Public Private Partnership in

Tolling, Operation, Maintenance &

Transfer of Highways

International Competitive Bidding under Single Stage Bidding

Process for

Name of the Project:

REQUEST FOR PROPOSAL (RFP)

BID DOCUMENT - INSTRUCTIONS TO BIDDERS

 TABLE OF CONTENTS

S. No. Contents Page No.

Notice inviting RFP 1
Disclaimer 2
Glossary 4
1 Introduction 5
1.1 Background 5
1.2 Brief description of Bidding Process 6
1.3 Schedule of Bidding Process 8

2 Instructions to Bidders 10
A General 10
2.1 General terms of Bidding 10
2.2 Eligibility and qualification requirement of Bidder 15
2.3 Proprietary Data 19
2.4 Cost of Bidding 20
2.5 Site visit and verification of information 20
2.6 Verification and Disqualification 21

B Documents 21
2.7 Contents of the RFP 21
2.8 Clarifications 22
2.9 Amendment of RFP 22

C Preparation and Submission of BIDs 24

2.10 Format and Signing of BID 24
2.11 Documents comprising Technical & financial BID 24
2.12 BID Due Date 26
2.13 Late BIDs 26
2.14 Procedure of e-tendering 26
2.15 Online opening of Bids 28
2.16 Rejection of BIDs 28
2.17 Validity of BIDs 28
2.18 Confidentiality 28
2.19 Correspondence with the Bidder 28
D BID Security 30
2.20 BID Security 30

3 Evaluation of Technical and Opening & Evaluation of financial 32

Bids
3.1 Opening and Evaluation of Technical Bids 32
3.2 Test of Responsiveness 32
 3.3 Evaluation Parameters 33
3.4 Details of Experience 33
3.5 Financial Information for Purposes of Evaluation 33
3.6 Opening and Evaluation of Financial Bids 34
3.7 Selection of Bidder 34
3.8 Contacts during Bid Evaluation 35
3.9 Correspondence with Bidder 35

4 Fraud and Corrupt Practices 36

5 Pre-BID Conference 38
6 Miscellaneous 39
Appendices
IA Letter comprising the Technical BID 40
IB Letter of Declaration of O&M Entity 45
IC Letter comprising the Financial BID 46
II Bank Guarantee for BID Security 56
III Format for Power of Attorney for signing of BID 59
IV Format for Power of Attorney for Lead Member of Consortium 61
V Format for Joint Bidding Agreement for Consortium 63
VI Integrity Pact 68
VII Year Wise Distribution of Initial Estimated Concession 76
Value of Authority

Annexure of Appendix 1A

I Details of Bidder 48
II Financial Capacity of the bidder 50
III Details of Projects of O&M Entity 52
IV Statement of legal capacity 53
V Guidelines of the Department of Disinvestment 54
 [Name and Address of the Authority]

Notice Inviting Bid

Bid/ Package no *********

Dated **********

RFP for ***************on Toll Operate Transfer Mode

The Government of India had entrusted to the Authority the Tolling, Operation and Maintenance of
National Highway No. **including the section from km **** to km **** (approx. **** km). The
Authority had resolved to undertake the Tolling, Operation and Maintenance of the existing road
from km ** to km ** (approximately *** km) on the *** section of National Highway No. **
(hereinafter called the NH **) in the State of .. (the Project) on Toll Operate Transfer
(TOT) basis, and has decided to carry out the bidding process for selection of [a private entity] as the
Bidder to whom the Project may be awarded. Brief particulars of the Project are as follows:

Name of the Highway Length (in Km) Completed Initial

Project Cost Estimated
(INR)1 Concession
Value of
Authority 2
(INR Cr)

The complete BID document can be viewed / downloaded from e-procurement portal of [NHAI
http://nhai.eproc.in from ****** to ***** (up to ***** Hrs. IST)]. Bid must be submitted online
only at [https://nhai.eproc.in] during the validity of registration with the [NHAI e-Tendering
Portal] being managed by***********, i.e. [https://nhai.eproc.in] on or before ****** (up to
**** hours IST). Technical submissions of the Bids received online shall be opened on **** (at
**** hours IST)Bid through any other mode shall not be entertained. However, Bid Security,
proof of online payment of cost of bid document, Power of Attorney and joint bidding agreement
etc. as specified in Clause 2.11.2 of the RFP shall be submitted physically by the Bidder on or
before **** (at **** hours IST), Please note that the Authority reserves the right to accept or
reject all or any of the BIDs without assigning any reason whatsoever. Thanking you,
Yours faithfully,
******
***********
[Name and Address of the Authority]
1
The TPC at which the project achieved Commencement of Operations/Commercial Operations Date (COD)
2
Initial Estimated Concession Value of the Aauthority shall mean the discounted value (discounted at rate of three
percent above bank Rate) of the free Cashflow expected to be generated by the Project road from the valuation date
until end of concession period of 30 years; as estimated by the Authority. Free Cash Flow shall be be calculated as:
(EBIT(1-Tax Rate)+Depreciation& Amortization- Change in Net Working Capital-Capital Expenditure discounted at
RBI Bank Rate+3% by the Authority. The year wise distribution of the Initial Estimated Concession Value of
Authority is enclosed in Appendix VII
1
 DISCLAIMER

The information contained in this Request for Proposal document (the RFP) or subsequently
provided to Bidder(s), whether verbally or in documentary or any other form by or on behalf of
the Authority or any of its employees or advisors, is provided to Bidder(s) on the terms and
conditions set out in this RFP and such other terms and conditions subject to which such
information is provided.

This RFP is not an Agreement and is neither an offer nor invitation by the Authority to the
prospective Bidders or any other person. The purpose of this RFP is to provide interested
parties with information that may be useful to them in making their financial offers (BIDs)
pursuant to this RFP. This RFP includes statements, which reflect various assumptions
and assessments arrived at by the Authority in relation to the Project. Such assumptions,
assessments and statements do not purport to contain all the information that each Bidder
may require. This RFP may not be appropriate for all persons, and it is not possible for
the Authority, its employees or advisors to consider the investment objectives, financial
situation and particular needs of each party who reads or uses this RFP. The assumptions,
assessments, statements and information contained in the Bidding Documents, especially
the [Feasibility Report], may not be complete, accurate, adequate or correct. Each Bidder
should, therefore, conduct its own investigations and analysis and should check the
accuracy, adequacy, correctness, reliability and completeness of the assumptions,
assessments, statements and information contained in this RFP and obtain independent
advice from appropriate sources.

Information provided in this RFP to the Bidder(s) is on a wide range of matters, some of which
may depend upon interpretation of law. The information given is not intended to be an exhaustive
account of statutory requirements and should not be regarded as a complete or authoritative
statement of law. The Authority accepts no responsibility for the accuracy or otherwise for any
interpretation or opinion on law expressed herein.

The Authority, its employees and advisors make no representation or warranty and shall have no
liability to any person, including any Bidder or Bidder under any law, statute, rules or regulations or
tort, principles of restitution or unjust enrichment or otherwise for any loss, damages, cost or
expense which may arise from or be incurred or suffered on account of anything contained in
this RFP or otherwise, including the accuracy, adequacy, correctness, completeness or
reliability of the RFP and any assessment, assumption, statement or information contained therein
or deemed to form part of this RFP or arising in any way for participation in this BID Stage.

The Authority also accepts no liability of any nature whether resulting from negligence or otherwise
howsoever caused arising from reliance of any Bidder upon the statements contained in this
RFP. The Authority may in its absolute discretion, but without being under any obligation to do so,
update, amend or supplement the information, assessment or assumptions contained in this RFP.

The issue of this RFP does not imply that the Authority is bound to select a Bidder or to appoint the
Selected Bidder JV, as the case may be, for the Project and the Authority reserves the right to reject
all or any of the Bidders or BIDs without assigning any reason whatsoever.

The Bidder shall bear all its costs associated with or relating to the preparation and
submission of its BID including but not limited to preparation, copying, postage, delivery fees,
2
expenses associated with any demonstrations or presentations which may be required by the
Authority or any other costs incurred in connection with or relating to its BID. All such costs and
expenses will remain with the Bidder and the Authority shall not be liable in any manner
whatsoever for the same or for any other costs or other expenses incurred by a Bidder in
preparation or submission of the BID, regardless of the conduct or outcome of the Bidding Process.

