, Standard
Forms (Schedule 2) and submitted as part of the Technical Proposal of such
applicant.
The memorandum of understanding shall identify the Lead Member. All members
of the Joint Venture shall sign the Proposal unless the Lead Member is
empowered to do so in the power of attorney
Applicants should note the Proposal Due Date, as specified in Clause 3.8, for
submission of Proposals. Except as specifically provided in this RFP, no
supplementary material will be entertained by WBHDCL and evaluation will
be carried out only on the basis of Documents received by the closing time of the
Proposal Due Date.
3.19. Technical Proposal
3.19.1. Applicants shall submit the technical proposal in the format specified at Schedule
2 (the “Technical Proposal”) along with soft copy in Compact Disk (CD).
3.19.2. While submitting the Technical Proposal, an applicant shall, in particular, ensure
that:
(a) All forms are submitted in the prescribed formats and signed by the
authorized signatories;
(b) Curriculum Vitae (CV) of all Professional Personnel (as defined hereinafter)
have been included;
(c) Key Personnel have been proposed only if they meet the Conditions of
Eligibility laid down at Clause 3.5 of this RFP;
(d) No alternative proposal for any Key Personnel is being made and only one
Curriculum Vitae (CV) for each position has been furnished;
(e) Professional Personnel proposed have good working knowledge of English
language;
(f) Key Personnel would be available for the period indicated in the TOR;
(g) Bid Security as specified in this RFP has been included;
(h) Power of attorney, if applicable, is executed as per applicable laws;
(i) The Proposal is accompanied with necessary processing fee; and
(j) The Proposal is responsive as per Clause 3.26.3.
(k) In case of Joint Venture, a copy of the memorandum of understanding
17
executed between the members of such Joint Venture and a power of
attorney in favour of the Lead Member of the Joint Venture are submitted
along with the Proposal
3.19.3. Failure to comply with the requirements spelt out in this Clause 3.19 shall make
the Proposal liable to be rejected.
3.19.4. If any Key Personnel of an applicant makes a false averment regarding his
qualification, experience or other particulars, or his commitment regarding
availability for the Project is not fulfilled at any stage after signing of the
Agreement, he shall be liable to be permanently debarred for any future
assignment of WBHDCL. The award of Consultancy to such applicant may also
be liable to cancellation/rejection in such an event.
3.19.5. The Technical Proposal shall not include any financial information relating to the
Financial Proposal.
3.19.6. The proposed team of the applicant to perform the Consultancy shall be composed
of experts and specialists (the “Professional Personnel”) in their respective areas
of expertise and managerial/ support staff (the “Support Personnel”). The Key
Personnel specified in Clause 3.5 shall be included in the Professional Personnel.
Other competent and experienced Professional Personnel in the relevant areas of
expertise must be added as required for successful performance and completion
of the Consultancy. The Curriculum Vitae (CV) of each such Professional
Personnel, if any, should also be submitted.
3.19.7. An applicant may, if it considers necessary, propose suitable sub-consultants in
specific areas of expertise. A sub-consultant, however, shall not be a substitute
for any Key Personnel.
3.19.8. WBHDCL reserves the right to verify all statements, information and documents,
submitted by an applicant in response to this RFP.
3.20.
Financial Proposal
3.20.1. Applicants shall submit the financial proposal in the format specified at Schedule
3 (the “Financial Proposal”) clearly indicating the total cost of providing the
Consultancy in both figures and words, in Indian Rupees and signed by the
applicant’s authorised representative. In the event of any difference between
figures and words, the amount indicated in words shall prevail.
3.20.2. While submitting the Financial Proposal, all applicants shall ensure the following:
(i)
All the costs associated with the assignment shall be included in the
Financial Proposal. These shall normally cover remuneration for all
18
personnel, accommodation, air fare, equipment, printing of documents, all
kind of surveys, preparation of 3D modelling etc. The total amount
indicated in the Financial Proposal shall be without any condition
attached or subject to any assumption, and shall be final and binding. In
case any assumption or condition is indicated in the Financial Proposal, it
shall be considered non-responsive and liable to be rejected.
(ii)
The Financial Proposal shall take into account all expenses and tax
liabilities. For the avoidance of doubt, it is clarified that all taxes shall be
deemed to be included in the costs shown under different items of the
Financial Proposal. Further, all payments shall be subject to deduction of
taxes at source as per applicable laws. However, service tax, at applicable
rates, shall be reimbursed by the Authority on submission of documentary
evidence of deposit of service tax, to appropriate authorities.
(iii) Costs shall be expressed in Indian Rupees.
3.21.
Submission of Proposal
3.21.1. The applicants shall submit their Proposals in bound form with all pages
numbered serially and by giving an index of submissions. Each page of the
submission shall be initialled by an authorised representative of the applicant as
per the terms of the RFP.
3.21.2. Proposals should be sealed in an outer envelope which will bear the address of
WBHDCL, as indicated at Clause 3.9, and shall bear the name and address of the
applicant. It shall bear on top, “Do not open, except in presence of an
authorised person of WBHDCL”. The name of the work should be specified as
“Consultancy services for the construction and development of a commercial
complex cum computerized multiple layer car parking in the vacant land at K.S.
Roy Road, B.B.D. Bag (Kolkata) including preparation of a detailed feasibility
report, structuring of the Project on public private partnership mode, preparation
of concession agreement and assistance in selection of the Concessionaire for the
Project”.
3.21.3. If the envelope is not sealed and marked as instructed above, WBHDCL
assumes no responsibility for the misplacement or premature opening of the
contents of the Proposal submitted and consequent losses, if any, suffered by the
applicant and such Proposal shall be summarily rejected.
3.21.4. The aforesaid outer envelope will contain two separate sealed envelopes; one
clearly marked ‘Technical Proposal’ and the other clearly marked ‘Financial
Proposal’.
The envelope marked “Technical Proposal” shall contain, if applicable:
19
(i)
application in the prescribed format (Form 1 of Schedule 2) along with
Forms 2 to 13 of Schedule 2 and supporting documents;
(ii)
copy of the charter/ constitutional documents of the applicant (e.g. a copy of
the memorandum and articles of association if the applicant is a company, a
copy of the partnership deed if the applicant is a partnership firm, a copy of
the limited liability partnership agreement if the applicant is a limited
liability partnership (LLP), etc.);
It is hereby clarified that in the event the applicant is a Joint Venture, each
member of such Joint Venture shall submit copies of their respective
charter/constitutional documents in the manner specified above
(iii) copies of applicant’s duly audited balance sheet for the 3 (three) years
preceding FY 2013-14 ; and
(iv) Bid Security as specified in Clause No. 3.25.
The envelope marked “Financial Proposal” shall contain the financial proposal in
the prescribed format (Forms 1 and 2 of Schedule 3).
3.22.
Proposal Due Date
3.22.1. Proposals should be submitted at or before 15.30 hours on 07 July 2014 (the
“Proposal Due Date”) specified at Clause 3.8 at the address provided….
3.22.2. WBHDCL may, in its sole discretion, extend the Proposal Due Date by
issuing an addendum in accordance with Clause 3.16 uniformly for all
applicants.
3.23. Late Proposals
Proposals received by WBHDCL after the specified time on the Proposal Due Date
shall not be eligible for consideration and shall be summarily rejected.
3.24.
Modification/substitution/withdrawal of Proposals
3.24.1. An applicant may modify, substitute or withdraw its Proposal after submission,
provided that written notice of the modification, substitution or withdrawal is
received by WBHDCL prior to t h e Proposal Due Date. No Proposal shall be
modified, substituted or withdrawn by the applicant on or after the Proposal Due
Date.
3.24.2. The modification, substitution or withdrawal notice shall be prepared, sealed,
marked and delivered with the envelopes being additionally marked
“MODIFICATION”, “SUBSTITUTION” or “WITHDRAWAL”, as appropriate.
20
3.24.3. Any alteration/ modification in the Proposal or additional information or
material supplied subsequent to the Proposal Due Date, shall be disregarded
unless the same has been expressly sought for by WBHDCL.
3.25.
Bid Security
The applicants are required to deposit, along with their Proposal, a bid security of
Rs.1,00,000/- (Rupees One Lakh only) (the ‘Bid Security’) in the form of a demand draft
issued by any nationalized or scheduled bank in India in favour of the West Bengal
Highway Development Corporation Limited, on or after the date which is 10 (ten) days
prior to the Proposal Due Date and refundable not later than 60 (sixty) days from the
Proposal Due Date, except in the case of the Selected Applicant whose Bid Security shall
be retained till it has provided a Performance Security under the Agreement.
In addition to other provisions contained in this RFP for forfeiture of Bid Security, the
Bid Security shall be forfeited as damages without prejudice to any other right or remedy
that may be available to the Authority, under the following conditions:
(a) If an applicant submits a non-responsive Proposal.
(b) If an applicant is found to have a conflict of interest pursuant to Clause 3.13 of this
RFP.
(c) If an applicant withdraws its Proposal during the validity period as specified in
Clause 3.4 of this RFP.
(d) In the case of the Selected Applicant, if the members of the Joint Venture fail
within the specified time limit –
(i)
to execute the Agreement with the Authority, or
(ii)
to furnish the Performance Security within the period prescribed in the
Agreement.”
D.
3.26.
EVALUATION PROCESS
Evaluation of Proposals
3.26.1. WBHDCL shall open the Proposals at a time duly announced on the Proposal Due
Date, at the place specified in Clause 3.9 and in the presence of the applicants
who choose to attend. The envelopes marked “Technical Proposal” shall be
opened first. The envelopes marked “Financial Proposal” shall be kept sealed for
opening at a later date.
3.26.2. Any Proposal for which a written notice of withdrawal has been submitted shall
not be opened.
3.26.3. Prior to evaluation of Proposals, WBHDCL will determine whether each
Proposal is responsive to the requirements specified in this RFP. WBHDCL
may, in its sole discretion, reject any Proposal that is not responsive hereunder.
A Proposal shall be considered responsive only if:
21
(a)
The Proposal is received on or before the Proposal Due Date including any
extension thereof pursuant to Clause 3.22.2;
(b)
It is signed, sealed, bound together in hard cover and marked as stipulated
in Clauses 3.18 and 3.21;
(c)
It is accompanied by the power of attorney as specified in Clause. 3.1.2
along with an extract of the resolution passed by its board of directors (if
applicable) authorizing the issuance of such power of attorney;
(d)
It is accompanied with the necessary processing fee as specified in Clause
3.1.2;
(e)
It is accompanied with Bid Security as specified in Clause 3.25; and
(f)
It contains all the information (complete in all respects) as requested in this
RFP.
(g)
In case of Joint Venture, it is accompanied with a copy of the memorandum
of understanding (as per the format prescribed in Form 2A of Schedule 2 of
the RFP) executed between the members of the Joint Venture and a power
of attorney (as per the format prescribed in Form 3A of Schedule 2 of the
RFP) in favour of the Lead Member of the Joint Venture as specified in
Clause 3.18.2
3.26.4. WBHDCL reserves the right to reject any Proposal which is non-responsive and no
request for alteration, modification, substitution or withdrawal shall be entertained
by WBHDCL in respect of such Proposal.
3.26.5. WBHDCL shall subsequently examine and evaluate Proposals in accordance with
the Selection Process and the criteria set out in this RFP.
3.26.6. After the technical evaluation, WBHDCL shall prepare a list of pre-qualified and
shortlisted applicants for opening of their Financial Proposals. The date, time and
venue for announcing the result of technical evaluation and opening of Financial
Proposals will be uploaded on the website of WBHDCL. On that specified date,
before opening of the Financial Proposals, the list of pre-qualified and shortlisted
applicants along with their technical score will be read out. The Authority shall
also notify those Consultants whose Proposals did not meet the minimum
qualifying mark or were considered non-responsive to the RFP and TOR, that
their financial proposals will be returned unopened after completing the selection
process. The opening of Financial Proposals shall be done in the presence of the
respective representatives of the applicants who choose to be present. WBHDCL
will not entertain any query or clarification from applicants who fail to qualify
any of the stages of the Selection Process. The financial evaluation and final
22
ranking of the Proposals shall be carried out in terms of Clauses 4.2 and 4.3.
3.26.7. Applicants are advised that selection will be entirely at the discretion of
WBHDCL. Applicants will be deemed to have understood and agreed that no
explanation or justification on any aspect of the Selection Process will be given.
3.26.8. Any information contained in the Proposal shall not in any way be construed as
binding on WBHDCL, its agents, successors or assigns, but shall be binding
against the applicant if the Consultancy is subsequently awarded to it.
3.27.
Confidentiality
Information relating to the examination, clarification, evaluation and recommendation
for the selection of applicants shall not be disclosed to any person who is not
officially concerned with the Selection Process or is not a retained professional
adviser advising WBHDCL in relation to matters arising out of, or concerning the
Selection Process. WBHDCL will treat all information, submitted as part of a Proposal,
in confidence and will require all those who have access to such material to treat the
same in confidence. WBHDCL may not divulge any such information unless it is
directed to do so by any statutory entity that has the power under applicable law to
require its disclosure or is to enforce or assert any right or privilege of any statutory
entity and/or WBHDCL.
3.28.
Clarifications
3.28.1. To facilitate evaluation of Proposals, WBHDCL may, at its sole discretion, seek
clarifications from any applicant regarding its Proposal. Such clarification(s) shall
be provided within the time specified by WBHDCL for this purpose. Any request
for clarification(s) and all clarification(s) in response thereto shall be in writing.
3.28.2. If an applicant does not provide clarifications sought under Clause 3.28.1 above
within the specified time, its Proposal shall be liable to be rejected at the
discretion of WBHDCL. In case the Proposal is not rejected, WBHDCL may
proceed to evaluate the Proposal by construing the particulars requiring
clarification to the best of its understanding, and the applicant shall be barred
from subsequently questioning such interpretation of WBHDCL.
E.
3.29.
APPOINTMENT OF CONSULTANT
Negotiations
The Selected Applicant may, if necessary, be invited for negotiations. The negotiations
may not be necessarily for reducing the price of the Proposal, but also for re-confirming
the obligations of the Consultant under this RFP. Issues such as deployment of Key
Personnel, understanding of the RFP, methodology and quality of the work plan shall be
discussed during negotiations.
23
3.30.
Substitution of Key Personnel
3.30.1. WBHDCL will not normally consider any request of the Selected Applicant for
substitution of Key Personnel as the ranking of the Selected Applicant will be
based on the evaluation of Key Personnel and any change therein may upset the
ranking. Substitution will, however, be permitted at the sole discretion of
WBHDCL if the Key Personnel is not available for reasons of any incapacity,
death or due to health reasons, subject to equally or better qualified and
experienced personnel being provided to the satisfaction of WBHDCL.
3.30.2. WBHDCL expects all the Key Personnel to be available during implementation of
the Consultancy and fulfilment of the terms and conditions specified in this RFP
and the Agreement.
3.31.
Indemnity
The Consultant shall, subject to the provisions of the Agreement, indemnify WBHDCL
for any direct loss or damage that is caused due to any deficiency in services on the part
of the Consultant during implementation of the Consultancy and fulfilment of the terms
and conditions specified in this RFP and the Agreement.
3.32.
Award of Consultancy
3.33.
After selection, a letter of award (the “LOA”) shall be issued, in duplicate, by
WBHDCL to the Selected Applicant and the Selected Applicant shall, within 7 (seven)
days of the receipt of the LOA, sign and return the duplicate copy of the LOA in
acknowledgement thereof. In the event the duplicate copy of the LOA duly signed by
the Selected Applicant is not received b y the stipulated date, WBHDCL may, unless
it consents to extension of time for submission thereof, consider the next highest
ranking applicant and appoint the said applicant as the Consultant if the said applicant
fulfils all the eligibility criteria mentioned in this RFP.
It is hereby clarified that in the event the Selected Applicant is a Joint Venture, then the
LOA shall be issued jointly, in the name of each member of such Joint Venture
Execution of Agreement
After issuance of the LOA in favour of the Selected Applicant and acknowledgement by
WBHDCL of the receipt of the Performance Security from such Selected Applicant, the
Selected Applicant shall execute the Agreement within 7 (seven) days of the date of such
acknowledgement by WBHDCL. The Selected Applicant shall not be entitled to seek any
deviation in the Agreement.
It is hereby clarified that in the event the Selected Applicant is a Joint Venture, then the
Authority shall execute the Agreement with each of the members forming a part of such
Joint Venture
3.34.