3
 GLOSSARY

Associate As defined in Clause 2.1.18

Agreement As defined in Clause 1.1.5
Authority As defined in Clause 1.1.1
Bank Guarantee As defined in Clause 2.20.1
BID(s) As defined in the Disclaimer
Bidders As defined in Clause 1.2.2
Bidding Documents As defined in Clause 1.1.7
BID Due Date As defined in Clause 1.1.7
Bidding Process As defined in Clause 1.2.1
BID Security As defined in Clause 1.2.4
BID Concession Fee As defined in Clause 1.2.6
Concession As defined in Clause 1.1.5
Concession Agreement As defined in Clause 1.1.2
Concessionaire As defined in Clause 1.1.2
Conflict of Interest As defined in Clause 2.2.1
Consortium As defined in Clause 2.2.1(a)
Demand Draft As defined in Clause 2.20.2
Estimated Concession Value As defined in Clause 1.1.4
Feasibility Report As defined in Clause 1.2.3
Government Government of India
Lowest Bidder As defined in Clause 1.2.6
LOA As defined in Clause 3.8.4
Project As defined in Clause 1.1.1
Re. or Rs. or INR Indian Rupee
RFP or Request for Proposals As defined in the Disclaimer
Selected Bidder As defined in Clause 3.8.1

The words and expressions beginning with capital letters and defined in this document shall,
unless repugnant to the context, have the meaning ascribed thereto herein.

4
 [NAME OF THE AUTHORIUTY]

SECTION 1

INTRODUCTION
1.1. Background
1.1.1 The [National Highways Authority of India represented by Chairman] (the Authority)
is engaged in the Operations and Maintenance of National Highways and as part of this
endeavour, the Authority has decided to undertake Operation / Maintenance of the
******** Project (the Project) through Public Private Partnership (the PPP) on Toll
Operate and Transfer (the TOT) basis for a period of 30 years basis, and has decided to
carry out the bidding process for selection of a private entity as the Bidder to whom the
Project may be awarded. A brief description of the project may be seen in the Information
Memorandum of the Project at the Authoritys website [www.nhai.org/
https://nhai.eproc.in ]. Brief particulars of the Project are as follows:

Project Name Length (in Completed Project Initial Estimated

Km) Cost Concession Value
(INR Cr) of Authority
(INR Cr)

1.1.2 The Selected Bidder, who is either a company incorporated under the Companies Act, 1956 or
its substitute thereof or undertakes to incorporate as such prior to execution of the
concession agreement (the Concessionaire), shall be responsible for operation and
maintenance of the Project under and in accordance with the provisions of a long-term
concession agreement (the Concession Agreement) to be entered into between the
Concessionaire and the Authority in the form provided by the Authority as part of the
Bidding Documents pursuant hereto.

The scope of work will broadly include Tolling, Operation, Management Maintenance and
Transfer of the Project Highway subject to and in accordance with the provisions of this
Agreement; and Performance and fulfilment of all other obligations of the Concessionaire
in accordance with the provisions of this Agreement and matters incidental thereto or
necessary for the performance of any or all of the obligations of the Concessionaire under
this Agreement.

5
1.1.3 The Estimated Concession Value of the Project (the Initial Estimated Concession
Value of Authority) has been specified in the clause 1.1.1 above. The assessment of
actual Concession Fee, however, will have to be made by the Bidders.

1.1.4 The Concession Agreement sets forth the detailed terms and conditions for grant of the
concession to the Concessionaire, including the scope of the Concessionaires services
and obligations (the Concession).

1.1.5 The statements and explanations contained in this RFP are intended to provide a better
understanding to the Bidders about the subject matter of this RFP and should not be
construed or interpreted as limiting in any way or manner the scope of services and
obligations of the Concessionaire set forth in the Concession Agreement or the
Authoritys rights to amend, alter, change, supplement or clarify the scope of work, the
Concession to be awarded pursuant to this RFP or the terms thereof or herein contained.
Consequently, any omissions, conflicts or contradictions in the Bidding Documents
including this RFP are to be noted, interpreted and applied appropriately to give effect to
this intent, and no claims on that account shall be entertained by the Authority.

1.1.6 The Authority shall receive Bids pursuant to this RFP in accordance with the terms set
forth in this RFP and other documents to be provided by the Authority pursuant to this
RFP (collectively the "Bidding Documents"), and all Bids shall be prepared and
submitted in accordance with such terms on or before the Bid due date specified in
Clause 1.3 for submission of Bids (the Bid Due Date).

1.2. Brief description of Bidding Process

1.2.1 The Authority has adopted a single stage two envelop process (referred to as the
"Bidding Process") for selection of the Bidder for award of the Project. Under this
process, the Bid shall be invited under two envelops. Prior to or along with the Bid, the
Bidder shall pay to the Authority a sum of **** 3 as the cost of the RFP process.
Eligibility and qualification of the Bidder will be first examined based on the details
submitted under first envelop (Technical Bid) with respect to eligibility and
qualifications criteria prescribed in this RFP. (The Bidder, which expression shall,
unless repugnant to the context, include the members of the Consortium). The
Financial Bid under the second envelop shall be opened of only those Bidders whose
Technical Bids are responsive to eligibility and qualifications requirements as per this
RFP.

[GOI has issued guidelines (see Annexure V of Appendix-1A of RFP) for qualification of
bidders seeking to acquire stakes in any public sector enterprise through the process of
disinvestment. These guidelines shall apply mutatis mutandis to this Bidding Process.

3
The cost of RFP may be determined at the rate of Rs. 10,000 for every Rs. 100 crore or part thereof comprising the Initial
Estimated Concession Value of the Authority Thus the cost of an RFP document for a project of Rs. 500 crore shall be Rs. 50,
000.
6
 The Authority shall be entitled to disqualify any Bidder in accordance with the aforesaid
guidelines at any stage of the Bidding Process. Bidders must satisfy themselves that they are
qualified to bid, and should give an undertaking to this effect in the form at Appendix-IA]

1.2.2 Interested bidders (Bidders) are being called upon to submit their Bid in accordance with
the terms specified in this Bidding Document. The Bid shall be valid for a period of 120
days from the date specified in Clause 1.3 for submission of Bids (the Bid Due Date).

1.2.3 The complete Bidding Documents including the draft agreement for the Project is
enclosed for the Bidders. The Feasibility Report / Detailed Project Report, As- Built
Drawings, O&M Manuals, Traffic Studies prepared by the Authority/ consultants of the
Authority (the "Feasibility Report/Detailed Project Report" ) is also enclosed for guidance
purposes only. Subject to the provisions of Clause 2.1.3, the aforesaid documents and
any addenda issued subsequent to this RFP Document, will be deemed to form part of
the Bidding Documents.

1.2.4 A Bidder is required to deposit, along with its Bid, a Bid Security4 of Rs. ****
Crores (Rupees **********) (the "Bid Security"), refundable not later than 240 (Two
hundred & forty) days from the Bid Due Date, except in the case of the Selected
Bidder whose Bid Security shall be retained till it has provided a Performance
Security under the Agreement. The Bidders will have an option to provide Bid Security
in the form of a demand draft or a bank guarantee acceptable to the Authority, and in such
event, the validity period of the bank guarantee shall not be less than 120 (one hundred
and twenty) days from the Bid Due Date and a claim period of 120 (one hundred and
twenty) days, and may be extended as may be mutually agreed between the Authority and
the Bidder from time to time and that of the demand draft shall not be less than 120 (sixty)
days from the Bid Due Date. Upon submission of demand draft, the same shall be
encashed by the Authority. The Bid shall be summarily rejected if it is not accompanied
by the Bid Security.

1.2.5 During the Bid Stage, Bidders are advised to examine the Project in greater detail, and to
carry out, at their cost, such studies as may be required for submitting their respective
Bids for award of the contract including implementation of the Project.

1.2.6 Bids are invited for the Project on the basis of the Highest Upfront Concession Fee (the
Bid Concession Fee5). The Bid Concession Fee would be summation of (a) Net Present
Value (NPV) of Free Cash Flow as estimated by the Concessionaire during the Entire
Concession Period at the concessionaires own discount rate. The Concession Period is pre-
determined, as indicated in the Concession Agreement. The Bid Concession Fee shall

4
The Bid Security shall generally be 5% of the Initial Estimated Concession Value of Authority.
5
Free Cash Flow as estimated by the Concessionaire-EBIT(1-Tax Rate) + Depreciation & Amortization - Change in
Net Working Capital - Capital Expenditure
7
 constitute the sole criteria for evaluation of Bids. Subject to Clause 2.16, the Project will be
awarded to the Bidder quoting the Highest Bid Concession Fee.
In this RFP, the term Highest Bidder shall mean the Bidder who is quoting the highest
Bid Concession Fee.

1.2.7 Generally, the Highest Bidder shall be the Selected Bidder. The remaining Bidders shall
be kept in reserve and may, in accordance with the process specified in Clause 3 of this
RFP, be invited to match the Bid submitted by the Highest Bidder in case such Highest
Bidder withdraws or is not selected for any reason. In the event that none of the other
Bidders match the Bid of the Highest Bidder, the Authority may, in its discretion, either
invite fresh Bids from the remaining Bidders or annul the Bidding Process.