Commencement of assignment
24
The Consultant shall commence the Consultancy at the Project Site within 7 (seven)
days from the date of the Agreement or such other date as may be mutually agreed. If
the Consultant fails to either sign the Agreement as specified in Clause 3.33 or
commence the Consultancy as specified herein, WBHDCL may invite the second ranked
applicant for negotiations.
3.35.
Proprietary data
All documents and other information provided by WBHDCL or submitted by an
applicant to WBHDCL shall remain or become the property of WBHDCL. Applicants
and the Consultant, as the case may be, are to treat all information as strictly
confidential. WBHDCL will not return any Proposal or any information related thereto
to any of the applicants. All information collected, analysed, processed or in whatever
manner provided by the applicants and/or the Consultant, as the case may be, to
WBHDCL in relation to the Consultancy shall be the property of WBHDCL.
4.
4.1.
CRITERIA FOR EVALUATION
Evaluation of Technical Proposals
4.1.1.
In the first stage, the Technical Proposal will be evaluated on the basis of
applicant’s experience, its understanding of TOR, proposed methodology and
work plan and the experience of Key Personnel. Only those applicants who
score 75 marks or more out of 100 in their Technical Proposals shall qualify for
the second stage of the Selection Process being opening the Financial
Proposals.
4.1.2.
The scoring criteria to be used for evaluation shall be as follows.
S.no.
Parameter
Maximu
m Marks
Criteria
1
Relevant
Experience of the
Applicant
20
50% of the maximum marks shall be
awarded for the number of eligible
assignments (Ref. Clause 4.1.3)
undertaken by the Sole Firm or by the
Lead Member of a Joint Venture, as
the case may be. The remaining 50%
shall be awarded for assignments in
multi-level parking projects.
2
Proposed
Methodology and
Work
Plan
5
Evaluation will be based on the quality
of submissions and their methodology
and work plan.
25
S.no.
Parameter
3
Relevant
Experience of the
Key Personnel
Project Team
Leader
Architect
Structural
Engineer
Mechanical
Engineer
Traffic Expert
Finance
Specialist
Legal Expert
Maximu
m Marks
75
(15)
(10)
(9)
Criteria
The marks for each Key Personnel
shall be awarded for the qualification
and
the
number
of
eligible
assignments (Ref.Clause4.1.3) the
respective Key Personnel has worked
on and the comparative size of eligible
assignments and other similar works
in infrastructure sector.
(9)
(12)
(10)
(10)
4.1.3. Eligible Assignment
4.1.3.1. For the purposes of determining Conditions of Eligibility and for evaluating the
Proposals under this RFP, advisory/ consultancy assignments in respect of
preparation of feasibility report and transaction / bid process management, for
infrastructure project under PPP mode having an estimated capital cost (excluding
land) of at least Rs. 20,00,00,000 (Rupees Twenty Crores only) in case of a project in
India, and [US $ 4 million] for projects elsewhere shall be deemed as eligible
assignments.
4.1.3.2.Provided that a Sole Firm or Lead Member of a Joint Venture (as the case may be)
claiming credit for an eligible assignment shall have, prior to the Proposal Due Date,
received professional fees of at least Rs. 20,00,000/- (Rupees Twenty Lakhs only) for
such assignment, and where credit is being claimed by a Key Personnel, she/ he
should have completed the relevant assignment prior to the Proposal Due Date.
4.2.
Evaluation of Financial Proposal
Each Financial Proposal will be assigned a financial score Sf.
WBHDCL will determine whether the financial proposals are responsive as per terms of
RFP, complete, unqualified and unconditional.
The Evaluation Committee will correct any computational errors. When correcting
computational errors, in case of discrepancy between a partial amount and the total
amount, or between word and figures the formers will prevail. In addition to the above
corrections, activities and items described in the Technical Proposal but not priced, shall
be assumed to be included in the prices of other activities or items.
26
The lowest evaluated Financial Proposal (Fm) will be given the maximum financial score
(Sf) of 100 points.
The formula for determining the financial scores is the following:
Sf = 100 x Fm/F
where, Sf is the financial score, Fm is the lowest price and F the price of the Proposal
under consideration.
4.3.
Final Scoring
Proposals will be ranked according to their combined technical (St) and financial (Sf)
scores using the weights (T = the weight given to the Technical Proposal; P = the weight
given to the Financial Proposal; T + P = 1) indicated in the Data Sheet: S = St x T% + Sf
x P%. The shortlisted applicant achieving the highest combined technical and financial
score will be invited for negotiations as the Selected Applicant.
The weights given to Technical and Financial Proposals are:
T = 0.80 and P = 0.20
5.
FRAUD AND CORRUPT PRACTICES
5.1
The applicants (including its shareholders, partners, members of the Joint Venture, as the
case may be) and their respective officers, employees, agents and advisers shall observe
the highest standard of ethics during the Selection Process. Notwithstanding anything to
the contrary contained in this RFP, the Authority shall be entitled to reject a Proposal of
the applicant without being liable in any manner whatsoever to such applicant, if it
determines that the applicant has, directly or indirectly or through an agent, engaged in
corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive
practice (collectively the “Prohibited Practices”) in the Selection Process. In such an
event, the Authority shall, without prejudice to its other rights or remedies, forfeit and
appropriate the Bid Security or bank guarantee required to be submitted by the
Consultant for an amount equal to 10% (ten percent) of the accepted consultancy cost
(the “Performance Security”), as the case may be, as mutually agreed genuine preestimated compensation and damages payable to the Authority for, inter alia, time, cost
and effort of the Authority, with regard to the RFP, including consideration and
evaluation of such applicant’s Proposal.
5.2
Without prejudice to the rights of the Authority under Clause 5.1 hereinabove and the
rights and remedies which the Authority may have under the LOA or the Agreement, if
an applicant or the Consultant, as the case may be, is found by the Authority to have
directly or indirectly or through an agent, engaged or indulged in any Prohibited Practices
during the Selection Process, or after the issue of the LOA or the execution of the
Agreement, such applicant or Consultant shall not be eligible to participate in any tender
or RFP issued by the Authority during a period of 2 (two) years from the date such
27
applicant or Consultant, as the case may be, is found by the Authority to have directly or
through an agent, engaged or indulged in any Prohibited Practices, as the case may be.
5.3
For the purposes of this Clause, the following terms shall have the meaning hereinafter
respectively assigned to them:
(a)
“corrupt practice” means (i) the offering, giving, receiving or soliciting, directly or
indirectly, of anything of value to influence the action of any person connected
with the Selection Process (for avoidance of doubt, offering of employment to or
employing or engaging in any manner whatsoever, directly or indirectly, any
official of the Authority who is or has been associated in any manner, directly or
indirectly with the Selection Process or the LOA or has dealt with matters
concerning the Agreement or arising therefrom, before or after the execution
thereof, at any time prior to the expiry of 1 (one) year from the date such official
resigns or retires from or otherwise ceases to be in the service of the Authority,
shall be deemed to constitute influencing the actions of a person connected with the
Selection Process); or (ii) engaging in any manner whatsoever, whether during the
Selection Process or after the issue of the LOA or after the execution of the
Agreement, as the case may be, any person in respect of any matter relating to the
Project or the LOA or the Agreement, who at any time has been or is a legal,
financial or technical consultant/ adviser of the Authority in relation to any matter
concerning the Project;
(b)
“fraudulent practice” means a misrepresentation or omission of facts or disclosure
of incomplete facts, in order to influence the Selection Process;
(c)
“coercive practice” means impairing or harming or threatening to impair or harm,
directly or indirectly, any persons or property to influence any person’s
participation or action in the Selection Process;
(d)
“undesirable practice” means (i) establishing contact with any person connected
with or employed or engaged by the Authority with the objective of canvassing,
lobbying or in any manner influencing or attempting to influence the Selection
Process; or (ii) having a Conflict of Interest; and
(e)
“restrictive practice” means forming a cartel or arriving at any understanding or
arrangement among applicants with the objective of restricting or manipulating a
full and fair competition in the Selection Process.
6.
PRE-PROPOSAL CONFERENCE
6.1
Pre-proposal conference of the applicants shall be convened at the designated date, time
and place. All prequalified applicants shall be allowed to participate in the pre-proposal
conference. A maximum of 2 (two) representatives of each pre-qualified applicant shall
be allowed to participate on production of an authority letter from the concerned
applicant.
28
6.2
During the course of the pre-proposal conference, the applicants will be free to seek
clarifications and make suggestions for consideration of the Authority. The Authority
shall endeavor to provide clarifications and such further information as it may, in its sole
discretion, consider appropriate for facilitating a fair, transparent and competitive
Selection Process.
7.
MISCELLANEOUS
7.1
The Selection Process shall be governed by, and construed in accordance with, the laws
of India and the courts at Kolkata shall have exclusive jurisdiction over all disputes
arising under, pursuant to and/or in connection with the Selection Process.
7.2
The Authority, in its sole discretion and without incurring any obligation or liability,
reserves the right, at any time, to:
7.3
(a)
suspend and/or cancel the Selection Process and/or amend and/or supplement the
Selection Process or modify the dates or other terms and conditions relating
thereto;
(b)
consult with any applicant in order to receive clarification or further information;
(c)
retain any information and/or evidence submitted to the Authority by, on behalf of
and/or in relation to any applicant; and/or
(d)
independently verify, disqualify, reject and/or accept any and all submissions or
other information and/or evidence submitted by or on behalf of any applicant.
It shall be deemed that by submitting a Proposal, the applicant agrees and releases the
Authority, its employees, agents and advisers, irrevocably, unconditionally, fully and
finally from any and all liability for claims, losses, damages, costs, expenses or liabilities
in any way related to or arising from the exercise of any rights and/or performance of any
obligations hereunder, pursuant hereto and/or in connection herewith and waives any and
all rights and/or claims it may have in this respect, whether actual or contingent, whether
present or future.
29
Schedule 1
TERMS OF REFERENCE (TOR)
Introduction
Government of West Bengal has set up a dedicated organization named West Bengal Highway
Development Corporation Limited (WBHDCL) under Public Works Department with mandate
to develop and upgrade the core road network in the State of West Bengal consisting of state
highways and major district roads, progressively to put in place a robust surface transport network
in the state that will rejuvenate connectivity between places of agricultural, industrial, economic
and cultural hubs with the National Highway network in the State. This is an initiative of the State
Government in giving emphasis to speedy execution of road projects and attracting more
investment in this sector.
Besides improvement of the road network, the WBHDCL also intends to provide for the road
users’ way side amenities like, truck terminals, parking lots, snacks bars, rest rooms, telephone
booths, kiosks, petrol pumps, weigh bridges, etc., on National and State Highways or at places
short distance from such roads. This would make the travel safe, comfortable and convenient for
both the travellers and the drivers.
The Project Site is one of the important resources of WBHDCL being a plot of land located in
prime location of the city at K.S. Roy Road, B.B.D. Bag having an area of 1877 (one thousand
eight hundred seventy seven only) square metres.
Objectives
Parking in B.B.D. Bag, the heart of the city has always been a hassle as is the case with most inner
city areas. Unorganized on-street parking is leading to major congestion and inadequate walkways
for public. Moreover, on-street parking and encroachment is reducing road capacity. One solution
to meet this demand is the construction of multi-level car parking systems to maximize car
parking capacity by expanding parking space vertically rather than horizontally as it exists in the
case of most on-ground parking. This would be a multiplicative expansion of horizontal area
coverage, subject to development control norms, thus accommodating more vehicles.
Multilevel car parking refers to a structure or building with multiple levels or floors both
underground and over-ground designed to enable efficient and safe parking of vehicles. It is
basically a stacked parking lot used for increasing equivalent car space (ECS) at the parking site.
A multiple layer car parking offers enhanced comfort and security. It can be conventional as well
as automated.
WBHDCL has contemplated development of the Project at the Project Site shown in the map
specified in Appendix 1 so as to achieve several objectives such as providing parking space for
cars as per traffic demand and space for commercial activities like offices, shops, food court, etc.
(non-residential) in accordance with local commercial demand. WBHDCL intends to monitise the
asset in accordance with the requirement. This would also improve the traffic situation and avoid
reckless parking in the adjoining area, protect the land from unauthorized encroachment, generate
revenue out of the infrastructure and bring about structured development in the area.
30
To ensure the latest design and elevations in all constructions, it has been decided to appoint the
Consultant for preparation of feasibility study report, structuring of the Project on PPP mode,
preparation of Concession Agreement and assistance in selection of the Concessionaire for the
construction and development of the Project at the Project Site.
It may be noted here that the floor area ratio (FAR) limit would be applicable for the Project with
due consideration of car parking as per the norms of the Kolkata Municipal Corporation. As per
preliminary assessment of Public Works Department, there may be four types of scenarios as
follows:
Scenario 1: G+1 Commercial, 11 floors parking, 40% ground coverage (car parking 475 nos)
Scenario 2: G+2 Commercial, 10 floors parking, 40% ground coverage (car parking 432 nos)
Scenario 3: G+1 Commercial, 11 floors parking, 50% ground coverage (car parking 594 nos)
Scenario 4: G+2 Commercial, 10 floors parking, 50% ground coverage (car parking 540 nos)
However, the Consultant would be required to do a detailed study and develop models for
commercial complex and car parking facilities on its own with the best practices of architectural
and engineering design including design for safety measures with due consideration of necessary
stipulations and guidelines of Kolkata Municipal Corporation, Fire Department, other statutory
rules and regulations as applicable and the financial viability
The broad objectives of the assignment may be summarized as below:
1) Preparation of detailed feasibility report with recommendations of PPP modelling;
2) Structuring of the Project on PPP mode;
3) Preparation of bidding documents for selection of the Concessionaire and also preparing the
Concession Agreement to be executed between the Authority and the Concessionaire;
4) Assisting WBHDCL in undertaking the bidding process towards selection of the
Concessionaire including market sensitization, holding pre bid conference, handholding entire
bidding process, and recommending the preferred bidder;
5) Assist in the signing of the Concession Agreement with the Concessionaire; and
6) Assisting (on behalf of WBHDCL) the Concessionaire in achieving financial closure for the
Project.
Scope of services:
The scope of Consultancy services would include preparation of detailed techno-feasibility report,
structuring of the Project on public private partnership mode, bid process management,
preparation of the Concession Agreement, preparation of bidding documents and providing
assistance to the Authority in the selection of the Concessionaire and Project supervision in
different stages as mentioned below:
Stage I:
Detailed feasibility study: Detailed feasibility study shall include, but not be limited
to, the following:
1. Traffic survey of parking for the assessment of demand for multiple layer car
31
parking under existing conditions in the adjacent areas and projection of demand
including generated demand after completion of construction and thereafter at every 5
(five) years interval with yearly growth up to a horizon period of 30 (thirty) years.
The Consultant shall study the willingness-to-pay of car users for the proposed
parking facility. It should also develop a basis for studying the parking demand at
various parking fee levels. The broad outlines of the survey may be briefed as below
but not limited to:
a) Identification of parking survey stations: The Consultant will identify representative
locations for parking survey stations in the entire project area and get approval of
the Authority of list of such locations before starting the parking survey. In doing
so, he will consult officials of WBHDCL, PWD, Traffic police, KMC and other
stakeholders.
b) Inventory of parking facilities: The Consultant will collect information on the current
condition of on and off street parking facilities within a radius not less than 1 km.
This will include following but not limited to (i) the location, condition, type and
number of authorized parking spaces, (ii) parking rates, (iii) time limits, hours of
availability and any other restrictions, (iv) layout of spaces, geometry and other
features such as crosswalks and city services, (v) ownership of the off-street
facilities, (vi) extent of unauthorized parking and spaces used on streets, etc.
c) Accumulation counts: Consultant will collect data on the number of vehicles
parked in the study area at each parking survey station during a specific period of
time. Accumulation data will be summarized by time period for the entire study
area. The occupancy will be calculated by taking accumulation/total spaces.
Peaking characteristics shall be determined by graphing the accumulation data by
time of day.
d) Analysis of parking by land use: Consultant will conduct representative sample
survey for parking spaces available for various land uses with reference to IRC
standards and KMC norms.
2. Market survey for the assessment of need for commercial complex and the nature
of commercial complex most suitable in the Project Site;
3. Topographic survey of the Project Site using total station, GPS, etc.;
4. Sub-soil investigations for bore holes up to suitable depth of founding (not less than
30 metres) in soil including all laboratory testing;
5. Preparation of a brief methodology on computerized multiple layer car parking
systems with the preferred alternative (automatic/ semi-automatic);
6. Preparation of concept plan of commercial complex cum computerized multiple
layer car parking with due consideration of necessary stipulations and guidelines of
Kolkata Municipal Corporation, Fire Department, other statutory rules and
regulations as applicable. The Consultant shall make a number of concept plans
(minimum three numbers) and recommend the one most suitable for the Authority.
32
The Consultant shall also make a 3D presentation of the recommended concept
plan indicating therein arrangement of parking lot and commercial complexes in
1:100 scale or any other suitable scale with fibre board / card board or any other
suitable material.
7. Preliminary mechanical and structural design and preparation of general
arrangement drawings of commercial complex cum computerized multiple layer
car parking on the basis of concept plan
8. Cost estimate showing therein the cost of land development, utility shifting,
environmental mitigation, cost of construction including finishing items, cost of
machineries including installation, electrification, price escalation, contingencies,
etc. as applicable.
9. Proposal for parking fee structure in computerized multiple layer car parking and
lease/ rent for commercial establishment. This would be based on market survey in
other such structures in Kolkata and other cities and a study on ‘willingness to
pay’. The Consultant shall propose a number of fee/lease/rent structures and
recommend the one providing optimum benefit to the Authority based on rational
evaluation of alternatives. The Consultant shall also assess the likely enhancement
of fee/lease/rent values over the concession period.
10.The Consultant shall also make operating expenses forecast and revenue
projections including suggestions for alternate source of revenues like
advertisements, etc.
11. The Authority desires to retain a portion of the parking lots and hand over the
remaining portion of the parking place and commercial complex (non-residential)
to the Concessionaire. The Consultant shall discuss such matters with the Authority
during financial analysis.
12. Financial analysis for PPP suitability with all probable sets of fee structures, cost
estimates, viability gap, concession period including sensitivity analysis, using
parameters like IRR, NPV, etc. This shall also include an iterative process to
suggest a likely fee structure for parking/lease/ rent for achieving financial viability
without viability gap funding and with different sets of viability gap funding with
corresponding concession period. The Consultant shall also make financial
assessment using commonly adopted forms of PPP including DBFOT/ BOT (user
fee based) / BOT (annuity based) etc. and recommend for the most suitable model
for the Authority.
Stage II:
Structuring of the Project on public private partnership mode and preparation of
the Concession Agreement: This stage of Project structuring and preparation of the
Concession Agreement are conditional and the Consultant shall progress to Stage II
only after getting in-principle approval from the Authority on Stage I, i.e. feasibility
study. This stage shall include, but not be limited to, the following:
33
1. PPP structuring report: Based on the feasibility study, the Project structure needs to
be finalized by providing optimal risk allocation to the stakeholders including the
operator, government agencies and users. The Consultant shall prepare various
options of contractual structures including analysis of merits and demerits of each
of them carry out sensitivity analysis for each of these options and recommend the
most suitable option beneficial to the Authority.
2. The Consultant shall prepare the Concession Agreement in accordance with the
guidelines available with the Planning Commission and model concession
agreements already in use in similar PPP projects of the Government of India,
Government of West Bengal and other State Governments. The Consultant shall
also arrange for legal vetting of the Concession Agreement from an independent
senior level legal consultant, approved by the Authority. After such legal vetting,
the Consultant shall submit the Concession Agreement to the Authority for
acceptance.
3. The Consultant shall arrange for a stakeholders’ meeting comprising the
representatives of relevant authorities like Public Works Department, Finance
Department, Kolkata Municipal Corporation, Fire Department, Traffic Police, etc.
and prospective Concessionaires having experience in similar kind of assignments
for feedback on preparedness, market expectations, etc. The Consultant may use
the feedback information / data during preparation of Project RFP in consultation
with the Authority.
Stage III: Assistance in selection of the Concessionaire: This stage of selection process of the
Concessionaire is conditional and the Consultant shall obtain the in-principle approval
from the Authority on the submission of Stage II prior to commencement of Stage III.
This stage shall include, but not be limited to, the following activities:
1. The Consultant shall prepare the request for proposal documents for selection of
the Concessionaire (“Project RFP”) in consultation with the Authority. The
Consultant shall also arrange for legal vetting of the Project RFP from an
independent legal consultant, approved by the Authority.
2. The Consultant shall assist the Authority in the bidding process starting from
issuing of the Project RFP, assisting the bid evaluation committee during the entire
bid process management including pre-bid meetings, project marketing for better
response including visits to the Project Site with prospective bidders, etc.,
assistance during evaluation of technical and financial bids including compatibility
of the proposals in respect of existing laws, rules and regulations of the relevant
authorities, structural adequacy, etc.. The Consultant shall also assist the Authority
during issuance of letter of intent, negotiations with the selected bidder, if required,
agreement signing with the preferred bidder, etc. up to the stage of financial closure
of the Project.
34
Deliverables:
Sl. No.
Tasks
1
Inception Report (Detailed methodology, Task
Assignment
&
Manning
Schedule;
Work
Programme, Proforma for data collection, etc.)
Stage I: Draft Detailed Feasibility Report including
financial analysis
2
3
4
5
6
7
8
Stage I: Final Detailed Feasibility Report (after
incorporating necessary observations of the
Authority)
Stage II (if the Authority approves in-principle on
submission of Stage I): Draft PPP structuring report
and draft Concession Agreement
Stage II: Final
PPP structuring report and
Concession
Agreement(after
incorporating
necessary observations of the Authority including
vetted Concession Agreement)
Stage III: (if the Authority approves in-principle on
submission of Stage II): Submission of the Project
RFP
Stage III: Submission of vetted Project RFP (after
incorporating necessary observations of the
Authority)
Stage III: Assistance in evaluation of proposals
submitted by the bidders, selection of the
successful bidder, etc. up to the stage of financial
closure of the Project
No of
copies
Cumulative
Duration from
commencement
(weeks)
4 hard
copies +
Soft Copy
6 hard
copies +
Soft Copy
6 hard
copies +
Soft Copy
6 hard
copies +
Soft Copy
1
9
12
15
6 hard
copies +
Soft Copy
18
6 hard
copies +
Soft Copy
6 hard
copies +
Soft Copy
22
24
46
Note: All Draft and Final Report shall be submitted with all data files in editable Format as well as
pdf Format as acceptable to the WBHDCL in soft / hard copy as applicable.
Requirement of Key personnel:
Sl.
No.
1
2
Key
personnel
Project Team
Leader
Architect
Expected qualification
Man months
required
MBA (Finance) / Chartered Accountant with at
least 15 (fifteen) years’ experience in related area.
He/ she should have worked on at least 3 (three)
similar assignments of which at least 1 (one)
should have been a multi-layer commercial
complex cum car parking project implemented
under PPP mode.
10.75
Master's Degree in Architecture or equivalent (M
Plan, Urban Designer, Landscape Architecture,
Conservation Architecture, etc.) with at least 10
3
35
Sl.
No.
Key
personnel
Expected qualification
Man months
required
(ten) years’ experience in related area. He/ she
should have worked on at least 1 (one) multi-layer
commercial complex cum car parking project.
3
Structural
Engineer
4
Mechanical
Engineer
5
Traffic Expert
6
Finance
Specialist
7
Legal Expert
Bachelors’ Degree in Civil Engineering with at
least 10 (ten) years’ experience in structural
design of multi-storied buildings.
Bachelor’s degree in Mechanical Engineering with
at least 10 (ten) years’ experience in design of
industrial structures. He/ she should have worked
on at least 1 (one) multi-storied parking project.
Bachelors’ Degree in Civil Engineering with
Master’s degree in Transportation Engineering
with at least 10 (ten) years’ experience in traffic
and transportation projects.
Chartered accountant or MBA (Finance) from
reputed educational Institution/ University, with at
least 10 (ten) years’ experience in project finance
assessments and modelling for infrastructure
development projects.
Bachelor’s degree in Law with at least 5 (five)
years’ experience in legal advisory services
related to infrastructure projects. He/ she should
have worked on at least 2 (two) PPP projects.
3
3
1.75
5.5
2
Terms and payment:
Sl. No.
Stage of payment
1
2
3
4
On submission and acceptance of Inception Report
On submission of draft Detailed Feasibility Report
On submission of final Detailed Feasibility Report
On submission of draft PPP structuring report and draft
Concession Agreement
On submission of final PPP structuring report and
Concession Agreement
On submission of draft Project RFP for selection of
Concessionaire
On submission of vetted Project RFP for selection of
Concessionaire
After financial closure with the Concessionaire
5
6
7
8
Payment (% of
contract amount)
10
15
10
15
10
10
10
20
In the event the Selected Applicant is a Joint Venture, then the members of the Joint Venture shall
be jointly and severally liable to perform the Consultancy services in the manner set out herein
above.
36
SCHEDULE – 2
TECHNICAL PROPOSAL (Technical Bid)
37
Schedule 2
Form 1
Letter of Proposal
(On applicant’s letter head)
(Date and Reference)
To
The Managing Director
West Bengal Highway Development Corporation Limited
Sub: Appointment of consultant for carrying out consultancy services in relation to
the Project including preparation of detailed feasibility report, structuring of the
Project on public private partnership mode, preparation of Concession Agreement
and assistance in selection of the Concessionaire for construction and development of
the Project at the Project Site.
Dear Sir,
With reference to your RFP dated___________. We, having examined all relevant documents
and understood their contents, hereby submit our Proposal for selection as Consultant for
preparation of detailed feasibility report, structuring of the Project on public private partnership
mode, preparation of Concession Agreement and assistance in selection of the Concessionaire
for construction and development of the Project being “Commercial complex cum
computerized multilevel car parking facility in the vacant land at K.S. Roy Road, B.B.D Bag
(Kolkata) having an area of 1877 (one thousand eight hundred seventy seven) square meters.”
The Proposal is unconditional and unqualified.
If the applicant is a Joint Venture, insert the following: We are submitting our Proposal as a
Joint Venture with: [Insert a list with full name and the legal address of each member, and
indicate the Lead Member]. We have attached a copy [insert: “of the memorandum of
understanding of the Joint Venture”] signed by every participating member, which details the
likely legal structure of and the confirmation of joint and severable liability of the members of
the said Joint Venture.
OR
If the applicant’s Proposal includes Sub-consultants, insert the following: We are submitting our
Proposal with the following firms as Sub-consultants: [Insert a list with full name and address of
each Sub-consultant.
1.
All information provided in the Proposal and in the appendices is true and correct and all
documents accompanying such Proposal are true copies of their respective originals.
2.
This statement is made for the express purpose of appointment as the Consultant for the
aforesaid Project.
38
3.
We shall make available to WBHDCL any additional information it may deem
necessary or require for supplementing or authenticating the Proposal.
4.
We acknowledge the right of WBHDCL to reject our Proposal without assigning any reason
or otherwise and hereby waive our right to challenge the same on any account whatsoever.
5.
We certify that in the last 3 (three) years, we or any of our Associates have neither failed to
perform on any contract, as evidenced by imposition of a penalty by an arbitral or
judicial award or a judicial pronouncement or arbitration award against us, nor been
expelled from any project or contract by any public authority nor have had any
contract terminated by any public authority for breach on our part.
6.
We declare that:
(a) We have examined and have no reservations to the RFP;
(b) We do not have any Conflict of Interest in accordance with Clause 3.1.3 of the RFP;
(c) We have not directly or indirectly or through an agent engaged or indulged in any
Prohibited Practices, in respect of any tender or request for proposal issued by or any
agreement entered into with WBHDCL or any other public sector enterprise or any
government, Central or State or local authority,
(d) We hereby certify that we have taken steps to ensure that no person acting for us or on
our behalf will engage in any Prohibited Practices.
7.
We understand that you may cancel the Selection Process at any time and that you are
neither bound to accept any Proposal that you may receive nor to select the
Consultant.
8.
We agree and understand that the Proposal is subject to the provisions of the RFP. In no
case, shall /we have any claim or right of whatsoever nature if the Consultancy for the
Project is not awarded to us or our Proposal is not opened or rejected.
9.
We agree to keep this offer valid for 90 (ninety) days from the Proposal Due Date
specified in the RFP.
10. We have studied th e RFP and all other documents carefully and also surveyed the Project
Site. We understand that except to the extent as expressly set forth in the
Agreement, we shall have no claim, right or title arising out of any documents or
information provided to us by WBHDCL or in respect of any matter arising out of or
concerning or relating to the Selection Process including the award of Consultancy. The
Technical Proposal and the Financial Proposal are being submitted in separate envelopes as
specified in the RFP. The Technical Proposal read with the Financial Proposal shall
constitute the Proposal which shall be binding on us.
11. We agree and undertake to abide by all the terms and conditions of the RFP. In witness
thereof, we submit this Proposal under and in accordance with the terms of the RFP.
39
12. Capitalised terms used herein shall have the meaning assigned to them in the RFP dated
____________.
Yours faithfully,
(Signature, name and designation of the authorized signatory)
(Name and seal of the Sole Firm / Joint Venture)
[For a Joint Venture, either all members shall sign or only the Lead Member, in which case the
power of attorney in favour of such Lead Member to sign on behalf of all members of the Joint
Venture shall be attached]
40
Schedule 2
Form 2
Particulars of the Applicant
[In case of Joint Venture, for each member of the Joint Venture for this assignment
1.1
Title of Consultancy:
Preparation of detailed feasibility report, structuring of the Project on public private
partnership mode, preparation of Concession Agreement and assistance in selection of
the Concessionaire for construction and development of the Project being “commercial
complex cum computerized multilevel car parking facility” at the Project Site being the
vacant land at K.S. Roy Road, B.B.D Bag (Kolkata) having an area of 1877 (one
thousand eight hundred seventy seven) square meters.
1.2
Title of Project:
[*************]
1.3
State the following (as applicable):
Name of the applicant:
Legal status (e.g. incorporated private/ public company, government company,
unincorporated business, partnership etc.):
Country of incorporation:
Registered address:
Year of incorporation:
Year of commencement of business (if applicable):
Principal place of business:
Brief description of the applicant including details of its main lines of
Business:
Name, designation, address and phone numbers of authorised representative
41
of the applicant:
Name:
Designation:
Company:
Address:
Phone No.:
Fax No. :
E-mail add:
42
Schedule 2
Form 2A
(Memorandum of understanding to be executed between the members of the Joint
Venture applicant)
is to be replaced by the draft of the memorandum of understanding attached herewith.
(To be executed on stamp paper of appropriate value as applicable in the state of execution)
THIS MEMEORANDUM OF UNDERSTANDING (“MoU”) for consortium/joint venture
is entered into on this the ………… day of ………, 20....…
AMONGST
1.
[▪], proprietorship firm (with the proprietor having residence in India), / limited
liability partnership or partnership firm (with all the partners having residence in India) /
company registered in India under Indian Companies Act 1956 (as amended or
substituted)and having its registered office at ………… (hereinafter referred to as the “First
Part” which expression shall, unless repugnant to the context include its successors and
permitted assigns)
AND
2.
[▪], proprietorship firm (with the proprietor having residence in India), / limited
liability partnership or partnership firm (with all the partners having residence in India) /
company registered in India under Indian Companies Act 1956 (as amended or substituted)
and having its registered office at ………… (hereinafter referred to as the “Second Part”
which expression shall, unless repugnant to the context include its successors and permitted
assigns)
The above mentioned parties of the FIRST and SECOND PART are collectively referred to
as the “Parties” and each is individually referred to as a “Party”
43
WHEREAS
(A)
West Bengal Highway Development Corporation Limited (hereinafter referred to as
the “Authority” which expression shall, unless repugnant to the context or meaning thereof,
include its administrators, successors and assigns) has invited proposals (“Proposals”) by its
Request for Proposal No. ____dated ________, 2013 (“RFP”) for consultancy services in
relation to construction and development of a commercial complex cum computerized
multiple layer car parking in the vacant land at K.S. Roy Road, B.B.D Bag (Kolkata)
including preparation of techno feasibility reports, bid process management, development of
the project in conformity with the terms of reference specified in Schedule-I of the RFP,
preparation of concession agreement and supervision of the project till the achievement of
the financial closure (the “Consultancy”).
(B)
The Parties are interested in jointly bidding for the Consultancy in accordance with
the terms and conditions of the RFP document and other bid documents in respect of the
Consultancy, and
(C)
It is a necessary condition under the RFP document that the parties applying jointly
for the Consultancy, shall enter into this MoU and furnish a copy thereof with the Proposal.