1.2.8 In the event, the Bid Concession Fee of the Highest Bidder is lower by more than 10%
with respect to the Initial Estimated Concession Value of Authority, the Concessionaire
shall submit an Additional Performance Security (the Additional Performance
Security as per the provision of the Concession Agreement. The Additional Performance
Security shall be determined @ 10% of the difference in the Initial Estimated Concession
Value of Authority and the Bid Concession Fee.

1.2.9 The Concessionaire shall not be entitled to levy and charge a user fee from users of the
Project.

1.2.10 Other details of the process to be followed under this bidding process and the terms
thereof are spelt out in this RFP.

1.2.11 Any queries or request for additional information concerning this RFP shall be
submitted by e-mail to the officer designated in Clause 2.11.4 below with
identification/ title: "Queries / Request for Additional Information:
RFP for *****on Toll Operate Transfer Mode

1.3. Schedule of Bidding Process

The Authority shall endeavour to adhere to the following schedule:
Sl. No. Event Description Date
1. Invitation of RFP (NIT) ****
2. Last date for receiving queries ****
3. Pre-Bid meeting at venue mentioned at ****
Clause 2.11.4
4. Authority response to queries latest by ****
5. Bid Due Date ****
6. Physical Submission of Bid Security/POA etc [till 11.00 Hrs IST on Bid Due Date
7. Opening of Technical Bids at venue provided [at 11.30 Hrs. on Bid Due Date]
in Clause 2.11.4

8
8. Declaration eligible / qualified bidders [within 20 days from Bid Due Date]
9. Opening of Financial Bid [within 30 days from Bid Due Date]
10. Letter of Award (LOA) Within 60 days of Bid Due Date
11. Validity of Bid 120 days from Bid Due Date
12. Signing of Agreement Within 45 days of award of LOA

9
 SECTION-2
INSTRUCTIONS TO BIDDERS
A. GENERAL
2.1 General terms of Bidding

2.1.1 No Bidder shall submit more than one Bid for the Project. A Bidder bidding
individually or as a member of a Consortium shall not be entitled to submit another
BID either individually or as a member of any Consortium, as the case may be.

2.1.2 An international Bidder bidding individually or as a member of a Consortium shall

ensure that Power of Attorney is legalised/apostille by appropriate authority
notarised in the jurisdiction where the Power of Attorney is being issued and
requirement of Indian Stamp Act is duly fulfilled.

2.1.3 The Feasibility Report / Detailed Traffic Report/ As Built Drawings/ O&M Manual
of the Project are being provided only as a preliminary reference document by way of
assistance to the Bidders who are expected to carry out their own surveys, investigations
and other detailed examination of the Project before submitting their Bids. Nothing
contained in the Feasibility Report/Detailed Project Report shall be binding on the
Authority nor confer any right on the Bidders, and the Authority shall have no liability
whatsoever in relation to or arising out of any or all contents of the Feasibility
Report/Detailed Project Report.

2.1.4 Notwithstanding anything to the contrary contained in this RFP, the detailed terms
specified in the draft concession agreement shall have overriding effect; provided,
however, that any conditions or obligations imposed on the Bidder hereunder shall continue
to have effect in addition to its obligations under the Concession Agreement.

2.1.5 The Bid shall be furnished in the format exactly as per Appendix-I i.e. Technical Bid as
per Appendix IA and Financial Bid as per Appendix IB. Bid Concession Fee amount
shall be indicated clearly in both figures and words, in Indian Rupees in prescribed
format of Financial Bid and it will be signed by the Bidders authorised signatory. In
the event of any difference between figures and words, the amount indicated in words shall
be taken into account.

2.1.6 The Bidder shall deposit a Bid Security6 of Rs. *** Crores (Rupees *****) in
accordance with the provisions of this RFP. The Bidder has the option to provide the Bid
Security either as a Demand Draft or in the form of a Bank Guarantee acceptable to the
Authority, as per format at Appendix-II. The Bidders shall also submit proof of online
payment of Rs.**** (Rupees) towards cost of bid document.

6
The Bid Security shall generally be 5% of the Initial Estimated Concession Value of Authority.
10
2.1.7 The validity period of the Bank Guarantee, shall not be less than 120 (one hundred and
twenty) days from the Bid Due Date and a claim period of 120 (Sixty) days, and may be
extended as may be mutually agreed between the Authority and the Bidder. The Bid
shall be summarily rejected if it is not accompanied by the Bid Security. The Bid Security
shall be refundable no later than 240 (Two hundred and forty) days from the Bid Due
Date except in the case of the Selected Bidder whose Bid Security shall be retained till
it has provided a Performance Security under the Agreement.

2.1.8 The Bidder should submit a Power of Attorney as per the format at Appendix-III,
authorising the signatory of the Bid to commit the Bidder.

2.1.9 In case the Bidder is a Consortium, the Members thereof should furnish a Power of
Attorney in favour of any Member, such Member shall thereafter be identified as the Lead
Member, in the format at Appendix IV. In case the Bidder is a Consortium, Joint
Bidding Agreement in the format at Appendix V shall be submitted by the bidder.

2.1.10 Any condition or qualification or any other stipulation contained in the Bid shall
render the Bid liable to rejection as a non-responsive Bid.

2.1.11 The Bid and all communications in relation to or concerning the Bidding
Documents and the Bid shall be in English language.

2.1.12 The Bidding documents including this RFP and all attached documents, provided by the
Authority are and shall remain or become the property of the Authority and are
transmitted to the Bidders solely for the purpose of preparation and the
submission of a Bid in accordance herewith. Bidders are to treat all information as strictly
confidential and shall not use it for any purpose other than for preparation and submission
of their Bid. The provisions of this Clause 2.1.12 shall also apply mutatis mutandis to
Bids and all other documents submitted by the Bidders, and the Authority will not return
to the Bidders any Bid, document or any information provided along therewith.

2.1.13 This RFP is not transferable.

2.1.14 Any award of Project pursuant to this RFP shall be subject to the terms of Bidding
Documents.

2.1.15 Where the Bidder is a single entity, it shall be required to form an appropriate Special
Purpose Vehicle, incorporated under the Indian Companies Act 2013 (the SPV), to
execute the Concession Agreement and implement the Project. In case the Bidder is a

In case of a Consortium, the Members should submit a Power of Attorney in favour of the any Member as per the format as
Appendix-IV. Such Member shall thereafter be identified as the Lead Member. The Lead Member should submit a power of
Attorney as per the format in Appendix-III, authorising the signatory of the Application. Members of the Consortium of need not
submit Power of Attorney as per the format at Appendix-III, authorising the signatory of the Application.

11
Consortium, it shall, in addition to forming an SPV, comply with the following additional
requirements:
(a) Number of members in a consortium shall not exceed 6 (six), but information sought
in the Bid may be restricted to 4 (four) members in the order of their equity
contribution;

(b) subject to the provisions of clause (a) above, the Bid should contain the information
required for each member of the Consortium;

(c) members of the Consortium shall nominate one member as the lead member (the
Lead Member), who shall have an equity share holding of at least 26% (twenty six
per cent) of the paid up and subscribed equity of the SPV. The nomination(s) shall be
supported by a Power of Attorney, as per the format at Appendix-III, signed by all the
other members of the Consortium;

(d) the Bid should include a brief description of the roles and responsibilities of individual
members, particularly with reference to financial, technical and O&M obligations;

(e) an individual Bidder cannot at the same time be member of a Consortium applying
RFP. Further, a member of a particular Bidder Consortium cannot be member of any
other Bidder Consortium applying for RFP;

(f) the members of a Consortium shall form an appropriate SPV to execute the Project, if
awarded to the Consortium;

(g) members of the Consortium shall enter into a binding Joint Bidding Agreement,
substantially in the form specified at Appendix-V (the Jt. Bidding Agreement), for
the purpose of submitting a Bid. The Jt. Bidding Agreement, to be submitted along
with the Application, shall, inter alia:

(i) convey the intent to form an SPV, solely for the purpose of domiciling the
Project and no other purpose, with shareholding/ ownership equity
commitment(s) in accordance with this RFP, which would enter into the
Concession Agreement and subsequently perform all the obligations of the
Concessionaire in terms of the Concession Agreement, in case the
concession to undertake the Project is awarded to the Consortium;

(ii) clearly outline the proposed roles and responsibilities, if any, of each
member;

(iii) commit the minimum equity stake to be held by each member;

12
 (iv) commit that each of the members, whose experience will be evaluated for
the purposes of this RFP, shall subscribe to 26% (twenty six per cent) or
more of the paid up and subscribed equity of the SPV and shall further
commit that each such member shall, for a period of 2 (two) years from the
date of commercial operation of the Project, hold equity share capital not
less than: (i) 26% (twenty six per cent) of the subscribed and paid up
equity share capital of the SPV; and (ii) 5% (five per cent) of the Total
Project Cost specified in the Concession Agreement;

(v) members of the Consortium undertake that they shall collectively hold at
least 51% (fifty one per cent) of the subscribed and paid up equity of the
SPV at all times until the second anniversary of the commercial operation
date of the Project; and

(vi) include a statement to the effect that all members of the Consortium shall
be liable jointly and severally for all obligations of the Concessionaire in
relation to the Project until the Financial Close of the Project is achieved in
accordance with the Concession Agreement; and

(h) except as provided under this RFP and the Bidding Documents, there shall not be any
amendment to the Jt. Bidding Agreement without the prior written consent of the
Authority.