NOW IT IS HEREBY AGREED as follows:
1.
Definitions and Interpretations
1.1
In this MoU, the capitalised terms shall, unless the context otherwise requires, have
the meaning ascribed thereto under the RFP.
2.
Joint Venture
2.1
The Parties do hereby irrevocably constitute a consortium/joint venture (the “Joint
Venture”) for the purposes of jointly participating in the bidding process for
selection of the Consultant for carrying out the Consultancy.
44
2.2
The Parties hereby undertake to participate in the Bidding Process only through this
Joint Venture and not individually and/ or through any other Joint Venture constituted
for the Consultancy, either directly or indirectly or through any of their Associates.
2.3
The Parties hereto shall co-operate in making such formal submissions as is required
under the terms of the RFP and the clarifications/modifications/additions/corrigenda
issued in lieu thereof, if any, as well as in taking any formal actions required or
deemed to be appropriate by both Parties for the purposes of participation in the
bidding process.
3.
Covenants
3.1
The Parties hereby undertake that in the event the Joint Venture is declared as the
Selected Applicant, the LOA for awarding the Consultancy shall be issued jointly in
the name of each Party hereto and not in the name of the Joint Venture.
3.2
After the issuance of the LOA in favour of the Parties hereto and acknowledgement
by the Authority of the receipt of Performance Security from the Parties, as provided
for under the RFP, the Authority shall execute the Agreement, with each Party hereto
being made party to such Agreement, within 7 (seven) days of the date of such
acknowledgement by the Authority.
4.
Role of the Parties
4.1
The Parties hereby undertake to perform the roles and responsibilities as described
below:
a)
Party of the First Part shall be the lead member of the Joint Venture formed
hereunder (“Lead Member”) and shall have the power of attorney from the
Party of the Second Part for conducting all business for and on behalf of the
Joint Venture and/or the Party of the Second Part during the bidding process
and until the execution of the Agreement between the Parties and the
Authority; and
45
b)
Each Party shall bear its own costs with respect to entering into this MoU and
up to the signing of the Agreement with the Authority.
c)
The Lead Member shall receive the payment on behalf of the Parties from the
Authority for the Consultancy and immediately upon receipt of such payment,
the Lead Member shall pay to the Party of the Second Part its share of such
payment, which share shall be agreed between the Parties based on the
personnel deployment and responsibilities assigned.
5.
Joint and Several Liabilities
5.1
The Parties do hereby undertake to be jointly and severally responsible for all
obligations and liabilities relating to the Consultancy and in accordance with the
terms of the RFP document and the Agreement.
6.
Representation of the Parties
6.1
Each Party represents to the other Parties as of the date of this MoU that:
(a)
Such Party is duly organised, validly existing and in good standing under the
laws of its incorporation and has all requisite power and authority to enter into
this MoU;
(b)
The execution, delivery and performance by such Party of this MoU has been
authorised by all necessary and appropriate corporate or governmental action
and a copy of the extract of the charter documents and board resolution/
power of attorney in favour of the person executing this MoU for the
delegation of power and authority to execute this MoU on behalf of the said
Party is annexed to this MoU, and will not, to the best of its knowledge:
(i)
require any consent or approval not already obtained; or
(ii)
violate any Applicable Law presently in effect and having applicability
to ; or
46
(iii) violate the memorandum and articles of association, by-laws or other
applicable organisational documents thereof; or
(iv) violate any clearance, permit, concession, grant, license or other
governmental authorisation, approval, judgment, order or decree or any
mortgage agreement, indenture or any other instrument to which such
Party is a party or by which such Party or any of its properties or assets
are bound or that is otherwise applicable to such Party; or
(v)
create or impose any liens, mortgages, pledges, claims, security
interests, charges or encumbrances or obligations to create a lien,
charge, pledge, security interest, encumbrances or mortgage in or on the
property of such Party, except for encumbrances that would not,
individually or in the aggregate, have a material adverse effect on the
financial condition or prospects or business of such Party so as to
prevent such Party from fulfilling its obligations under this MoU or the
Agreement thereafter;
(c)
this MoU is the legal and binding obligation of such Party, enforceable in
accordance with its terms against it; and
(d)
there is no litigation pending or, to the best of such Party’s knowledge,
threatened to which it or any of its affiliates is a party that presently affects or
which would have a material adverse effect on the financial condition or
prospects or business of such Party in the fulfillment of its obligations under
this MoU or the Agreement thereafter.
7.
7.1
Termination
This MoU shall be effective from the date hereof and shall continue in full force and
effect until expiry or termination of the Agreement, provided however, this MoU shall
cease to be operative in the following circumstances:
i)
The MoU is substituted by a detailed Agreement between the Parties on
award of the Consultancy in favour of the Parties hereto.
47
ii)
The Consultancy is not awarded to the Parties herein.
8.
Miscellaneous
8.1
This MoU shall be governed by laws of India.
8.2
The Parties acknowledge and accept that this MoU shall not be amended by the
Parties without the prior written consent of the Authority.
IN WITNESS WHEREOF THE PARTIES ABOVE NAMED HAVE EXECUTED AND
DELIVERED THIS MEMORANDUM OF UNDERSTANDING AS OF THE DATE FIRST
ABOVE WRITTEN.
SIGNED, SEALED AND DELIVERED SIGNED, SEALED AND DELIVERED
For and on behalf of FIRST PART by: For and on behalf of SECOND PART by:
(Signature)
(Signature)
(Name)
(Name)
(Designation)
(Designation)
(Address)
(Address)
In the presence of:
1.
2.
Notes:
1
The mode of the execution of the MoU should be in accordance with the procedure, if
any, laid down by the Applicable Law and the charter documents of the executant(s) and
when it is so required, the same should be under common seal affixed in accordance with the
required procedure.
48
2
Each MoU should attach a copy of the extract of the charter documents and
documents such as resolution / power of attorney in favour of the person executing this MoU
for the delegation of power and authority to execute this MoU on behalf of the members of
the Joint Venture.
3
For a MoU executed and issued overseas, the document shall be legalised by the
Indian Embassy and notarized in the jurisdiction where the Power of Attorney has been
executed.
49
Schedule 2
Form 3
Power of Attorney for Sole Firm
Know all men by these presents, We, __________________ (insert name of applicant and
address of the registered office of the applicant) do hereby constitute, nominate, appoint and
authorise
Mr./
Ms.........................................
[son/daughter/wife]
of
____________________and presently residing at ........................................, who is presently
employed with us and holding the position of .................... as our true and lawful attorney
(hereinafter referred to as the “Authorised Representative”) to do in our name and on our
behalf, all such acts, deeds and things as are necessary or required in connection with or
incidental to submission of our Proposal for selection as the Consultant for preparation of
detailed feasibility report, structuring of the Project on public private partnership mode,
preparation of Concession Agreement and assistance in selection of the Concessionaire for
construction and development of the Project at the Project Site, including but not limited to,
signing and submission of all applications, proposals and other documents and writings,
participating in pre-bid and other conferences and providing information/ responses to the
Authority, representing us in all matters before the Authority, signing and execution of all
contracts and undertakings consequent to acceptance of our proposal and generally dealing
with the Authority in all matters in connection with or relating to or arising out of our
Proposal for the said Project and/or upon award thereof to us till the entering into of the
Agreement with the Authority.
AND we do hereby agree to ratify and confirm all acts, deeds and things lawfully done or
caused to be done by our said Authorised Representative pursuant to and in exercise of the
powers conferred by this power of attorney and that all acts, deeds and things done by our
said Authorised Representative in exercise of the powers hereby conferred shall and shall
always be deemed to have been done by us.
Capitalised terms used herein shall have the meaning assigned to them in the RFP dated
____________.
IN WITNESS WHEREOF WE, .................... THE ABOVE NAMED PRINCIPAL HAVE
EXECUTED THIS POWER OF ATTORNEY ON THIS .................... DAY OF
...................., 20**
For .......................................
(Signature, name, designation and address)
Witnesses:
1.
2.
Notarised
50
Accepted
........................................
(Signature, name, designation and address of the Attorney)
Notes:
The mode of execution of the Power of Attorney should be in accordance with the procedure,
if any, laid down under law and the charter documents of the executants(s) and when it is so
required the same should be under common seal affixed in accordance with the required
procedure.
Wherever applicable, the applicant should submit for verification the extract of the charter
documents and other documents such as a resolution authorizing the issuance of this power
of attorney and power of attorney in favour of the person executing this power of attorney
for the delegation of power hereunder on behalf of the applicant.
For a power of attorney executed and issued overseas, the document will also have to be
legalised by the Indian embassy and notarised in the jurisdiction where the power of
attorney is being issued.
51
Schedule 2
Form 3A
Power of Attorney for Lead Member of Joint Venture
Whereas West Bengal Highway Development Corporation Limited (the “Authority”) has
invited proposals (“Proposals”) by its Request for Proposal No. ____dated ________, 2013
(“RFP”) for consultancy services in relation to construction and development of a
commercial complex cum computerized multiple layer car parking in the vacant land at K.S.
Roy Road, B.B.D Bag (Kolkata) including preparation of techno feasibility reports, bid
process management, development of the project in conformity with the terms of reference
specified in Schedule-I of the RFP, preparation of concession agreement and supervision of
the project till the achievement of the financial closure (the “Consultancy”).
Whereas, ……….. and………………… being interested in bidding for the Consultancy in
accordance with the terms and conditions of the RFP document and other connected
documents in respect of the Consultancy, have formed a consortium/joint venture (the “Joint
Venture”).”and
Whereas, it is necessary for the members of the Joint Venture to designate one of them as the
lead member with all necessary power and authority to do for and on behalf of the Joint
Venture, all acts, deeds and things as may be necessary in connection with the Joint
Venture’s bid for the Consultancy and its execution.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS
We,
………………
having
our
registered
office
at
…………………,
M/s.
……………………, having our registered office at …………………, and M/s.
…………………, having our registered office at ………………, (hereinafter collectively
referred to as the “Principals”) do hereby irrevocably designate, nominate, constitute,
appoint
and
authorise
M/s
…………………,
having
its
registered
office
at
………………………, being one of the members of Joint Venture, as the lead member and
true and lawful attorney of the Joint Venture (hereinafter referred to as the “Attorney”) and
hereby irrevocably authorize the Attorney (with power to sub-delegate) to conduct all
52
business for and on behalf of the Joint Venture and any one of us during the bidding process,
and in this regard, to do on our behalf and on behalf of the Joint Venture, all or any of such
acts, deeds, or things as are necessary or required or incidental to the submission of its bid
for the Consultancy, including but not limited to signing and submission of all applications,
bids and other documents and writings, accept the letter of award, participate in bidders’ and
other conferences, respond to queries, submit information/ documents, sign and execute
contracts and undertakings consequent to acceptance of the bid of the Joint Venture and
generally to represent the Joint Venture and/or each of the member of the Joint Venture, in
all its/their dealings with the Authority, and/ or any other government agency or any person,
in all matters in connection with or relating to or arising out of the Joint Venture’s bid for the
Consultancy and/ or upon award thereof till the agreement is entered into with the Authority.
AND hereby agree to ratify and confirm and do hereby ratify and confirm all acts, deeds and
things done or caused to be done by our said Attorney pursuant to and in exercise of the
powers conferred by this Power of Attorney and that all acts, deeds and things done by our
said Attorney in exercise of the powers hereby conferred shall and shall always be deemed to
have been done by us/ Joint Venture.
IN WITNESS WHEREOF WE THE PRINCIPALS ABOVE NAMED HAVE EXECUTED
THIS POWER OF ATTORNEY ON THIS ……………… DAY OF ………….., 20.…
For ……………………...
(Signature, Name & Title)
For
…………...................
(Signature, Name & Title)
For ………………………
(Signature, Name & Title)
(Executants)
(To be executed by both the members of the Joint
Venture)
Witnesses:
1
2
53
Notes:
�
The mode of execution of the Power of Attorney should be in accordance with
the procedure, if any, laid down by the applicable law and the charter documents of the
executant(s) and when it is so required, the same should be under common seal affixed in
accordance with the required procedure.
�
Wherever required, the applicant(s) should submit for verification the extract
of the charter documents and documents such as a board or shareholders resolution/ power
of attorney in favour of the person executing this Power of Attorney for the delegation of
power hereunder on behalf of the applicant(s).
�
For a Power of Attorney executed and issued overseas, the document will also
have to be legalised by the Indian Embassy and notarised in the jurisdiction where the
Power of Attorney is being issued. However, the Power of Attorney provided by applicant(s)
from countries that have signed the Hague Legislation Convention, 1961 are not required to
be legalised by the Indian Embassy if it carries a conforming Apostle certificate.
� The Representative of Lead Member of Joint Venture who is submitting the Bid on
behalf of JV shall also be duly authorized by lead Member and necessary authorization
Document in this regard ( Board Resolution / POA) shall also be submitted along with the
Bid Proposal.
54
Schedule 2
Form 4
Financial Capacity of the Applicant
[In case of Joint Venture, for each member of the Joint Venture for this assignment]
S. No.
Financial Year
1.
2012-2013
2.
2011-2012
3.
2010-2011
Annual Revenue
(Rs./US $ in million)
Note: The audited balance sheets of the abovementioned financial years are required to be
attached
55
Schedule 2
Form 5
Abstract of Eligible Assignments of the Applicant
[In case of Joint Venture, for each member of the
Joint Venture for this assignment]
(Refer clause 4.1.3)
Sl. no
1
Name of the
Project
Name of the
Client
2
3
Estimated
Capital cost of
Project (Rs. in
Lakhs)
4
Payment
of
profession
fee
received
by
the
Applicant
(Rs. in Lakhs)
5
Note:
a.
b.
c.
The applicant should provide details of only those projects that have been undertaken
by it under its own name or any name previous to the existing name. The work must
be undertaken by the entity who have materially and substantially related to the
working of the entity in its present name, i.e., by way of amalgamation, takeover,
merger, acquisition etc.”
Exchange rate should be taken at Rs. 50/- per USD for conversion to INR.
The applicant may attach separate sheets to provide brief particulars of other
relevant experience of the applicant.
56
Schedule 2
Form 6
FIRM’S REFERENCES
[In case of Joint Venture, for each member of the Joint Venture for this assignment]
Relevant Services carried out in the Last Seven Years Which Best Illustrate
Qualifications
The following information should be provided in the format below for each
reference assignment for which the applicant, either as the Sole Firm or as t h e
Le a d M e m b e r o f a consortium, was legally contracted by the client stated
below:
Assignment Name:
Country:
Location within Country:
Name of Client:
Professional Staff
Provided by the
applicant:
No. of Staff:
Address:
No. of Staff Months:
Start
Date Completion
(Month
/ (Month / Year)
Year)
Date Approx. Value of
Services : (in current USD) :
Name of Association Firm(s) if any:
No. of Months of Professional
Staff provided by Associated Firm(s):
Name of Senior Staff (Project Director / Coordinator, Team Leader)
involved and functions performed:
Narrative Description of Project:
Description of Actual Services Provided by your Staff:
Signature of Authorised Representative
57
(Certificate from Employer regarding experience should be furnished)
Schedule 2
Form-7
Proposed Methodology and Work Plan
The proposed methodology and work plan shall be described as follows:
1.
Understanding of TOR
Applicants shall clearly state their understanding of the TOR and also highlight its
important aspects. Applicants may supplement various requirements of the TOR and
also make precise suggestions if they consider this would bring more clarity and
assist in achieving the objectives laid down in the TOR.
2.
Methodology and Work Plan
Applicants will submit their methodology for carrying out the Consultancy,
outlining their approach toward achieving the objectives laid down in the TOR.
Each applicant will submit a brief write up on its proposed team and organisation of
personnel explaining how different areas of expertise needed for providing the
Consultancy have been fully covered by its Proposal. In case an applicant is a
Joint Venture, it should specify how the expertise of each member of such Joint
Venture, is proposed to be utilized for the Consultancy Applicants should specify
the sequence and locations of important activities, and provide a quality assurance
plan for carrying out the Consultancy.
58
Schedule 2
Form 8
Particulars of Key Personnel
Sl.
No.
Key
Name
Education
Qualification
Personal
1
Project
Team
Leader
2
Architect
3
Structural
Engineer
Mechanical
Engineer
4
5
6
7
Length
of
Experience
Present
employment
No. of
Eligible
assignments
handled.
Traffic
Expert
Finance
Specialist
Legal
Expert
59
Schedule 2
Form-9
Curriculum Vitae (CV) of Key
Personnel
1. Proposed Position:
2. Name of Personnel:
3. Date of Birth:
4. Nationality:
5. Educational Qualifications:
6. Employment Record:
(Starting with present position, list in reverse order every employment held.)
7.
8.
List of projects on which the Personnel has worked
S.no
Name of the Project
Description of responsibilities
Details of the current assignment and the time duration for which services are
required for the current assignment.
Certification:
1.
I am willing to work on the Project and I will be available for the entire duration of
the Project as required.
2.
I, the undersigned, certify that to the best of my knowledge and belief, this CV
correctly describes myself, my qualifications and my experience.
Place.............................. (Signature and name of the Key Personnel)
(Signature and name of the authorised representative of the
applicant)
Notes:
Use separate form of each Key Personnel.
60
Schedule 2
Form 10
Eligible Assignment of Key
Personnel
(Refer Clause 4.1.3)
Name of Key Personnel
Designation of Key Personnel
Name of the project
Name of Consulting Firm where employed
Description of service performed by the
Key Personnel (including designation)
Name of Client and Address, Ph. No:
(Indicate whether public or private)
Estimate Capital Cost of the project
(in Rs. crore or US$ million)
Start date and finish date of the services
(month/year)
Description of the project
It is certified that the aforesaid information is true and correct to the best of my knowledge and
belief.
(Signature and name of Key Personnel)
Note:
1.
2.
Use separate sheet for each Eligible Assignment.
The applicant may attach separate sheets to provide brief particulars of other
relevant experience of the Key Personnel.
61
Schedule 2
Form 11
Deployment of personnel for deliverables of Stage I and Stage II
Sl.
No.
1
2
3
4
5
6
Designation Name
Weeks
1 2 3 4 5 6 7 8 9 10 11 12 13 14
Deployment of Personnel for deliverables Stage III
S.no Designation Name
1
2
3
4
5
6
Weeks
15 16 17 18 19 20 21 22 23 24
(Seal, signature and name of the authorized representative of the applicant)
62
Schedule 2
Form 12
Assessment and declaration regarding potential Conflict of Interest as transaction
advisor of the Project.
(Seal, signature and name of authorized
representative of the Applicant)
63
Schedule 2
Form - 13
Proposal for Sub-Consultant
1. Details of the Firm
Firm’s Name, Address and
Telephone
Name and Telephone No. of the
Contact Person
Fields of Expertise
No. of Years in business in the
above Fields
2. Services that are proposed to be sub contracted:
3. Person who will lead the Sub- Consultant
Name:
Designation:
Telephone No:
Email:
4. Details of Firm’s previous experience
Name of Work
Name, address
and telephone
no. of Client
Total
Value of
Services
Performed
Duration
of
Services
Date of
Completion
of
Services
1.
2.
3.
(Signature and name of the authorised representative)
Note:
The Proposal for Sub-Consultant shall be accompanied by the details specified in Forms 10
and 11 of Schedule 1.
Use separate form for each Sub-Consultant
64
SCHEDULE - 3
FINANCIAL PROPOSAL (Financial Bid)
65
Schedule 3
Form-1
Covering Letter
(On Applicant’s letter head)
(Date and Reference)
To,
The Managing Director
West Bengal Highway Development Corporation Limited
Sub: Appointment of Consultant for providing consultancy services in relation to the
Project including preparation of detailed feasibility report, structuring of the Project on
public private partnership mode, preparation of Concession Agreement and assistance in
selection of the Concessionaire for construction and development of the Project at the
Project Site
We,
(applicant’s name) herewith enclose the Financial Proposal for
selection of our firm as Consultant for the Project.
If the applicant is a Joint Venture, insert the following: We are submitting our Proposal as a
Joint Venture with: [Insert a list with full name and the legal address of each member, and
indicate the Lead Member
We agree that this offer shall remain valid for a period of 90 (ninety) days from the
Proposal Due Date or such further period as may be mutually agreed upon.
Capitalised terms used herein shall have the meaning assigned to them in the RFP dated [▪].
Yours faithfully,
(Signature, name and designation of the authorised signatory)
66
Schedule 3
Form 2(A)
Financial Proposal for providing consultancy services in relation to the Project
including preparation of detailed feasibility report, structuring of the Project
on public private partnership mode, preparation of Concession Agreement
and assistance in selection of the Concessionaire for construction and
development of the Project at the Project Site
Sl .No.
Amount
(*INR in Figure and
Words)
Item
A
Remuneration including per diem
allowance
B
Reimbursable expenditures
Total for A+B (net of service tax)
(* figures to be shown in numerals)
(Signature, name and designation of the authorised representative)
67
Schedule 3
Form 2(B)
The following is the estimated budgetary support required for providing
the Consultancy services in relation to the Project including preparation of
detailed feasibility report, structuring of the Project on public private
partnership mode, preparation of Concession Agreement and assistance in
selection of the Concessionaire for construction and development of the
Project at the Project Site
Sl.
No.
A
Sl.
No.
I
Description
Unit Rate
Quant Amount
(Rs/unit) ity
(Rs)
Remuneration (including per diem allowances)
Position
Name
Rate
personAmount
(Rs/unit) month
(Rs)
Key Personnel:
1 Project Team Leader
10.75
2
3
4
5
Structural Engineer
Mechanical Engineer
Architect
Traffic Expert
3
3
3
1.75
6 Finance Specialist
7 Legal Expert
Sub-total=
II Sub-ProfessionalStaff
5.5
2
29
1 CAD Draftsman (1 no.)
2 Surveyor (2 nos.)
Sub-total=
Total=
III Support staff
1 Office Manager (2nos) [1
no.x46 weeks + 1 no. x24
weeks]
Total=
3
2
17.5
17.5
Total for A =
B
Reimbursable
Expenditures
IV
Transportation (fixed
costs)
The vehicles provided for Vehthe use of Consultants shall month
include the cost for rental, s
drivers,
operation,
maintenance,
repairs,
insurance, etc.
1
68
3
Sl.
No.
V
Description
Unit Rate
Quant Amount
(Rs/unit) ity
(Rs)
Office supplies, utilities and communication (fixed costs):
1
Office supplies
month
9
2
Drafting supplies
month
9
Total =
VI
Reports and documents printing
1
Inception Report
No.
4
2
Draft Detailed Feasibility No.
Report in hard and soft
copy
Final Detailed Feasibility No.
Report in hard and soft
copy
Draft
PPP
Structuring No.
Report
and
Draft
Concession Agreement in
hard and soft copy
6
Final
PPP
Structuring No.
Report and Concession
Agreement in hard and soft
copy
Draft Request For Proposal No.
for
selection
of
Concessionaire in hard and
soft copy
Final Request For Proposal No.
for
selection
of
Concessionaire in hard and
soft copy
6
3
4
5
6
7
6
6
6
6
Total =
VII
Survey and investigations
1
Car parking survey – 7 days
2
Topographic survey of area Sq.m.
1877
3
Geotechnical investigation metre
for bore holes not less than
30m depth in soil including
all laboratory testing and
submission of reports
120
LS
Total =
VIII
3-D
modeling
structure
of
the LS
69
Sl.
No.
IX
Description
Unit Rate
(Rs/unit)
for LS
Quant Amount
ity
(Rs)
Arrangement
Stakeholders’ meeting
Total for B =
GRAND TOTAL FOR A+B
(Signature, name and designation of the authorised representative)
70
SCHEDULE – 4
FORM OF AGREEMENT
(i.e. agreement to be executed between the Authority and the members of the Joint Venture)
is to be replaced by the draft of the agreement attached herewith.
CONTENTS
2.
Page no.
1.
General
1.1
Definitions and Interpretation
74
1.2
Relation between the Parties
76
1.3
Rights and Obligations
76
1.4
Governing law and jurisdiction
76
1.5
Language
76
1.6
Table of contents and headings
77
1.7
Notices
77
1.8
Location
77
1.9
Authorised representatives
77
1.10
Taxes and duties
78
Commencement, Completion and Termination
of Agreement
2.1
Effectiveness of Agreement
78
2.2
Commencement of Services
78
2.3
Termination of Agreement for failure to commence Services
78
2.4
Expiration of Agreement
79
2.5
Entire Agreement
79
2.6
Modification of Agreement
79
2.7
Force Majeure
79
2.8
Suspension of Agreement
81
2.9
Termination of Agreement
81
71
3.
Obligations of the Consultant
3.1
General
83
3.2
Conflict of Interest
83
3.3
Confidentiality
86
3.4
Liability of the Consultant
86
3.5
Insurance to be taken out by the Consultant
87
3.6
Accounting, inspection and auditing
88
3.7
Consultant’s actions requiring the Authority’s prior approval
88
3.8
Reporting obligations
89
3.9
Documents prepared by the Consultant to be the property
89
of the Authority
4.
5.
3.10
Equipment and materials furnished by the Authority
89
3.11
Providing access to the Project Office and Personnel
90
3.12
Accuracy of Documents
90
Consultant’s Personnel
4.1
General
90
4.2
Deployment of Personnel
90
4.3
Approval of Personnel
91
4.4
Substitution of Key Personnel
91
4.5
Working hours, overtime, leave etc.
91
4.6
Team Leader
91
4.7
Sub-Consultants
91
Obligations of the Authority
5.1
Assistance in clearances etc.
91
5.2
Access to land and property
92
5.3
Changes in Applicable Law
92
5.4
Payment
92
72
6.
7.
Payment to the Consultant
6.1
Cost estimates and Agreement Value
92
6.2
Currency of payment
92
6.3
Mode of billing and payment
93
Performance Security and penalty
7.1
Performance Security
93
7.2
Encashment and appropriation of Performance Security
93
7.3
Penalty for deficiency in services
94
8.
Fairness and Good Faith
9.
Settlement of Disputes
94
9.1
Amicable settlement
95
9.2
Dispute resolution
95
9.3
Conciliation
95
9.4
Arbitration
95
ANNEXURES
Annexure 1:
Terms of Reference
97
Annexure 2:
Deployment of Personnel
98
Annexure 3:
Cost of Services
99
Annexure 4:
Approved Sub-Consultant(s)
100
Annexure 5:
Payment Schedule
101
Annexure 6:
Bank Guarantee for Performance Security
102
73
AGREEMENT No._________
This AGREEMENT (hereinafter called the “Agreement”) is made on the _________ day
of the month of ________ 2***, between, on the one hand, the West Bengal Highway
Development Corporation Limited (hereinafter called the “Authority” which expression
shall include its successors and assigns, unless the context otherwise requires) and, on the
other hand, ________________________ (hereinafter called the “Consultant” which
expression shall include its successors and permitted assigns).
WHEREAS
(A)
The Authority intends take up construction and development of commercial
complex cum computerized multiple layer car parking (“MLCP”) (hereinafter
called the “Project”) in the vacant land at K.S. Roy Road, B.B.D. Bag (Kolkata)
having an area of 1877 (one thousand eight hundred seventy seven) square meters
and delineated on the map attached as Appendix I to the RFP (the “Project Site”).
(B)
The Authority vide its request for proposal dated _____________ (the “RFP”) for
consultancy services in relation to the construction and development of the Project
at the Project Site including preparation of detailed feasibility report, structuring of
the project on public private partnership mode, preparation of Concession
Agreement and assistance in selection of the Concessionaire” (hereinafter called the
“Consultancy”), invited sealed tenders from reputed consultancy engineering firms.
The Consultant submitted its Proposal for the Consultancy, whereby the Consultant
represented to the Authority that it had the required professional skills, and the
Consultant also agreed to provide the Services (as defined hereinafter) to the
Authority on the terms and conditions as set forth in the RFP and this Agreement.
(C)
The Authority, on acceptance of the aforesaid Proposal of the Consultant, awarded
the Consultancy to the Consultant vide its letter of award dated _____________ (the
“LOA”); and
(D)
In pursuance of the LOA, the Parties have agreed to enter into this Agreement.
NOW, THEREFORE, the Parties hereto hereby agree as follows:
1.
GENERAL
1.1
Definitions and Interpretation
1.1.1
The words and expressions defined in this Agreement shall, unless the context
otherwise requires, have the meaning hereinafter respectively assigned to them:
(a)
“Applicable Laws” means the laws, by-laws, rules or regulations prevailing
in India from time to time and any other instruments having the force of law,
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by-law, rule or regulation in India as they may be issued and in force from
time to time;
(b)
“Agreement” means this Agreement, together with all the annexures;
(c)
“Agreement Value” shall have the meaning set forth in Clause 6.1.2;
(d)
“Confidential Information” shall have the meaning set forth in Clause 3.3;
(e)
“Dispute” shall have the meaning set forth in Clause 9.2.1;
(f)
“Effective Date” means the date on which this Agreement comes into force
and effect pursuant to Clause 2.1;
(g)
“Government” means the Government of West Bengal and/or the
Government of India, as the case may be;
(h)
“INR, Re. or Rs.” means Indian Rupees;
(i)
“Personnel” means persons hired by the Consultant or by any SubConsultant or by members of the Joint Venture as employees and assigned to
the performance of the Services or any part thereof”
(j)
“Party” means the Authority or the Consultant, as the case may be, and
Parties means both of them;
(k)
“Project” shall have the meaning assigned to it in Recital A of this
Agreement;
(l)
“Project Site” shall have the meaning assigned to it in Recital A of this
Agreement;
(m)
“Services” means the work to be performed by the Consultant or any SubConsultant pursuant to this Agreement, as described in the Terms of
Reference hereto;
(n)
“RFP” shall have the meaning assigned to it in Recital B;
(o)
“Sub-Consultant” means any entity to which the Consultant subcontracts any
part of the Services in accordance with the provisions of Clause 4.7 of this
Agreement;
(p)
“Terms of Reference” shall mean the terms of reference annexed as
Annexure I to this Agreement, and
(q)
“Third Party” means any person or entity other than the Government, the
Authority, the Consultant or a Sub-Consultant.
All terms and words not defined herein shall, unless the context otherwise requires,
have the meaning assigned to them in the RFP.
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1.1.2
1.2
The following documents along with all addenda issued thereto shall be deemed to
form and be read and construed as an integral part of this Agreement and in case of
any contradiction between or among them, the priority in which a document would
prevail over others would be as laid down below beginning from the highest priority
to the lowest priority:
(a)
Agreement;
(b)
Annexures to this Agreement;
(c)
RFP together with all the schedules and annexures thereto including any
addenda, corrigenda and/ or clarification issued by the Authority;
(d)
LOA; and
(e)
Minutes of meeting of negotiation with Selected Applicant in terms of the
RFP and issued by the Authority prior to issuance of LOA.
Relation between the Parties
Nothing contained herein shall be construed as establishing a relationship of master
and servant or of agent and principal as between the Authority and the Consultant.
The Consultant shall, subject to this Agreement, have complete charge of Personnel
performing the Services and shall be fully responsible for the Services performed by
them or on their behalf hereunder.
1.3
Rights and obligations
The mutual rights and obligations of the Authority and the Consultant shall be as set
forth in this Agreement; in particular:
1.4
(a)
the Consultant shall carry out the Services in accordance with the provisions
of this Agreement; and
(b)
the Authority shall make payments to the Consultant in accordance with the
provisions of this Agreement.
Governing law and jurisdiction
This Agreement shall be construed and interpreted in accordance with and be
governed by the laws of India, and the courts at Kolkata shall have exclusive
jurisdiction over all matters arising out of or relating to this Agreement.
1.5
Language
All notices required to be given by one Party to the other Party and all other
communications, documentation and proceedings which are in any way relevant to
this Agreement shall be in English language.
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1.6
Table of contents and headings
The table of contents, headings or sub-headings in this Agreement are for
convenience of reference only and shall not be used in, and shall not affect, the
construction or interpretation of this Agreement.
1.7
Notices
Any notice or other communication to be given by any Party to the other Party
under or in connection with the matters contemplated by this Agreement shall be in
writing and shall:
1.8
(a)
in the case of the Consultant, be given by facsimile and by letter delivered by
hand to the address given and marked for attention of the Consultant’s
authorised representative set out below in Clause 1.9.3 or to such other
person as the Consultant may from time to time designate by notice to the
Authority; provided that notices or other communications to be given to an
address outside Kolkata may, if they are subsequently confirmed by sending
a copy thereof by registered acknowledgement due, air mail or by courier, be
sent by facsimile to the number as the Consultant may from time to time
designate by notice to the Authority;
(b)
in the case of the Authority, be given by letter delivered by hand and be
addressed to the Authority with a copy delivered to the Authority’s
representative set out below in Clause 1.9.2 or to such other person as the
Authority may from time to time designate by notice to the Consultant;
provided that if the Consultant does not have an office in Kolkata it may
send such notice by facsimile and by registered acknowledgement due, air
mail or by courier; and
(c)
any notice or communication by a Party to the other Party, given in
accordance herewith, shall be deemed to have been delivered when in the
normal course of post it ought to have been delivered and in all other cases,
it shall be deemed to have been delivered on the actual date and time of
delivery; provided that in the case of facsimile or e-mail, it shall be deemed
to have been delivered on the working day following the date of its delivery.