2.1.16 Any entity which has been barred by the Central/ State Government, or any entity
controlled by it, from participating in any project (BOT or otherwise), and the bar
subsists as on the date of Bid, would not be eligible to submit a Bid, either individually or
as member of a Consortium.

2.1.17 A Bidder including any Consortium Member or Associate should, in the last 3 (three)
years, have neither failed to perform on any contract, as evidenced by imposition of a
penalty by an arbitral or judicial authority or a judicial pronouncement or arbitration
award against the Bidder, Consortium Member or Associate, as the case may be, nor has
been expelled from any project or contract by any public entity nor have had any contract
terminated any public entity for breach by such Bidder, Consortium Member or Associate.
Authority would place sole reliance on the certification provided by the Bidder in this
regard in its letter comprising the Technical Bid.

2.1.18 In computing the Technical Capacity and Net Worth of the Bidder/ Consortium Members
under Clauses 2.2.2, 2.2.3 and 3.4, the Technical Capacity and Net Worth of their
respective Associates would also be eligible hereunder.

For purposes of this RFP, Associate means, in relation to the Bidder/ Consortium Member,
a person who controls, is controlled by, or is under the common control with such Bidder/
13
 Consortium Member (the Associate). As used in this definition, 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 by operation of law.

It is clarified that a certificate from a qualified external auditor who audits the book of
accounts of the Bidder or the Consortium Member shall be provided to demonstrate that a
person is an Associate of the Bidder or the Consortium as the case may be.

2.1.19 The following conditions shall be adhered to while submitting a Bid:

(a) Bidders should attach clearly marked and referenced continuation sheets in the event
that the space provided in the prescribed forms in the Annexes is insufficient.
Alternatively, Bidders may format the prescribed forms making due provision for
incorporation of the requested information;

(b) information supplied by a Bidder (or other constituent Member if the Bidder is a
Consortium) must apply to the Bidder, Member or Associate named in the Bid and
not, unless specifically requested, to other associated companies or firms;

(c) in responding to the RFP submissions, Bidders should demonstrate their capabilities in
accordance with Clause 3.1 below; and

(d) in case the Bidder is a Consortium, each Member should substantially satisfy the RFP
requirements to the extent specified herein.

2.1.20 While Qualification is open to persons from any country, the following provisions shall
apply:

(a) Where, on the date of the Bid, not less than 25% (twenty five percent) of the aggregate
issued, subscribed and paid up equity share capital in a Bidder or its Member is held
by persons resident outside India or where an Bidder or its Member is controlled by
persons resident outside India; or

(b) if at any subsequent stage after the date of the Bid, there is an acquisition of not less
than 25% (twenty five percent) of the aggregate issued, subscribed and paid up equity
share capital or control, by persons resident outside India, in or of the Bidder or its
Member;

then the Eligibility of such Bidder shall be subject to approval of the Authority from
national security and public interest perspective. The decision of the Authority in this
behalf shall be final and conclusive and binding on the Bidder.
14
 The holding or acquisition of equity or control, as above, shall include direct or indirect
holding/ acquisition, including by transfer, of the direct or indirect legal or beneficial
ownership or control, by persons acting for themselves or in concert and in determining
such holding or acquisition, the Authority shall be guided by the principles, precedents
and definitions contained in the Securities and Exchange Board of India (Substantial
Acquisition of Shares and Takeovers) Regulations, 2011, or any substitute thereof, as in
force on the date of such acquisition.

The Bidder shall promptly inform the Authority of any change in the shareholding, as
above, and failure to do so shall render the Bidder liable for disqualification from the
Bidding Process.

2.1.21 Notwithstanding anything to the contrary contained herein, in the event that the Bid Due
Date falls within three months of the closing of the latest financial year of a Bidder, it
shall ignore such financial year for the purposes of its Application and furnish all its
information and certification with reference to the 5 (five) years or 1 (one) year, as the
case may be, preceding its latest financial year. For the avoidance of doubt, financial year
shall, for the purposes of an Application hereunder, mean the accounting year followed by
the Bidder in the course of its normal business.

2.2 Eligibility and qualification requirements of Bidder

2.2.1 For determining the eligibility of Bidder the following shall apply:

(a) The Bidder may be a single entity or a group of entities (the Consortium), coming
together to implement the Project. However, no Bidder applying individually or as a
member of a Consortium, as the case may be, can be member of another Bidder. The term
Bidder used herein would apply to both a single entity and a Consortium.

(b) Bidder may be a natural person, private entity, or any combination of them with a formal
intent to enter into a Joint Bidding Agreement or under an existing agreement to form a
Consortium. A Consortium shall be eligible for consideration subject to the conditions set
out in Clause 2.1.15.

(c) A Bidder shall not have a conflict of interest (the Conflict of Interest) that affects the
Bidding Process. Any Bidder found to have a Conflict of Interest shall be disqualified. In the
event of disqualification, the Authority shall be entitled to forfeit and appropriate 5% of
the value of the Bid Security or equivalent amount from the Performance Security, as the
case may be, as mutually agreed genuine pre-estimated loss and damage likely to be
suffered and incurred by the Authority and not by way of penalty for, inter alia, the time,
cost and effort of the Authority, including consideration of such Bidders proposal (the
Damages), without prejudice to any other right or remedy that may be available to the
Authority under the Bidding Documents and/or the Concession Agreement or otherwise.

15
 Without limiting the generality of the above, a Bidder shall be deemed to have a Conflict
of Interest affecting the Bidding Process, if:

(i) the Bidder, its Member or Associate (or any constituent thereof) and any other Bidder, its
Member or any Associate thereof (or any constituent thereof) have common controlling
shareholders or other ownership interest; provided that this disqualification shall not apply in cases
where the direct or indirect shareholding of a Bidder, its Member or an Associate thereof (or any
shareholder thereof having a shareholding of not more than 25% (twenty five per cent) of the
paid up and subscribed capital; of such Bidder, Member or Associate, as the case may be) in
the other Bidder, its Member or Associate, is not more than 2 5% (Twenty five per cent) of the
subscribed and paid up equity share capital thereof; provided further that this disqualification
shall not apply to any ownership by a bank, insurance company, pension fund or a public
financial institution referred to in section 4A of the Companies Act, 1956/2013. For the purposes
of this Clause 2.2.1(c), 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
(the 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% of the subscribed and paid up equity shareholding of such intermediary; or

(ii) a constituent of such Bidder is also a constituent of another Bidder; or

(iii) such Bidder, its Member or any Associate thereof receives or has received any direct
or indirect subsidy, grant, concessional loan or subordinated debt from any other
Bidder, its Member or Associate, or has provided any such subsidy, grant,
concessional loan or subordinated debt to any other Bidder, its Member or any
Associate thereof; or

(iv) such Bidder has the same legal representative for purposes of this Bid as any other
Bidder; or

(v) such Bidder, or any Associate thereof, has a relationship with another Bidder, or any
Associate thereof, directly or through common third party/ parties, that puts either or
both of them in a position to have access to each others information about, or to
influence the Bid of either or each other; or

(vi) such Bidder or any Associate thereof has participated as a consultant to the
Authority in the preparation of any documents, design or technical specifications of
the Project.
16
 (vii) such Bidder or any Associate thereof has appointed any official of the Authority,
Ministry of Road Transport & Highways, Technical Advisors of Authority for the
Project, Legal Advisors of Authority for the Project, Financial Advisors of Authority
for the Project, dealing with the Project, within a period of 1 years from the date of
award of the Project to that Bidder.

Explanation:

In case a Bidder is a Consortium, then the term Bidder as used in this Clause 2.1.12,
shall include each Member of such Consortium.

For purposes of this RFP, Associate means, in relation to the Bidder/ Consortium Member, a
person who controls, is controlled by, or is under the common control with such Bidder/
Consortium Member (the Associate). As used in this definition, 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 by operation of law.