Location
The Services shall be performed at the Project Site in accordance with the
provisions of the RFP and at such locations as are incidental thereto and/or are
specified by the Authority, including the offices of the Consultant.
1.9
Authorised representatives
1.9.1
Any action required or permitted to be taken, and any document required or
permitted to be executed, under this Agreement by the Authority or the Consultant,
as the case may be, may be taken or executed by the officials/authorised
representatives specified in this Clause 1.9.
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1.9.2
The Authority may, from time to time, designate one of its officials as the
Authority’s representative. Unless otherwise notified, the Authority’s representative
shall be:
Managing Director
West Bengal Highway Development Corporation Limited
4th & 5th Floor, HRBC Bhawan
Munshi Premchand Sarani
Kolkata – 700021
1.9.3
The Consultant may designate one of its employees as Consultant’s authorised
representative. Unless otherwise notified, the Consultant’s authorised representative
shall be:
--------------------------Tel: ------------------Fax: -------------------
1.10
Taxes and duties
Unless otherwise specified in this Agreement, the Consultant shall pay all such
taxes, duties, fees and other impositions, as may be levied under Applicable Laws
and the Authority shall perform such duties in regard to the deduction of such taxes
as may be required under the Applicable Laws. However, the Consultant shall pay
service tax at applicable rates as per Applicable Laws and the same shall be
reimbursed by the Authority on submission of documentary evidence of such
deposit of service tax by the Consultant.
2.
COMMENCEMENT,
AGREEMENT
COMPLETION
2.1
Effectiveness of Agreement
AND
TERMINATION
OF
This Agreement shall come into force and effect on the date of this Agreement (the
“Effective Date”).
2.2
Commencement of Services
The Consultant shall commence the Services within a period of 7 (seven) days from
the Effective Date, unless otherwise agreed in writing by the Parties.
2.3
Termination of Agreement for failure to commence Services
If the Consultant does not commence the Services within the period specified in
Clause 2.2 above, the Authority may, by not less than 2 (two) weeks’ notice to the
Consultant, terminate this Agreement, and in the event of such termination, the Bid
Security of the Consultant shall stand forfeited and the Consultant shall not be
entitled to receive any termination payment as specified in Clause 2.9.5 hereunder.
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2.4
Expiration of Agreement
Unless terminated earlier pursuant to Clause 2.3 and/or Clause 2.9 hereof, this
Agreement shall expire when the Services have been completed as per the terms of
this Agreement and a period of 90 (ninety) days has elapsed after all payments due
under this Agreement, have been made.
2.5
Entire Agreement
2.5.1
This Agreement and the annexures together constitute a complete and exclusive
statement of the terms of the agreement between the Parties on the subject hereof,
and no amendment or modification hereto shall be valid and effective unless such
modification or amendment is agreed to in writing by the Parties and duly executed
by persons especially empowered in this regard by the respective Parties. All prior
written or oral understandings, offers or other communications of every kind
pertaining to this Agreement are abrogated and withdrawn; provided, however, that
the obligations of the Consultant arising out of the provisions of the RFP shall
continue to subsist and shall be deemed as part of this Agreement.
2.5.2
Without prejudice to the generality of the provisions of Clause 2.5.1, on matters not
covered by this Agreement, the provisions of the RFP shall apply.
2.6
Modification of Agreement
Modification of the terms and conditions of this Agreement, including any
modification of the scope of the Services, shall only be made by written agreement
between the Parties. Pursuant to Clause 4.2.3 and 6.1.3 hereof, however, each Party
shall give due consideration to any proposals for modification made by the other
Party.
2.7
Force Majeure
2.7.1
Definition
(a)
For the purposes of this Agreement, “Force Majeure” means an event which
is beyond the reasonable control of a Party, and which makes a Party’s
performance of its obligations hereunder impossible or so impractical as
reasonably to be considered impossible in the circumstances, and includes,
but is not limited to, war, riots, civil disorder, earthquake, fire, explosion,
storm, flood or other adverse weather conditions, strikes, lockouts or other
industrial action, confiscation or any other action by government agencies.
(b)
Force Majeure shall not include (i) any event which is caused by the wilful
misconduct or negligence or intentional action of the Consultant, any SubConsultant or agents or employees, (ii) any event which the Consultant could
reasonably have expected to (A) take into account at the time of the
conclusion of this Agreement; or (B) avoid or overcome in the carrying out
of its obligations hereunder.
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2.7.2
(c)
Force Majeure shall not include insufficiency of funds or failure to make any
payment required hereunder.
(d)
Force Majeure shall not include strikes, lockouts or other industrial action
which are within the power of the Party invoking Force Majeure to prevent.
No breach of Agreement
The failure of a Party to fulfil any of its obligations hereunder shall not be
considered to be a breach of, or default under, this Agreement insofar as such
inability arises from an event of Force Majeure, provided that the Party affected by
such an event has taken all reasonable precautions, due care and reasonable
alternative measures, all with the objective of carrying out the terms and conditions
of this Agreement.
2.7.3
2.7.4
Measures to be taken
(a)
A Party affected by an event of Force Majeure shall take all reasonable
measures to remove such Party’s inability to fulfil its obligations hereunder
with a minimum of delay.
(b)
A Party affected by an event of Force Majeure shall notify the other Party of
such event as soon as possible, and in any event not later than 14 (fourteen)
days following the occurrence of such event, providing evidence of the
nature and cause of such event, and shall similarly give notice of the
restoration of normal conditions as soon as possible.
(c)
The Parties shall take all reasonable measures to minimise the consequences
of any event of Force Majeure.
Extension of time
Any period within which a Party shall, pursuant to this Agreement, have to complete
any action or task, shall be extended for a period equal to the time during which
such Party was unable to perform such action as a result of an event of Force
Majeure event as mutually agreed in writing by both the Parties as unavoidable
circumstances. Provided that, in case the Parties fail to mutually agree in writing on
an event being an unavoidable circumstance, no extension of time shall be claimed
by either Party.
2.7.5
Payments
During the period of the Consultant’s inability to perform the Services as a result of
an event of Force Majeure, the Authority may, upon the Consultant’s request, at its
sole discretion reimburse the Consultant for additional costs reasonably and
necessarily incurred by it during such period for the purposes of the Services and in
reactivating the Services after the end of such period.
2.7.6
Consultation
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Not later than 30 (thirty) days after the Consultant has, as the result of an event of
Force Majeure, notified to the Authority that it is unable to perform a material
portion of the Services, the Parties shall consult with each other with a view to
agreeing on appropriate measures to be taken in the circumstances.
2.8
Suspension of Agreement
The Authority may, by written notice of suspension to the Consultant, suspend all
payments to the Consultant hereunder if the Consultant is in breach of this
Agreement or has failed to perform any of its obligations under this Agreement,
including the carrying out of the Services; provided that such notice of suspension
(i) shall specify the nature of the breach or failure, and (ii) shall provide an
opportunity to the Consultant to remedy such breach or failure within a period not
exceeding 30 (thirty) days after receipt of such notice of suspension by the
Consultant.
2.9
Termination of Agreement
2.9.1
By the Authority
The Authority may, by not less than 30 (thirty) days’ written notice of termination to
the Consultant, terminate this Agreement if:
(a)
the Consultant fails to remedy any breach hereof or any failure in the
performance of its obligations hereunder, as specified in a notice of
suspension pursuant to Clause 2.8 hereinabove, within 30 (thirty) days of
receipt of such notice of suspension or within such further period as the
Authority may have subsequently granted in writing;
(b)
the Consultant becomes insolvent or bankrupt or enters into any agreement
with its creditors for relief of debt or takes advantage of any law for the
benefit of debtors or goes into liquidation or winding-up, whether
compulsory or voluntary, or a receiver is appointed;
(c)
the Consultant fails to comply with any final decision reached as a result of
arbitration proceedings pursuant to Clause 9 hereof;
(d)
any document, information, data, representation or statement submitted by
the Consultant, based upon which the Consultant was considered eligible or
successful, is found to be false, incorrect or misleading;
(e)
as the result of an event of Force Majeure, the Consultant is unable to
perform a material portion of the Services for a period of not less than 60
(sixty) days; or
(f)
If there is any change in the constituents of the Consultant (including any
change in shareholding, members or partners of the Consultant, as the case
may be), except with the prior written approval of the Authority.
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(g)
2.9.2
the Authority, in its sole discretion and for any reason whatsoever, decides to
terminate this Agreement.
By the Consultant
The Consultant may, by not less than 30 (thirty) written notice to the Authority,
terminate this Agreement if:
2.9.3
(a)
the Authority fails to make payment of any amount due to the Consultant
pursuant to this Agreement within 60 (sixty) days after receiving written
notice from the Consultant that such payment is overdue, provided that, such
payment is not a subject matter of a dispute between the Parties pursuant to
Clause 9 hereof; or
(b)
as the result of an event of Force Majeure, the Consultant is unable to
perform a material portion of the Services for a period of not less than ninety
(90) days; or
Cessation of rights and obligations
Upon termination of this Agreement pursuant to Clauses 2.3 or 2.9 hereof, or upon
expiration of this Agreement pursuant to Clause 2.4 hereof, all rights and obligations
of the Parties hereunder shall cease, except (i) such rights and obligations as may
have accrued on the date of termination or expiration, (ii) the obligation of
confidentiality set forth in Clause 3.3 hereof, (iii) the Consultant’s obligation to
permit inspection, copying and auditing of its accounts and records set forth in
Clause 3.6 which shall be limited to the Services provided by the Consultant under
this Agreement, and (iv) any right or remedy which a Party may have under this
Agreement or under Applicable Law.
2.9.4
Cessation of Services
Upon termination of this Agreement by notice of either Party to the other pursuant
to Clauses 2.9.1 or 2.9.2 hereof, the Consultant shall, immediately upon dispatch or
receipt of such notice, as the case may be, take all necessary steps to bring the
Services to a close in a prompt and orderly manner and shall make every reasonable
effort to keep expenditures for this purpose to a minimum. With respect to
documents prepared by the Consultant and equipment and materials furnished by the
Authority, the Consultant shall proceed as per the provisions of Clauses 3.9 or 3.10
hereof, as applicable.
2.9.5
Payment upon Termination
Upon termination of this Agreement pursuant to Clauses 2.9.1 or 2.9.2 hereof, the
Authority shall make the following payments to the Consultant (after setting off any
amount that may be due from the Consultant to the Authority):
(i)
remuneration pursuant to Clause 6 hereof for Services satisfactorily
performed prior to the date of termination;
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(ii)
reimbursable expenditures pursuant to Clause 6 hereof for expenditures
actually incurred prior to the date of termination; and
(iii)
except in the case of termination pursuant to sub-clauses (a) to (d) of Clause
2.9.1 hereof, reimbursement of any reasonable cost incidental to the prompt
and orderly termination of this Agreement including the cost of the return
travel of the Consultant’s personnel.
It is hereby clarified that in case of termination of this Agreement pursuant to subclauses (a) to (d) of Clause 2.9.1 hereof, the Authority, in addition to any other
rights that it may have under this Agreement or under Applicable Laws, shall be
entitled to forfeit the Bid Security and/ or Performance Security, as the case may be,
prior to making payment of the amounts specified hereinabove to the Consultant.
3.
OBLIGATIONS OF THE CONSULTANT
3.1
General
3.1.1
Standards of Performance
The Consultant shall perform the Services and carry out its obligations hereunder
with all due diligence, efficiency and economy, in accordance with the highest
standard of professional techniques and practices, and shall observe sound
management practices, and employ appropriate advanced technology and safe and
effective equipment, machinery, materials and methods. The Consultant shall
always act, in respect of any matter relating to this Agreement or to the Services, as
a faithful adviser to the Authority, and shall at all times support and safeguard the
Authority's legitimate interests in any dealings with Third Parties.
3.1.2
Terms of Reference
The scopes of Services to be performed by the Consultant are specified in the Terms
of Reference. The Consultant shall provide the deliverables specified therein strictly
in conformity with the time schedule stated therein.
3.1.3
Applicable Laws
The Consultant shall perform the Services in accordance with all Applicable Laws
and shall take all steps in a diligent manner, to ensure that the Personnel and agents
of the Consultant and the Sub-Consultant comply with all Applicable Laws.
3.2
Conflict of Interest
3.2.1
The Consultant and/or its affiliates shall not have a Conflict of Interest and any
breach with regard thereto shall constitute a breach of this Agreement.
3.2.2
Consultant and affiliates not to be otherwise interested in the Project
The Consultant agrees that, during the term of this Agreement and after its
termination, the Consultant, as well as any Sub-Consultant and any entity which is
an affiliate of the Consultant and/ or Sub-Consultant shall be disqualified from
83
providing goods, works, services, loans or equity for any project resulting from or
closely related to the Services and any breach of this obligation shall amount to a
Conflict of Interest. Provided that, the restriction herein shall not apply (i) after a
period of 5 (five) years from the date of completion of the Services; (ii) to
consulting assignments granted by banks/ lenders at anytime; (iii) to consultancy/
advisory services provided to the Authority in continuation of this Consultancy; and
(iv) to any subsequent consultancy/ advisory services provided to the Authority in
accordance with the rules of the Authority. For the avoidance of doubt, an affiliate
for the purpose of this Para 3.2 means (a) any officer, director, employee, trustee,
shareholder, member, partner of the Consultant and/ or Sub-Consultant, as the case
may be; or (b) any corporation, partnership, limited liability company, limited
liability partnership, trust or other person or entity controlling, controlled by or
under common control with the Consultant and/ or Sub-Consultant, as the case may
be (whether directly or indirectly through one or more intermediaries).
3.2.3
Prohibition of conflicting activities
Neither the Consultant nor its Personnel shall engage, either directly or indirectly, in
any of the following activities:
3.2.4
(a)
during the term of this Agreement, any business or professional activities
which would conflict with the activities assigned to them under this
Agreement;
(b)
after the termination of this Agreement, such other activities as may be
specified in this Agreement; or
(c)
at any time, such other activities as have been specified in the RFP as
Conflict of Interest.
Consultant not to benefit from commissions, discounts, etc.
The remuneration of the Consultant pursuant to Clause 6 hereof shall constitute the
Consultant’s sole remuneration in connection with this Agreement or the Services
and the Consultant shall not accept for its own benefit any trade commission,
discount or similar payment in connection with activities pursuant to this Agreement
or Services rendered by it or in the discharge of its obligations hereunder, and the
Consultant shall use its best efforts to ensure that any of its Personnel and agents
and/ or the Sub-Consultants and their Personnel and agents similarly shall not
receive any such additional remuneration.
3.2.5
The Consultant , its affiliates, its Personnel and agents shall observe the highest
standards of ethics and the Consultant shall ensure that its Personnel and agents or
any Sub-Consultant and its Personnel and agents have not engaged in and shall not
hereafter engage in any corrupt practice, fraudulent practice, coercive practice,
undesirable practice or restrictive practice (collectively the “Prohibited Practices”).
Notwithstanding anything to the contrary contained in this Agreement, the Authority
shall be entitled to terminate this Agreement forthwith by a communication in
writing to the Consultant, without being liable in any manner whatsoever to the
Consultant, if it determines that the Consultant has, directly or indirectly or through
its Personnel, any Sub-Consultant, Personnel of any Sub-Consultant or an agent,
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engaged in any Prohibited Practices during the Selection Process or before or after
entering into this Agreement. In such an event, the Authority shall forfeit and
appropriate the Performance Security, if any, as mutually agreed genuine preestimated compensation and damages payable to the Authority towards, inter alia,
time, cost and effort of the Authority, without prejudice to the Authority’s any other
rights or remedy hereunder or under Applicable Laws.