(d) A Bidder shall be liable for disqualification and forfeiture of Bid Security if any legal,
financial or technical adviser of the Authority in relation to the Project is engaged by the
Bidder, its Members or any Associate thereof, as the case may be, in any manner for
matters related to or incidental to such Project during the Bidding Process or
subsequent to the (i) issue of the LOA or (ii) execution of the Concession Agreement. In
the event any such adviser is engaged by the Selected Bidder or Concessionaire, as the
case may be, after issue of the LOA or execution of the Concession Agreement for
matters related or incidental to the Project, then notwithstanding anything to the
contrary contained herein or in the LOA or the Concession Agreement and without
prejudice to any other right or remedy of the Authority, including the forfeiture and
appropriation of the Bid Security or Performance Security, as the case may be, which the
Authority may have thereunder or otherwise, the LOA or the Concession Agreement, as the
case may be, shall be liable to be terminated without the Authority being liable in any
manner whatsoever to the Selected Bidder or Concessionaire for the same. For the
avoidance of doubt, this disqualification shall not apply where such adviser was
engaged by the Bidder, its Member or Associate in the past but its assignment expired or
was terminated 6 (six) months prior to the date of issue of RFP for the Project. Nor will
this disqualification apply where such adviser is engaged after a period of 3 (three) years
from the date of commercial operation of the Project.

Notwithstanding anything to the contrary contained in sub-clause (c) (i) of Clause 2.2.1, an
Bidder may, within 10 (ten) days after the Application Due Date remove from its Consortium
17
 any Member who suffers from a Conflict of Interest, and such removal shall be deemed to
cure the Conflict of Interest arising in respect thereof. However his financial bid shall not be
opened.

Provided further, in case the Authority seeks information / clarification from a Bidders
related to occurrence / non-occurrence of Conflict of Interest and the Bidders fails to provide
such information within a reasonable time, the Authority shall disqualify the Bidders. Encah
its Bid Security as per provision of Clause 2.20.7 (a) and further debar it from participation
in any future procurement process for a minimum period of 1 year.

2.2.2 To be eligible for this RFP a Bidder shall fulfil the following conditions of eligibility:

(A) Technical Capacity:

The Bidder at this stage would not be required to demonstrate technical strength, however
in the event that the Bidder does not have the requisite O&M experience over a period of 5
years immediately preceding the Bid Due Date, it shall either enter into an agreement (on
or before signing of the Concession Agreement), with an entity having experience relating
to the performance of O&M obligations for atleast five projects having a Total Project
Cost (TPC) of ,failing which the Concession Agreement shall be liable to
termination]. The Bidder shall declare the name of such O&M Entity in the bid in
accordance to Appendix IB furnish all supporting documents as per Annex-III. The
Bidder will be permitted to substitute such O&M Entity provided the new O&M Entity
fulfils the Eligibility Criteria and the Authority approves the appointment of such O&M
Entity.

(B) Financial Capacity: The Bidder shall have a minimum Net Worth/ Asset Under
Management (the Financial Capacity7) of Rs. ***** Crore (Rupees ****** only) at
the close of the preceding financial year.

In case of a Consortium, the combined technical capability and net worth of those
Members, who have and shall continue to have an equity share of at least 26% (twenty six
per cent) each in the SPV, should satisfy the above conditions of eligibility; provided that
each such Member shall, for a period of 2 (two) years from the date of commercial
operation of the Project, hold equity share capital not less than: (i) 26% (twenty six per

7
In case Networth is used as criteria for evaluation then the Threshold Financial Capacity shall be [40%] of the
Initial Estimated Concession Value of Authority. In case AUM is used as a criteria for evaluation then the Threshold
Financial Capacity should be 5 times the Initial Estimated Concession Value of Authority. The AUM needs to be
certified by a Chartered Accountant (C.A.)

In case a Bidder has issued any fresh Equity Capital during the current financial year, the same shall be permitted to
be added to the Bidders Net Worth subject to the Statutory Auditor of the Bidder certifying to this effect.
18
 cent) of the subscribed and paid up equity of the SPV; and (ii) 5% (five per cent) of the
Total Project Cost specified in the Concession Agreement.

Provided further that each member of the Consortium shall have a minimum Net Worth of
12.5% of Estimated Concession fee in the immediately preceding financial year.

2.2.3 The Bidders shall enclose with its bid, to be submitted as per the format at Appendix-IA,
complete with its Annexes, the following:

(i) Certificate(s) from its statutory auditors8$ or the concerned client(s) stating the
payments made/ received or works commissioned, as the case may be, during the
past 5 years in respect of the projects specified in paragraph 2.2.2 (A) above. In
case a particular job/ contract has been jointly executed by the Bidder (as part of a
consortium), it should further support its claim for the share in work done for that
particular job/ contract by producing a certificate from its statutory auditor or the
client; and

(ii) Certificate(s) from its statutory auditors specifying the net worth/ Asset Under
Management9 of the Bidder, as at the close of the preceding financial year, and
also specifying that the methodology adopted for calculating such net worth
conforms to the provisions of this Clause 2.2.3 (ii). For the purposes of this RFP,
net worth/Asset Under Management (the Net Worth) shall mean the aggregate
value of the paid-up share capital and all reserves created out of the profits and
securities premium account, after deducting the aggregate value of the
accumulated loses, deferred expenditure and miscellaneous expenditure not
written off, as per the audited balance sheet, but does not include reserves created
out of revaluation of assets, write back of depreciation and amalgamation (the
Assets Under Management) shall mean the Market Value of the Assets managed
by self or on behalf of Investors

2.3 Proprietary data

All documents and other information supplied by the Authority or submitted by a Bidder to
the Authority shall remain or become the property of the Authority. Bidders are to treat all

The Authority may, in its discretion, impose further obligations in the Concession Agreement, but such obligations
should provide sufficient mobility for partial divestment of equity without compromising the interests of the Project.
$
In case duly certified audited annual financial statements containing explicitly the requisite details are provided, a
separate certification by statutory auditors would not be necessary in respect of Clause 2.2.3 (i). In jurisdictions that
do not have statutory auditors, the firm of auditors which audits the annual accounts of the Bidder may provide the
certificates required under this RFP.

In case of consortium, the members should submit a Power of Attorney in favour of the Lead Member as per format
at Appendix-IV. The Lead Member should submit a Power of Attorney as per format at Appendix-III, authorizing the
signatory of the Bids. Members of the Consortium need not submit Power of Attorney as per the format at Appendix-
III, authorizing the signatory of the Bid.

9
Market Value of all Investments of self or Investors
19
 information as strictly confidential and shall not use it for any purpose other than for
preparation and submission of their Bid. The Authority will not return any Bid or any
information provided along therewith.

2.4 Cost of Bidding

The Bidders shall be responsible for all of the costs associated with the
preparation of their Bids and their participation in the Bidding Process. The
Authority will not be responsible or in any way liable for such costs, regardless of the
conduct or outcome of the Bidding Process.

2.5 Site visit and verification of information

2.5.1 Bidders are encouraged to submit their respective Bids after visiting the Project site and
ascertaining for themselves the site conditions, location, traffic, surroundings,
climate, availability of power, water & other utilities access to site, handling and
storage of materials, weather data, applicable laws and regulations, and any other
matter considered relevant by them. Bidders are advised to visit the site and familiarise
themselves with the Project with in the stipulated time of submission of the Bid. No
extension of time is likely to be considered for submission of Bids.

2.5.2 It shall be deemed that by submitting a Bid, the Bidder has:

(a) made a complete and careful examination of the Bidding Documents;
(b) received all relevant information requested from the Authority;
(c) accepted the risk of inadequacy, error or mistake in the information provided in the
Bidding Documents or furnished by or on behalf of the Authority relating to any of the
matters referred to in Clause 2.5.1 above;
(d) satisfied itself about all matters, things and information including matters referred to
in Clause 2.5.1 hereinabove necessary and required for submitting an informed Bid,
execution of the Project in accordance with the Bidding Documents and performance
of all of its obligations thereunder;
(e) acknowledged and agreed that inadequacy, lack of completeness or incorrectness of
information provided in the Bidding Documents or ignorance of any of the matters
referred to in Clause 2.5.1 hereinabove shall not be a basis for any claim for
compensation, damages, extension of time for performance of its obligations, loss of
profits etc. from the Authority, or a ground for termination of the Concession
Agreement by the Concessionaire;
(f) acknowledged that it does not have a Conflict of Interest; and
(g) agreed to be bound by the undertakings provided by it under and in terms hereof.

2.5.3 The Authority shall not be liable for any omission, mistake or error in respect of any of
the above or on account of any matter or thing arising out of or concerning or relating to
RFP, including any error or mistake therein or in any information or data given by the
Authority.