3.2.6
Without prejudice to the rights of the Authority under Clause 3.2.5 above and the
other rights and remedies which the Authority may have under this Agreement, if
the Consultant is found by the Authority in its sole discretion to have directly or
indirectly or through its affiliates, Personnel, any Sub-Consultant, Personnel of any
Sub-Consultant or an agent, engaged or indulged in any Prohibited Practices, during
the Selection Process or before or after the execution of this Agreement, the
Consultant shall not be eligible to participate in any tender or RFP issued during a
period of 2 (two) years from the date the Consultant is found by the Authority to
have so engaged or indulged in any Prohibited Practices
3.2.7
For the purposes of Clauses 3.2.5 and 3.2.6, the following terms shall have the
meaning hereinafter respectively assigned to them:
(a)
“corrupt practice” means the (i) offering, giving, receiving or soliciting,
directly or indirectly, of anything of value to influence the actions of any
person connected with the Selection Process (for removal of doubt, offering
of employment or employing or engaging in any manner whatsoever,
directly or indirectly, any official of the Authority who is or has been
associated in any manner, directly or indirectly with the Selection Process or
LOA or dealing with matters concerning this Agreement before or after the
execution thereof, at any time prior to the expiry of one year from the date
such official resigns or retires from or otherwise ceases to be in the service
of the Authority, shall be deemed to constitute influencing the actions of a
person connected with the Selection Process); or (ii) engaging in any manner
whatsoever, whether during the Selection Process or after the issue of LOA
or after the execution of this Agreement, as the case may be, any person in
respect of any matter relating to the Project or the LOA or this Agreement,
who at any time has been or is a legal, financial or technical adviser of the
Authority in relation to any matter concerning the Project;
(b)
“fraudulent practice” means a misrepresentation or omission of facts or
suppression of facts or disclosure of incomplete facts, in order to influence
the Selection Process;
(c)
“coercive practice” means impairing or harming, or threatening to impair or
harm, directly or indirectly, any person or property to influence any person’s
participation or action in the Selection Process or the exercise of its rights or
performance of its obligations by the Authority under this Agreement;
(d)
“undesirable practice” means (i) establishing contact with any person
connected with or employed or engaged by the Authority with the objective
of canvassing, lobbying or in any manner influencing or attempting to
influence the Selection Process; or (ii) having a Conflict of Interest; and
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(e)
3.3
“restrictive practice” means forming a cartel or arriving at any
understanding or arrangement among applicants with the objective of
restricting or manipulating a full and fair competition in the Selection
Process.
Confidentiality
The Consultant and its Personnel, during the term of this Agreement and within 2
(two) years after the expiration or termination of this Agreement, shall not, without
the prior written consent of the Authority, disclose any proprietary information,
including, information relating to reports, data, drawings, design, software or other
material, whether written or oral, whether in electronic or magnetic format, and the
contents thereof, and any reports, digests or summaries created or derived from any
of the foregoing that is provided by the Authority to the Consultant and its Personnel
and any information provided by or relating to the Authority, its technology,
technical processes, business affairs or finances or any information relating to the
Authority’s employees, officers or other professionals or suppliers, customers or
contractors of the Authority, and any other information which the Consultant is
under an obligation to keep confidential in relation to the Project, the Services or
this Agreement ("Confidential Information").
Notwithstanding the aforesaid, the Consultant may disclose Confidential
Information to the extent that such Confidential Information:
(i)
was in the public domain prior to its delivery to the Consultant and/ or its
Personnel or has become a part of public knowledge from a source other
than the Consultant and/ or its Personnel;
(ii)
was obtained from a Third Party with no known duty to maintain its
confidentiality;
(iii)
is required to be disclosed under any Applicable Law or pursuant to any
judicial or administrative or arbitral process or pursuant to any order or
direction of any governmental instrumentality, provided that for any such
disclosure, the Consultant shall give the Authority, prompt written notice and
use reasonable efforts to ensure that such disclosure is accorded confidential
treatment;
(iv)
is provided to the Sub-Consultant or its Personnel or to professional advisers,
agents, auditors or representatives of the Consultant, as is reasonable under
the circumstances; provided, however, that the Consultant, shall require the
Sub-Consultant or its Personnel or professional advisers, agents, auditors or
representatives of the Consultant or its Personnel to undertake in writing to
keep such Confidential Information, confidential.
3.4
Liability of the Consultant
3.4.1
The Consultant’s liability under this Agreement shall be determined by the
Applicable Laws and the provisions hereof.
3.4.2
Consultant’s indemnity to the Authority
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Without prejudice to any other right available to the Authority under Applicable
Law, the Consultant hereby agrees to indemnity, defend and hold harmless the
Authority and its directors and employees from and against any and all direct and
indirect losses, liabilities, claims, damages, proceedings, awards, decrees, orders,
judgments, costs and expenses (including reasonable attorney’s fees and expenses)
but excluding consequential damages, suffered or incurred (or likely to be suffered
or incurred) by the Authority and/ or any of its directors or employees as a result of
(i) any deficiency in the Services rendered by the Consultant, any Sub-Consultant or
their respective Personnel; (ii) any negligence or wilful misconduct on the part of
the Consultant, any Sub-Consultant or their respective Personnel; (iii) any breach or
failure by the Consultant to perform the Services or any of its obligations under this
Agreement; or (iv) any claim or threatened claim from a Third Party based upon or
arising out of or relating to the provision of the Services by the Consultant, any SubConsultant or any of their respective Personnel.
3.5
Insurance to be taken out by the Consultant
3.5.1 The Consultant shall within 7 (seven) days of signing of this Agreement, insure and
maintain and shall cause any Sub-Consultant to insure and maintain at its, or the
Sub-Consultant’s, as the case may be, own cost but on terms and conditions
approved by the Authority, insurance against the risks and for the coverages as
specified in this Agreement and in accordance with good industry practice.
3.5.2 Within 15 (fifteen) days of receiving any insurance policy certificate in respect of
insurances required to be obtained and maintained under this clause, the Consultant
shall furnish to the Authority, copies of such policy certificates, copies of the
insurance policies and evidence that the insurance premium have been paid in
respect of such insurance. No insurance required to be obtained under this
Agreement shall be cancelled, modified or allowed to expire or lapse during the term
of this Agreement.
3.5.3 If the Consultant fails to effect and keep in force the aforesaid insurances for which
it is responsible pursuant hereto, the Authority shall, apart from having other
recourse available under this Agreement, have the option to insure and to keep in
force any such insurances, and pay such premia and recover the costs thereof from
the Consultant, and the Consultant shall be liable to pay such amounts on demand by
the Authority. In the event the Consultant fails to make payment of such amounts
even after the Authority raising a demand for the same, the Authority shall be
entitled to recover such amount from the Bid Security and/ or Performance Security
or from the payments due to the Consultant under this Agreement.
3.5.4 Except in case of Third Party liabilities, the insurance policies so procured shall
mention the Authority as the beneficiary of the Consultant; provided that in the
event the Consultant has a general insurance policy that covers the risks specified in
this Agreement and the amount of insurance cover is equivalent to 3 (three) times
the cover required hereunder, such insurance policy may not mention the Authority
as the sole beneficiary of the Consultant.
3.5.5
The Parties agree that the risks and coverages shall include, but not be limited, to the
following:
87
3.6
(a)
Third Party motor vehicle liability insurance as required under Applicable
Laws including Motor Vehicles Act, 1988 in respect of motor vehicles
operated in India by the Consultant or its Personnel for the period of the
Consultancy.
(b)
Third Party liability insurance with a minimum coverage of Rs. 20,00,000/(Rupees Twenty Lakhs only) for the period of this Agreement.
(c)
Professional liability insurance including coverage for errors and omissions
caused by Consultant’s negligence in performance of its duties under this
Agreement for an amount to be determined by the Authority which shall not
under any circumstances be less than the amount of professional fees and
reimbursable expenditures made or expected to be made to the Consultant
hereunder.
(d)
The policy should be issued only from an insurance company operating in
India.
(e)
The policy must clearly indicate the indemnity limit in terms of “Any One
Accident” (AOA) and “Aggregate limit on the policy period” (AOP) and in
no case should be for an amount less than stated in Clause 6.1.2 of this
Agreement.
(f)
Employer’s liability insurance and workers’ compensation insurance in
respect of the Personnel of the Consultant and of any Sub-Consultant, in
accordance with the relevant provisions of Applicable Law, as well as, with
respect to such Personnel, any such life, health, accident, travel or other
insurance as may be appropriate.
Accounting, inspection and auditing
The Consultant shall:
3.7
(a)
keep accurate and systematic accounts and records in respect of the Services
hereunder, in accordance with internationally accepted accounting principles
and in such form and detail as will clearly identify all relevant time charges
and cost, and the basis thereof (including the basis of the Consultant’s costs
and charges); and
(b)
permit the Authority or its designated representative periodically, and up to 1
(one) year from the expiration or termination of this Agreement, to inspect
the accounts of the Consultant and make copies thereof as well as to have
them audited by auditors appointed by the Authority.
Consultant’s actions requiring the Authority's prior approval
The Consultant shall obtain the Authority's prior approval in writing before taking
any of the following actions:
88
3.8
(a)
appointing such members of the Professional Personnel as are not listed in
Annexure 2. Consultant shall submit Curriculum Vitae (CV) of all such
Professional Personnel and take prior approval through written intimation
from the Authority. However if such approval or dis-approval is not received
from Authority within 15 (fifteen) working days of receipt of intimation by
the Authority from the Consultant in writing, deployment of such proposed
personnel shall be deemed to be approved by the Authority. However, this
shall not bar the Authority to seek withdrawal of such Consultant’s
Personnel for non-performance at a future date;
(b)
entering into a subcontract for the performance of any part of the Services, it
being understood (i) that the selection of the Sub-Consultant and the terms
and conditions of the subcontract shall have been approved in writing by the
Authority prior to the execution of subcontract, and (ii) that the Consultant
shall remain fully liable for the performance of the Services by the SubConsultant and its Personnel pursuant to this Agreement; and
(c)
any other action that may be specified in this Agreement.
Reporting obligations
The Consultant shall submit to the Authority the reports and documents specified in
this Agreement, in the form, in the numbers and within the time periods set forth
therein.
3.9
Documents prepared by the Consultant to be property of the Authority
3.9.1
All plans, drawings, specifications, designs, reports and other documents prepared
by the Consultant in performing the Services hereunder shall become and remain the
property of the Authority, and the Consultant shall, not later than termination or
expiration of this Agreement, deliver all such documents to the Authority, together
with a detailed inventory thereof. The Consultant may however, retain a copy of
such documents. Restrictions about the future use of these documents and the
information contained therein shall be as specified in this Agreement.
3.9.2
The Consultant shall not use these documents for purposes other than those
mentioned in this Agreement without the prior written approval of the Authority.
3.10
Equipment and materials furnished by the Authority
Equipment and materials made available to the Consultant by the Authority shall be
the property of the Authority and shall be marked accordingly. Upon termination or
expiration of this Agreement, the Consultant shall furnish forthwith to the Authority,
an inventory of such equipment and materials and shall dispose of such equipment
and materials in accordance with the instructions of the Authority. While in
possession of such equipment and materials, the Consultant shall, unless otherwise
instructed by the Authority in writing, insure them in an amount equal to their full
replacement value as may be determined by the Authority at its sole discretion and
the provisions of Clause 3.5.1 shall apply mutatis mutandis to the insurance taken by
the Consultant under this Clause.
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3.11
Providing access to Project Office and Personnel
The Consultant shall ensure that the Authority and the authorised representatives of
the Authority are provided unrestricted access to the Project office and to all
Personnel during office hours. Any such authorised representatives of the Authority
shall have the right to inspect the Services in progress, interact with Personnel of the
Consultant, any Sub-Consultant and verify the records for his satisfaction.
3.12
Accuracy of Documents
The Consultant shall be responsible for the accuracy of the data collected by it
directly or procured from other agencies/ authorities, the designs, drawings,
estimates and all other details prepared by it as part of the Services. The Consultant
shall indemnify the Authority against any inaccuracy in its work which might
surface during implementation of the Project or up to a period of 1 (one) year from
the date of termination or expiration of this Agreement, as the case may be, if such
inaccuracy is the result of any lack of professional competence, misconduct,
negligence or inadequate due diligence on part of the Consultant or arises out of its
failure to conform to good industry practice. The Consultant shall also be
responsible for promptly correcting, at its own cost and risk, the drawings including
any re-survey/ investigations.
4
CONSULTANT’S PERSONNEL AND SUB-CONSULTANTS
4.1
General
The Consultant shall employ and provide such qualified and experienced Personnel
as may be required to carry out the Services.
4.2
Deployment of Personnel
4.2.1
The designations, names and the estimated periods of engagement in carrying out
the Services by each of the Consultant’s Personnel are described in Annexure 2 of
this Agreement. The estimate costs and man-day rates of Personnel are specified in
Annexure 3 of this Agreement.
4.2.2
Adjustments with respect to the estimated periods of engagement of Personnel set
forth in Annexure 3 may be made by the Consultant by written notice to the
Authority, provided that (i) such adjustments shall not alter the originally estimated
period of engagement of any individual by more than 20% (twenty percent) or one
week, whichever is greater; and (ii) the aggregate of such adjustments shall not
cause payments under this Agreement to exceed the Agreement Value set forth in
Clause 6.1.2 of this Agreement. Any other adjustments shall only be made with the
written approval of the Authority.
4.2.3
If additional work is required beyond the scope of the Services specified in the
Terms of Reference, the estimated periods of engagement of Personnel, set forth in
the Annexures of this Agreement may be increased by agreement in writing between
the Authority and the Consultant, provided that any such increase shall not, except
as otherwise agreed, cause payments under this Agreement to exceed the Agreement
Value set forth in Clause 6.1.2.
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4.3
Approval of Personnel
4.3.1
The Professional Personnel listed in Annexure 2 of this Agreement are hereby
approved by the Authority. No other Key Personnel shall be engaged without prior
written approval of the Authority.
4.3.2
If the Consultant hereafter proposes to engage any person as Key Personnel, it shall
submit to the Authority its proposal along with a Curriculum Vitae (CV) of such
person in the form provided at Schedule 2 of the RFP. The Authority may approve
or reject such proposal within 14 (fourteen) days of receipt thereof. In case the
proposal is rejected, the Consultant may propose an alternative person for the
Authority’s consideration. In the event the Authority does not reject a proposal
within 14 (fourteen) days of the date of receipt thereof under this Clause 4.3, it shall
be deemed to have been approved by the Authority.
4.4
Substitution of Key Personnel
The Consultant hereby undertakes that all the Key Personnel specified in its
Proposal shall be available during implementation of this Agreement. The Authority
will not consider any substitution of Key Personnel except under compelling
circumstances beyond the control of the Consultant and the concerned Key
Personnel. Such substitution shall be limited to not more than 2 (two) Key Personnel
subject to equally or better qualified and experienced personnel being provided to
the satisfaction of the Authority.
4.5
Working hours, overtime, leave, etc.
The Personnel shall not be entitled to be paid separately by the Authority for
overtime nor to take paid sick leave or vacation leave except as specified in this
Agreement, and the Consultant’s remuneration shall be deemed to cover these items.
All leave to be allowed to the Personnel is excluded from the man-days of service
set forth in Annexure 2. The Consultant shall ensure that any absence on leave of
any Personnel shall not delay the progress and/or quality of the Services.
4.6
Team Leader
The person designated as the team leader of the Consultant’s Personnel shall be
responsible for the coordinated, timely and efficient functioning of the Personnel.
4.7
Sub-Consultants
Sub-Consultants listed in Annexure 4 of this Agreement are hereby approved by the
Authority. The Consultant may, with prior written approval of the Authority, engage
additional Sub-Consultants or substitute an existing Sub-Consultant. The hiring of
Personnel by the Sub-Consultants shall be subject to the same conditions as
applicable to Personnel of the Consultant under this Clause 4.
5.
OBLIGATIONS OF THE AUTHORITY
5.1
Assistance in clearances etc.
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Unless otherwise specified in this Agreement, the Authority shall make all
reasonable efforts to ensure that the Government of West Bengal shall:
5.2
(a)
provide the Consultant and its Personnel with work permits and such other
documents as may be necessary to enable the Consultant to perform the
Services;
(b)
make available the Project Site to the Consultant as may be required for
carrying out the Services; and
(c)
issue to officials, agents and representatives of the Government of West
Bengal, all such instructions as may be necessary or appropriate for the
prompt and effective implementation of the Services by the Consultant.