20
2.6 Verification and Disqualification
2.6.1 The Authority reserves the right to verify all statements, information and
documents submitted by the Bidder in response to the RFP and the Bidder shall,
when so required by the Authority, make available all such information, evidence
and documents as may be necessary for such verification. Any such verification, or lack
of such verification, by the Authority shall not relieve the Bidder of its obligations or
liabilities hereunder nor will it affect any rights of the Authority thereunder.

2.6.2 The Authority reserves the right to reject any Bid and appropriate the Bid Security if:
(a) at any time, a material misrepresentation is made or uncovered, or
(b) the Bidder does not provide, within the time specified by the Authority, the
supplemental information sought by the Authority for evaluation of the Bid.

Such misrepresentation/ improper response shall lead to the disqualification of the Bidder.
If the Bidder is a Consortium, then the entire Consortium and each Member of the
Consortium may be disqualified/ rejected. If such disqualification/rejection occurs after
the Bids have been opened and the lowest Bidder gets disqualified / rejected, then the
Authority reserves the right to annul the Bidding Process and invites fresh Bids.

2.6.3 In case it is found during the evaluation or at any time before signing of the
Concession Agreement or after its execution and during the period of subsistence thereof,
including the concession thereby granted by the Authority, that one or more of the
eligibility and /or qualification requirements have not been met by the Bidder, or the
Bidder has made material misrepresentation or has given any materially incorrect or false
information, the Bidder shall be disqualified forthwith if not yet appointed as the
Concessionaire either by issue of the LOA or entering into of the Concession
Agreement, and if the Selected Bidder has already been issued the LOA or the SPV has
entered into the Concession Agreement, as the case may be, the same shall,
notwithstanding anything to the contrary contained therein or in this RFP, be liable to be
terminated, by a communication in writing by the Authority to the Selected Bidder or the
Concessionaire, as the case may be, without the Authority being liable in any manner
whatsoever to the Selected Bidder or the Concessionaire. In such an event, the Authority
shall be entitled to forfeit and appropriate the Bid Security or Performance Security, as
the case may be, as Damages, without prejudice to any other right or remedy that
may be available to the Authority under this RFP, the Bidding Documents, the
Concession Agreement or otherwise..

B. DOCUMENTS
2.7 Contents of the RFP
2.7.1 This RFP comprises the Disclaimer setforth hereinabove, the contents as listed below,
and will additionally include any Addenda issued in accordance with Clause 2.9.

21
 Invitation for BIDs
Section 1. Introduction
Section 2. Instructions to Bidders
Section 3. Evaluation of Bids
Section 4. Fraud and Corrupt Practices
Section 5. Pre-Bid Conference
Section 6. Miscellaneous

Appendices
IA Letter comprising the Technical Bid including Annexure I to V
IB Letter comprising the Financial Bid
II. Bank Guarantee for Bid Security
III. Power of Attorney for signing of Bid
IV. Power of Attorney for Lead Member of Consortium
V. Joint Bidding Agreement for Consortium
VI. Integrity Pact

2.7.2 The draft Agreement and the Feasibility / Detailed Project Report provided by the
Authority as part of the BID Documents shall be deemed to be part of this RFP.

2.8 Clarifications
2.8.1 Bidders requiring any clarification on the RFP may notify the Authority in writing or by
fax and e-mail in accordance with Clause 1.2.10. They should send in their queries before
the date mentioned in the Schedule of Bidding Process specified in Clause 1.3. The
Authority shall endeavour to respond to the queries within the period specified therein,
but no later than 15 (fifteen) days prior to the Bid Due Date. The responses will be sent by
fax or e-mail. The Authority will forward all the queries and its responses thereto, to all
Bidders without identifying the source of queries.

2.8.2 The Authority shall endeavour to respond to the questions raised or clarifications sought
by the Bidders. However, the Authority reserves the right not to 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 the Authority to respond to any question or to provide
any clarification.

2.8.3 The Authority may also on its own motion, if deemed necessary, issue interpretations and
clarifications to all Bidders. All clarifications and interpretations issued by the Authority
shall be deemed to be part of the Bidding Documents. Verbal clarifications and
information given by Authority or its employees or representatives shall not in any way or
manner be binding on the Authority.

2.9 Amendment of RFP

22
2.9.1 At any time prior to the Bid Due Date, the Authority may, for any reason, whether at its
own initiative or in response to clarifications requested by a Bidder, modify the RFP by
the issuance of Addenda.

2.9.2 Any Addendum issued hereunder will be in writing and shall be send to all the Bidders.

2.9.3 In order to afford the Bidders a reasonable time for taking an Addendum into account, or
for any other reason, the Authority may, at its own discretion, extend the Bid Due Date$.

$
While extending the Bid Due Date on account of an addendum, the Authority shall have due regard for the time
required by Bidders to address the amendments specified therein. In the case of significant amendments, at least 15
(fifteen) days shall be provided between the date of amendment and the Bid Due Date, and in the case of minor
amendments, at least 7 (seven) days shall be provided.

23
 C. PREPARATION AND SUBMISSION OF BIDS

2.10 Format and Signing of Bid

2.10.1 The Bidder shall provide all the information sought under this RFP. The Authority will
evaluate only those Bids that are received online in the required formats and complete in
all respects and Bid Security, proof of online payment of cost of bid document, POA and
Joint Bidding Agreement etc. as specified in Clause 2.11.2 of the RFP are received in hard
copies.

2.10.2 The Bid shall be typed and signed in indelible blue ink by the authorised signatory of the
Bidder. All the alterations, omissions, additions or any other amendments made to the Bid
shall be initialled by the person(s) signing the Bid.

2.11 Documents comprising Technical and Financial Bid

2.11.1 The Bidder shall submit the Technical Bid & Financial Bid online through e-procurement
portal [https://nhai.eproc.in] comprising of the following documents along with
supporting documents as appropri
Technical Bid
(a) Appendix-IA (Letter comprising the Technical Bid) including Annexure I to VI and
supporting certificates / documents.

(b) Annexure-IB- (Letter of Declaration of O&M Entity)-In the event that the Bidder
does not have the requisite O&M experience over a period of 5 years immediately
preceeding the Bid Due Date, the concessionaire shall engage experienced and
qualified personnel for discharging its O&M obligations in accordance with the
provisions of the Concession Agreement, failing which the Concession Agreement
shall be liable to termination. The Concessionaire shall declare the name of the
O&M Entity as per Appendix IB.
(c) Power of Attorney for signing the BID as per the format at Appendix-III;
(d) if applicable, Power of Attorney for Lead Member of Consortium as per the format
at Appendix-IV;
(e) if applicable, Joint Bidding Agreement for Consortium as per the format at
Appendix-V
(f) copy of Memorandum and Articles of Association, if the Bidder is a body corporate,
and if a partnership then a copy of its partnership deed;
(g) Copies of Bidders duly audited balance sheet and profit and loss statement for
preceding 5 years.
(h) Integrity Pact as per format given in Appendix VI shall be submitted by the Bidder with
the RFP Bid duly signed by Authorised signatory & shall be part of the Concession
Agreement;

24
 (i) BID Security of Rs **** Crores (Rupees ***** only ) in the form of Bank Guarantee
in the format at Appendix-II from a Scheduled Bank.
(j) Copy of Proof of payment of Rs. ***** towards cost of Bid document.
(k) Proof of payment of tender processing fee of [Rs. 1295/- (Rupees one thousand two
hundred and ninety five only)];
(l) An undertaking from the person having PoA referred to in Sub. Clause-(b) above that
they agree and abide by the Bid documents uploaded by NHAI and amendments
uploaded, if any.

Financial Bid
(m) Appendix-IB (Letter comprising the Financial Bid)

2.11.2 The Bidder shall submit the following documents physically:

(a) Original Power of Attorney for signing the Bid as per format at Appendix-III;
(b) if applicable, Original Power of Attorney for Lead Member of Consortium as per the
format at Appendix-IV;
(c) if applicable, Original Joint Bidding Agreement for Consortium as per the format at
Appendix-V
(d) Bid Security of Rs **** Crores (Rupees ****** only) in the form of Original Damand
Draft or Original Bank Guarantee in the format at Appendix-II from a Scheduled
Bank.
(e) Copy of Proof of Payment of online payment of Cost of Tender Document of Rs. ***.
(f) Integrity pact on plain paper shall be submitted by the Bidder with the RFP Bid duly
signed by Authorized signatory & shall be part of the Concession Agreement;
(g) Proof of payment of tender processing fee of [Rs. 1295/- (Rupees one thousand two
hundred and ninety five only)];
(h) An undertaking from the person having PoA referred to in Sub. Clause-(a) above that
they agree and abide by the Bid documents uploaded by NHAI and amendments
uploaded, if any.
(i) Original Statement of Legal Capacity as per format at Annexure IV to Appendix I.

2.11.3 The documents listed at clause 2.11.2 shall be placed in an envelope, which shall be
sealed. The envelope shall clearly bear the identification BID for the *****on Toll
Operate Transfer (TOT) Mode Project and shall clearly indicate the name and address of
the Bidder. In addition, the Bid Due Date should be indicated on the right hand top
corner of the envelope.

2.11.4 The envelope shall be addressed to one of the following officer and shall be submitted at the
respective address:
ATTN. OF: ******
DESIGNATION ******

Appendix IB shall be uploaded in a separate folder along with the financial quotation.
25
 ADDRESS: ******
******
FAX NO: ******
E-MAIL ADDRESS ******

2.11.5 If the envelopes is not sealed and marked as instructed above, the Authority
assumes no responsibility for the misplacement or premature opening of the
contents of the Bid submitted and consequent losses, if any, suffered by the
Bidder.

2.11.6 Bids submitted by fax, telex, telegram or e-mail shall not be entertained and shall
be summarily rejected.

2.12 Bid Due Date

Technical & Financial Bid comprising of the documents listed at clause 2.11.1 of
the RFP shall be submitted online through e-procurement portal [https://nhai.eproc.in]
on or before ***** hrs IST on ****** Documents listed at clause 2.11.2 of the RFP
shall be physically submitted on or before **** hours IST on ***** at the address
provided in Clause 2.11.4 in the manner and form as detailed in this RFP. A receipt thereof
should be obtained from the person specified at Clause 2.11.4.
2.13 Late Bids
E-procurement portal [https://nhai.eproc.in] shall not allow submission of any Bid after
the prescribed date and time at Clause 2.12. Physical receipt of documents listed at
Clause 2.11.2 of the RFP after the prescribed date and time at Clause 2.12 shall not be
considered and the bid shall be summarily rejected.

2.14 Procedure for e-tendering

2.14.1 Accessing/ Purchasing of Bid documents
2.14.1.1 It is mandatory for all the Bidders to have class-III Digital Signature Certificate (DSC)
(in the name of Authorized Signatory / Firm or Organization / Owner of the Firm or
organisation) from any of the licensed Certifying Agency (Bidders can see the list of
licensed CAs from the link www.cca.gov.in) to participate in e-tendering of the
Authority.
DSC should be in the name of the authorized signatory as authorized in Appendix III of
this RFP. It should be in corporate capacity (that is in Bidder capacity / in case of
Consortium in the Lead Member capacity, as applicable). The Bidder shall submit
document in support of the class III DSC.
The Authorized Signatory holding Power of Attorney shall only be the Digital
Signatory. In case Authorized Signatory holding Power of Attorney and Digital
Signatory are not the same, the BID shall be considered non responsive.

2.14.1.2 To participate in the bidding, it is mandatory for the Bidders to get registered their firm
/ Consortium with e-procurement portal of The Authority [https://nhai.eproc.in] to
26
 have user ID & password which has to be obtained by submitting an annual registration
charges of Rs. INR 2247/- (Rupees two thousand two hundred forty seven only)
(Inclusive of all taxes) to the e-tendering service provider i.e. M/s C1 India Pvt. Ltd.
through their e-payment gateway. Validity of online registration is one year. Following
may kindly be noted:
a) Registration with e-procurement portal of the Authority should be valid at least up
to the date of submission of Bid.
b) Bids can be submitted only during the validity of registration.

2.14.1.3 If the firm / Consortium is already registered with e-tendering service provider of the
Authority, and validity of registration is not expired the firm / Consortium is not
required a fresh registration.

2.14.1.4 The complete Bid document can be viewed / downloaded by the Bidder from e-
procurement portal of the Authority [https://nhai.eproc.in] from ***** to ***** (upto
*** Hrs. IST).

2.14.1.5 To participate in e- bidding, Bidders have to pay [Rs 1,295/- (Rupees one thousand two
hundred ninety five only)] non-refundable for e-procurement service to e-tendering
service provider i.e. M/s C1 India Pvt. Ltd. against tender processing fee through
online payment only..

2.14.2 Preparation & Submission of Bids:

2.14.2.1 The Bidder may submit his Bid online following the instruction appearing on the
screen. A buyer manual containing the detailed guidelines for e-procurement is also
available on e-procurement portal of the Authority.

2.14.2.2 The documents listed at clause 2.11.1 shall be prepared and scanned in different files
(in PDF or JPEG format such that file size is not more than 5 MB) and uploaded during
the on-line submission of BID.

2.14.2.3 Bid must be submitted online only through e-procurement portal of the Authority
[https://nhai.eproc.in] using the digital signature of authorised representative of the
Bidder on or before ****** (upto *** hours IST).

2.14.3 Modifications/ Substitution/ withdrawal of Bids

2.14.3.1 The Bidder may modify, substitute or withdraw its e- Bid after submission prior to the
Bid Due Date. No Bid can be modified, substituted or withdrawn by the Bidder on or
after the Bid Due Date & Time.

2.14.3.2 For modification of e-Bid, Bidder has to detach its old Bid from e-procurement portal
and upload / resubmit digitally signed modified Bid. For withdrawal of Bid, bidder has
to click on withdrawal icon at e-procurement portal and can withdraw its e-Bid. Before
27
 withdrawal of a Bid, it may specifically be noted that after withdrawal of a Bid for any
reason, Bidder cannot re-submit e-Bid again.

2.15 Online Opening of Bids.

2.15.1 Opening of Bids will be done through online process.

2.15.2 The Authority shall on-line open Technical Bids on ****** at **** hours IST, in the
presence of the authorized representatives of the Bidders, who choose to attend. Technical
Bid of only those bidders shall be online opened whose documents listed at clause
2.11.2 of the RFP have been physically received. The MoRT&H / NHAI will
subsequently examine and evaluate the Bids in accordance with the provisions of Section
3 of RFP.

2.16 Rejection of Bids

2.16.1 Notwithstanding anything contained in this RFP, the Authority reserves the right to reject
any Bid and to annul the Bidding Process and reject all Bids at any time without any
liability or any obligation for such acceptance, rejection or annulment, and
without assigning any reasons therefor. In the event that the Authority rejects or
annuls all the Bids, it may, in its discretion, invite all eligible Bidders to submit fresh Bids
hereunder.

2.16.2 The Authority reserves the right not to proceed with the Bidding Process at any time,
without notice or liability, and to reject any Bid without assigning any reasons.

2.17 Validity of Bids

The Bids shall be valid for a period of not less than 120 (one hundred and twenty) days
from the Bid Due Date. The validity of Bids may be extended by mutual consent of the
respective Bidders and the Authority.

2.18 Confidentiality
Information relating to the examination, clarification, evaluation and recommendation
for the Bidders shall not be disclosed to any person who is not officially concerned with
the process or is not a retained professional advisor advising the Authority in relation
to, or matters arising out of, or concerning the Bidding Process. The Authority will treat all
information, submitted as part of the Bid, in confidence and will require all those who
have access to such material to treat the same in confidence. The Authority may not divulge
any such information unless it is directed to do so by any statutory entity that has the
power under law to require its disclosure or is to enforce or assert any right or
privilege of the statutory entity and/ or the Authority or as may be required by law
or in connection with any legal process.

2.19 Correspondence with the Bidder

Save and except as provided in this RFP, the Authority shall not entertain any
28
correspondence with any Bidder in relation to acceptance or rejection of any Bid.

29
 D. BID SECURITY
2.20 Bid Security
2.20.1 The Bidder shall furnish as part of its Bid, a Bid Security referred to in Clauses 2.1.6
and 2.1.7 hereinabove in the form of a bank guarantee issued by nationalised bank,
or a Scheduled Bank in India having a net worth of at least Rs. 1,000 crore (Rs. one
thousand crore), in favour of the Authority in the format at Appendix-II (the Bank
Guarantee) and having a validity period of not less than 120 (one hundred twenty)
days from the Bid Due Date and a claim period of 120 (sixty) days, and may be
extended as may be mutually agreed between the Authority and the Bidder from
time to time. In case the Bank Guarantee is issued by a foreign bank outside India,
confirmation of the same by any nationalised bank in India is required. For the avoidance
of doubt, Scheduled Bank shall mean a bank as defined under Section 2(e) of the
Reserve Bank of India Act, 1934.

2.20.2 Bid Security can also be in the form of a demand draft issued by a Scheduled Bank in India,
drawn in favour of the Authority and payable at Delhi (the Demand Draft). The
Authority shall not be liable to pay any interest on the Bid Security deposit so made and the
same shall be interest free.