Access to land and property
The Authority warrants that the Consultant shall have, free of charge, unimpeded
access to the Project Site in respect of which access is required for the performance
of Services; provided that, if such access is not made available to the Consultant as
and when so required, the Parties shall agree on (i) the time extension, as may be
appropriate, for the performance of Services, and (ii) the additional payments, if
any, to be made to the Consultant as a result thereof pursuant to Clause 6.1.3.
5.3
Change in Applicable Law
If, after the date of this Agreement, there is any change in Applicable Law with
respect to taxes and duties which increases or decreases the cost or reimbursable
expenses incurred by the Consultant in performing the Services, by an amount
exceeding 2% (two per cent) of this Agreement Value specified in Clause 6.1.2, then
the remuneration and reimbursable expenses otherwise payable to the Consultant
under this Agreement shall be increased or decreased accordingly by agreement
between the Parties hereto, and corresponding adjustments shall be made to the
aforesaid Agreement Value.
5.4
Payment
In consideration of the Services performed by the Consultant under this Agreement,
the Authority shall make to the Consultant such payments and in such manner as is
provided in Clause 6 of this Agreement.
6.
PAYMENT TO THE CONSULTANT
6.1
Cost estimates and Agreement Value
6.1.1
An abstract of the cost of the Services payable to the Consultant is set forth in
Annexure 3 of this Agreement.
6.1.2
Except as may be otherwise agreed under Clause 2.6 and subject to Clause 2.6 and
Clause 6.1.3, the payments under this Agreement shall not exceed the agreement
92
value specified herein (the “Agreement Value”). The Parties agree that the
Agreement Value is Rs.…………………….) (Rupees ………………………only).
6.1.3
Notwithstanding anything to the contrary contained in Clause 6.1.2, if pursuant to
the provisions of Clause 2.6, the Parties agree that additional payments shall be
made to the Consultant in order to cover any additional expenditures not envisaged
in the cost estimates referred to in Clause 6.1.1 above, the Agreement Value set
forth in Clause 6.1.2 above shall be increased by the amount or amounts, as the case
may be, of any such additional payments.
6.2
Currency of payment
All payments shall be made in Indian Rupees.
6.3
Mode of billing and payment
Billing and payments in respect of the Services shall be made as follows:(a)
The Consultant shall be paid for the Services as per the payment schedule at
Annexure 5 of this Agreement, subject to the Consultant fulfilling the
following conditions:
(i)
No payment shall be due for the next stage of the Services till the
Consultant completes to the satisfaction of the Authority the work
pertaining to the preceding stage of the Services.
(ii)
The Authority shall pay to the Consultant, only the amount in respect
of which there is no dispute between the Parties.
(b)
The final payment under this Clause shall be made only after the final report
and a final statement, identified as such, shall have been submitted by the
Consultant and approved as satisfactory by the Authority. The Services shall
be deemed completed and finally accepted by the Authority and the final
report and final statement shall be deemed approved by the Authority as
satisfactory upon expiry of 90 (ninety) days after receipt of the final report
and final statement by the Authority unless the Authority, within such 90
(ninety) day period, gives written notice to the Consultant specifying in
detail, the deficiencies in the Services, the final report or final statement, as
the case may be. The Consultant shall thereupon promptly make any
necessary corrections and/or additions/deletions, and upon completion of
such corrections or additions/deletions, the foregoing process shall be
repeated.
(c)
Any amount which the Authority has paid or caused to be paid in excess of
the amounts actually payable in accordance with the provisions of this
Agreement shall be reimbursed by the Consultant to the Authority within 30
(thirty) days after receipt by the Consultant of notice thereof. Any such claim
by the Authority for reimbursement must be made within 6 (six) months
after receipt by the Authority of a final report and a final statement in
accordance with Clause 6.3 (b) above. Any delay by the Consultant in
reimbursement by the due date shall attract simple interest at the rate of 10%
93
(ten percent) per annum and the Authority shall be entitled to recover such
amounts by forfeiting the Performance Security.
(d)
All payments under this Agreement shall be made to the account of the
Consultant as may be notified to the Authority by the Consultant.
7.
PERFORMANCE SECURITY AND PENALTIES
7.1
Performance Security
The Consultant shall be required to submit an acceptable bank guarantee for an
amount equal to 10% (ten percent) of the Agreement Value as performance security
(“Performance Security”)” within 21 (twenty one) days from the date of issuance of
the LOA by the Authority in favour of the Consultant. The Consultant shall furnish
the Performance Security substantially in the form specified at Annexure 6 of this
Agreement. The validity period of the Performance Security shall be for the entire
term of this Agreement plus 12 (twelve) months. The Authority may, at its sole
discretion, instruct the Consultant to extend the said validity period of the
Performance Security and such instruction shall be binding on the Consultant. The
Performance Security shall be returned to the Consultant after the expiry of 12
(twelve) months after the date of termination/ expiration of this Agreement pursuant
to Clause 2.4 hereof. For the avoidance of doubt, the submission of Performance
Security shall be a condition precedent for signing of this Agreement and nonsubmission of the same by the Consultant shall result in withdrawal of the LOA and
forfeiture of the Bid Security.
7.2
Encashment and appropriation of Performance Security
The Authority shall have the right to invoke and appropriate the proceeds of the
Performance Security, in whole or in part, without notice to the Consultant in the
event of breach of any of the terms and/or conditions of this Agreement by the
Consultant.
7.3
Penalty for deficiency in Services
Warning may be issued to the Consultant for minor deficiencies on its part. In the
case of significant deficiencies in Services causing adverse effect on the Project or
on the reputation of the Authority, other penal action including debarring for a
specified period may also be initiated as per policy of the Authority.
8.
FAIRNESS AND GOOD FAITH
The Parties undertake to act in good faith with respect to each other’s rights under
this Agreement and to adopt all reasonable measures to ensure the realization of the
objectives of this Agreement.
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9.
SETTLEMENT OF DISPUTES
9.1
Amicable settlement
The Parties shall use their best efforts to settle amicably all disputes arising out of or
in connection with this Agreement or the interpretation thereof.
9.2
Dispute resolution
9.2.1
Any dispute, difference or controversy, of whatever nature, howsoever arising under
or out of or in relation to this Agreement (including its interpretation) between the
Parties, and so notified in writing by any Party to the other Party (the “Dispute”)
shall, in the first instance, be attempted to be resolved amicably in accordance with
the conciliation procedure set forth in Clause 9.3.
9.2.2
The Parties agree to use their best efforts for resolving all Disputes arising under or
in respect of this Agreement promptly, equitably and in good faith and further agree
to provide each other with reasonable access during normal business hours to all
non-privileged records, information and data pertaining to any Dispute.
9.3
Conciliation
In the event of any Dispute between the Parties, either Party may call upon the
Principal Secretary, Public Works Department, Government of West Bengal and the
Chairman of the board of directors or any other person of equivalent post of the
Consultant for amicable settlement, and upon such reference, the said persons shall
meet no later than 10 (ten) days from the date of reference to discuss and attempt to
amicably resolve the Dispute. If such meeting does not take place within the 10 (ten)
days period or the Dispute is not amicably settled within 15 (fifteen) days of the
meeting or the Dispute is not resolved as evidenced by the signing of written terms
of settlement within 30 (thirty) days of the notice in writing referred to in Clause
9.2.1 or such longer period as may be mutually agreed by the Parties, either Party
may refer the Dispute to arbitration in accordance with the provisions of Clause 9.4.
9.4
Arbitration
9.4.1
Any Dispute which is not resolved amicably by conciliation, as provided in Clause
9.3, shall be finally decided by reference to arbitration by a sole arbitrator, to be
appointed by the Authority. Such arbitration shall be held in accordance with the
provisions of the Arbitration and Conciliation Act, 1996. The venue of such
arbitration shall be Kolkata and the language of arbitration proceedings shall be
English.
9.4.2
The arbitrator shall make a reasoned award (the “Award”). Any Award made in any
arbitration held pursuant to this Clause 9 shall be final and binding on the Parties as
from the date it is made, and the Consultant and the Authority agree and undertake
to carry out such Award without delay.
9.4.3
The Consultant and the Authority agree that an Award may be enforced against the
Consultant and/or the Authority, as the case may be, and their respective assets
wherever situated.
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9.4.4
This Agreement and the rights and obligations of the Parties shall remain in full
force and effect, pending the Award in any arbitration proceedings hereunder.
9.4.5 The Consultant shall continue with the Services during the conciliation and the
arbitration proceedings and no payment due or payable to the concerned Party shall
be withheld (except to the extent disputed) on account of initiation, commencement
or pendency of such conciliation or arbitration proceedings.
9.4.6 The fees and expenses of arbitration and the conciliation proceedings, if any, shall be
borne equally by the Parties unless otherwise directed by the arbitrator in its Award.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed in
their respective names as of the day and year first above written.
SIGNED, SEALED AND DELIVERED
DELIVERED
For and on behalf of
Consultant:
SIGNED, SEALED AND
(Signature)
(Name)
(Designation)
(Address)
(Fax No.)
(Signature)
(Name)
(Designation)
(Address)
(Fax No.)
For and on behalf of
Authority:
In the presence of:
1.
2.
96
Annexure 1
Terms of Reference
(Refer Clause
3.1.2)
(Reproduce Schedule-1 of
RFP)
97
Annexure 2
Deployment of Personnel
(Refer Clause 4.2)
(Reproduce Form - 11 of Schedule 2 of RFP)
98
Annexure 3
Cost of Services
(Refer Clause 6.1)
(Reproduce Form-2A and 2B of Schedule-3 of RFP)
99
Annexure 4
Approved Sub-Consultant(s)
(Refer Clause 4.7)
(Reproduce Form-13 of Schedule 2 of RFP)
100
Annexure 5
Payment Schedule
(Refer Clause 6.3)
Key
Date
no
Description of deliverables
KD-1
Inception
Report
(Detailed
methodology, Task Assignment
& Manning Schedule; Work
Programme, Proforma for data
collection, etc.)
Stage I: Draft Detailed Feasibility
Report
including
financial
analysis
Stage I: Final Detailed Feasibility
Report
(after
incorporating
necessary observations of the
Client)
Stage II (if WBHDCL approves
in-principle on submission of
stage I): Draft PPP structuring
report and draft Concession
Agreement
Stage II: Final PPP structuring
report
and
Concession
Agreement(after
incorporating
necessary
observations
of
WBHDCL
including
vetted
concession agreement)
Stage III: (if WBHDCL approves
in-principle on submission of
stage II): Preparation of draft
RFP
for
selection
of
Concessionaire
Stage III: Submission of vetted
RFP
for
selection
of
Concessionaire
(after
incorporating
necessary
observations of WBHDCL)
Stage
III:
Assistance
in
evaluation of proposals of RFP,
selection of the successful
bidder, etc. up to financial
closure
KD-2
KD-3
KD-4
KD-5
KD-6
KD-7
KD-8
Cumulative
Payment
Duration
from
(%
of
commencement
contract
(weeks)
amount)
101
1
10
9
15
12
10
15
15
18
10
22
10
24
10
46
20
Notes:
1.
Statement of Expenses shall be submitted by Consultant as per Form 2B at the end of Key
Dates KD-1 to KD-7. For the purposes hereof “Statement of Expenses” means a statement
of the expenses incurred on each of the heads indicated in the Financial Proposal (Form 2B)
The payments on KD-2, KD-3, KD-4, KD-5, KD-6 and KD-7 shall be made to the
Consultant provided that the payments to be made at that Key Date shall not exceed the
amount certified by the Consultant in above-mentioned Statement of Expenses.
2.
All reports shall first be submitted as draft reports for comments of the Authority. The
Authority shall provide its comments no later than 2 (two) weeks from the date of
receiving a draft report and in case no comments are provided within such 2 (two) weeks,
the Consultant shall finalize its report.
102
Annexure- 6
Bank Guarantee for Performance Security
(Refer Clause 7.1)
To
WBHDCL
In consideration of ***** acting on behalf of the [___________] (hereinafter referred as
the “Authority”, which expression shall, unless repugnant to the context or meaning thereof,
include its successors, administrators and assigns) having awarded to M/s ……………….., having
its office at ……………….. (hereinafter referred as the “Consultant” which expression shall,
unless repugnant to the context or meaning thereof, include its successors, administrators,
executors and permitted assigns), vide the Agreement no. .………………. dated ………………..
valued at Rs. ……………….. (Rupees ……………….. only), (hereinafter referred to as the
“Agreement”) a contract for Consultancy Services for preparation of detailed feasibility
report, structuring of the project on public private partnership mode, preparation of
concession agreement and assistance in selection of the concessionaire, and the Consultant
having agreed to furnish a bank guarantee as Performance Security amounting to Rs.
……………….. (Rupees ……………….. only) to the Authority for performance of the said
Agreement.
1.
We, ……………….. (hereinafter referred to as the “Bank”) upon first demand and without
cavil or argument do hereby undertake to pay to the Authority, an amount not exceeding Rs.
………………… (Rupees ………………….only) against any loss or damage caused to or
suffered or would be caused to or suffered by the Authority by reason of any breach by the
said Consultant of any of the terms or conditions contained in the said Agreement and the
Bank hereby waives the necessity of the Authority demanding the aforesaid amount from
the Consultant before presenting the Bank with such demand.
2.
We, ……………….. (indicate the name of the Bank) do hereby unconditionally undertake
to pay the amounts due and payable under this bank guarantee without any demur or protest,
merely on a first demand from the Authority stating that the amount claimed is due by way
of loss or damage caused to or would be caused to or suffered by the Authority by reason of
breach by the said Consultant of any of the terms or conditions contained in the said
Agreement or by reason of the Consultant’s failure to perform the said Agreement. Any
such demand made on the Bank shall be conclusive as regards the amount due and payable
by the Bank under this bank guarantee.
3.
We, ……………….. (indicate the name of Bank) undertake to pay to the Authority any
money so demanded notwithstanding any dispute or disputes raised by the Consultant in
any suit or proceeding pending before any court or tribunal relating thereto and hereby
confirm that our liability under this bank guarantee is absolute and unequivocal. The
payment so made by us under this bank guarantee shall be a valid discharge of our liability
for payment thereunder and the Consultant shall have no claim against us for making such
payment.
103
4.
We, ……………….. (indicate the name of Bank) further agree that the bank guarantee
herein contained shall remain in full force and effect during the period that would be taken
for the performance of the said Agreement and that it shall continue to be enforceable till
all the dues of the Authority under or by virtue of the said Agreement have been fully paid
and its claims satisfied or discharged or till the Authority certifies that the terms and
conditions of the said Agreement have been fully and properly carried out by the said
Consultant and accordingly discharges this bank guarantee.
5.
We, ………………… (indicate the name of Bank) further agree that the Authority shall
have the fullest liberty without our consent and without affecting in any manner our
obligations hereunder to vary any of the terms and conditions of the said Agreement or to
extend time of performance by the said Consultant from time to time or to postpone for
any time or from time to time any of the powers exercisable by the Authority against the
said Consultant and to forbear or enforce any of the terms and conditions relating to the
said Agreement and we shall not be relieved from our liability by reason of any such
variation, or extension being granted to the said Consultant or for any forbearance, act or
omission on the part of the Authority or any indulgence by the Authority to the said
Consultant or any such matter or thing whatsoever which under the law relating to sureties
would, but for this provision, have the effect of so relieving us.
1. We, ____________________(indicate the name of Bank) further agree that no change, or addition
to, or other modification, of the terms of the Agreement or of the services to be performed
thereunder or of any other agreement which may be made between the Authority and the
Consultant shall in any way release the Bank from any liability under this bank guarantee, and
the Bank hereby waives notice of any such change, addition or modification.
7.
We, ……………….. (indicate the name of Bank) agree this bank guarantee will not be
discharged due to any change in the constitution of the Bank or the Consultant.
8.
We, ……………….. (indicate the name of Bank) lastly undertake not to revoke this bank
guarantee during its currency except with the previous consent of the Authority in writing.
9.
Capitalized terms used in this bank guarantee but not defined herein shall have the
meaning given to such terms in the Agreement.
Dated, the ………. day of ………. 20
For ..............................................................
(Name of Bank)
(Signature, Name and Designation of the Authorised Signatory)
Seal of the Bank:
NOTES:
(i)
The bank guarantee should contain the name, designation and code number of the
officer(s) signing the bank guarantee.
(ii)
The address, telephone no. and other details of the head office of the Bank as well as of the
issuing Branch should be mentioned on the covering letter of the issuing branch.
104
APPENDIX 1
105