2.20.3 Any Bid not accompanied by the Bid Security shall be summarily rejected by the
Authority as non-responsive.

2.20.4 Save and except as provided in Clauses 1.2.4 and 1.2.5 above, the Bid Security of
unsuccessful Bidders will be returned by the Authority, without any interest, as promptly as
possible on acceptance of the Bid of the Selected Bidder or when the Bidding process is
cancelled by the Authority, and in any case within 60 (sixty) days from the Bid Due Date.
Where Bid Security has been paid by Demand Draft, the refund thereof shall be in the form
of an account payee demand draft in favour of the unsuccessful Bidder(s). Bidders may by
specific instructions in writing to the Authority give the name and address of the person in
whose favour the said demand draft shall be drawn by the Authority for refund, failing which
it shall be drawn in the name of the Bidder and shall be mailed to the address given on the
Bid.

2.20.5 The Selected Bidders Bid Security will be returned, without any interest, upon the
bidder signing the Contract Agreement and furnishing the Performance Security in
accordance with the provisions thereof. The Authority may, at the Selected Bidders
option, adjust the amount of Bid Security in the amount of Performance Security to be
provided by him in accordance with the provisions of the Agreement.

2.20.6 The Authority shall be entitled to forfeit and appropriate the Bid Security as
Damages inter alia in any of the events specified in Clause 2.20.7 herein below.
The Bidder, by submitting its Bid pursuant to this RFP, shall be deemed to have
acknowledged and confirmed that the Authority will suffer loss and damage on
30
 account of withdrawal of its Bid or for any other default by the Bidder during the
period of Bid validity as specified in this RFP. No relaxation of any kind on Bid
Security shall be given to any Bidder.

2.20.7 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 Bidding Documents
and/or under the Concession Agreement, or otherwise, under the following
conditions:

a) If a Bidder submits a non-responsive Bid;

Subject however that in the event of encashment of bid security occurring due to
operation of para 2.20.7 (a), the damage so claimed by the Authority shall be
restricted to 5% of the value of the bid security.

b) If a Bidder engages in a corrupt practice, fraudulent practice, coercive practice,

undesirable practice or restrictive practice as specified in Clause 4 of this RFP;

c) If a Bidder withdraws its Bid during the period of Bid validity as specified in this
RFP and as extended by mutual consent of the respective Bidder(s) and the
Authority;

d) In the case of Selected Bidder, if it fails within the specified time limit

i) to sign and return the duplicate copy of LOA;

ii) to sign the Concession Agreement; or
iii) to furnish the Performance Security within the period prescribed therefore in
the Concession Agreement; or

In case the Selected Bidder, having signed the Concession Agreement, commits any
breach thereof prior to furnishing the Performance Security.

31
 SECTION-3
EVALUATION OF TECHNICAL BIDS AND OPENING &
EVALUATION OF FINANCIAL BIDS

3.1 Opening and Evaluation of Technical Bids

3.1.1 The Authority shall open the Technical Bids received physically & online at ****
hours IST on ******, at the place specified in Clause 2.11.4 and in the presence
of the Bidders who choose to attend.

3.1.2 The Authority will subsequently examine and evaluate the Bids in accordance with
the provisions set out in this Section 3.

3.1.3 To facilitate evaluation of Bids, the Authority may, at its sole discretion, seek
clarifications in writing from any Bidder regarding its Bid.

3.2 Tests of responsiveness

3.2.1 As a first step towards evaluation of Technical Bids, the Authority shall
determine whether each Technical Bid is responsive to the requirements of this
RFP. A Technical Bid shall be considered responsive only if:

(a) Technical Bid is received online as per the format at Appendix-IA including
Annexure I to V ;;
(b) Documents listed at clause 2.11.2 are received physically;
(c) Technical Bid is accompanied by the Bid Security as specified in Clause 2.1.6
and 2.1.7;
(d) Technical Bid is accompanied by the Power of Attorney as specified in
Clauses 2.1.8;
(e) Technical Bid is accompanied by Power of Attorney for Lead Member of
Consortium and the Joint Bidding Agreement as specified in Clause 2.1.9, if
so required;
(f) Technical Bid contain all the information (complete in all respects);
(g) Technical Bid does not contain any condition or qualification;
(h) Integrity Pact as per format given in Appendix VI has been submitted by the
Bidder with the RFP Bid duly signed by Authorised signatory;
(i) Technical Bid contains proof of online payment of Rs. ********/-towards cost
of Bid document
(j) it is not non-responsive in terms hereof.

3.2.2 The Authority reserves the right to reject any Technical Bid which is non-
responsive and no request for alteration, modification, substitution or withdrawal
shall be entertained by the Authority in respect of such Bid.

32
3.3 Evaluation parameters

3.3.1 Only those Bidders who meet the eligibility criteria specified in Clause 2.2.2
above shall qualify for evaluation under this Section 3. Bids of firms/ consortia
who do not meet these criteria shall be rejected.

3.3.2 The Bidders competence and capability is proposed to be established by the

following parameters:
(a) Technical Capacity; and
(b) Financial Capacity

3.4 Details of Experience

3.4.1 The Bidder should furnish the details of either itself or its O&M Entity Partners
Eligible Experience for the last 5 (five) financial years immediately preceding the
Bid Due Date as per Annex III .

3.5 Financial information for purposes of evaluation

3.5.1 The Bids must be accompanied by the Audited Annual Reports of the Bidder (of
each Member in case of a Consortium) for the last 5 (five) financial years,
preceding the year in which the Bid is made.

3.5.2 In case the annual accounts for the latest financial year are not audited and
therefore the Bidder cannot make it available, the Bidder shall give an undertaking
to this effect and the statutory auditor shall certify the same. In such a case, the
Bidder shall provide the Audited Annual Reports for 5 (five) years preceding the
year for which the Audited Annual Report is not being provided.

3.5.3 The Bidder must establish the minimum Net Worth specified in Clause 2.2.2 (B),
and provide details as per format at Annex-II of Appendix-I.

3.5.4 In case of foreign companies, a certificate from a qualified external auditor who
audits the book of accounts of the Bidder or the Consortium Member in the
formats provided in the country where the project has been executed shall be
accepted, provided it contains all the information as required in the prescribed
format of the RFP.
3.5.5 In the event that a Bidder claims credit for an Eligible Project, and such claim is
determined by the Authority as incorrect or erroneous, the Authority may reject /
correct such claim for the purpose of qualification requirements.

33
 (i) The Authority will get the BID security verified from the issuing authority
and after due verification, the Authority will evaluate the Technical BIDs
for their compliance to the eligibility and qualification requirements
pursuant to clause 2.2.1 & 2.2.2 of this RFP.

(ii) After evaluation of Technical Bids, the Authority will publish a list of
Technically responsive Bidders whose financial bids shall be opened. The
Authority shall notify other bidders that they have not been technically
responsive. The Authority will not entertain any query or clarification from
Bidders who fail to qualify.

3.6 Opening and Evaluation of Financial Bids

The Authority shall inform the venue and time of online opening of the Financial
Bids to the Technically responsive Bidders through e-procurement portal of
MoRT&H /NHAI and e-mail. The Authority shall online open the Financial
Bids on date and time to be informed in this clause in the presence of the
authorised representatives of the Bidders who may choose to attend. The
Authority shall publically announce the Bid Concession Fee quoted by the
technically responsive Bidder. The Authority shall prepare a record of opening
of Financial Bids.

3.7 Selection of Bidder

3.7.1 Subject to the provisions of Clause 2.16.1, the Bidder whose Bid is adjudged
as responsive in terms of Clause 3.2 and who quotes lowest Bid Concession
Fee shall be declared as the selected Bidder (the Selected Bidder).

3.7.2 In the event that two or more Bidders quote the same Bid Concession Fee
(the "Tie Bids"), the Authority shall identify the Selected Bidder by draw of
lots, which shall be conducted, with prior notice, in the presence of the Tie
Bidders who choose to attend.
3.7.3 In the event that the Lowest Bidder is not selected for any reason, the
Authority shall annul the Bidding Process and invite fresh Bids. In the event
that the Authority rejects or annuls all the Bids, it may, in its discretion, invite
all eligible Bidders to submit fresh Bids hereunder.

3.7.4 After selection, a Letter of Award (the LOA) shall be issued, in duplicate,
by the Authority to the Selected Bidder and the Selected Bidder 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 Bidder is not received by
the stipulated date, the Authority may, unless it consents to extension of
time for submission thereof, appropriate the Bid Security of such Bidder as

34
 Damages on account of failure of the Selected Bidder to acknowledge the
LOA.

3.7.5 After acknowledgement of the LOA as aforesaid by the Selected Bidder, it

shall cause the Bidder to execute the Agreement within the period prescribed
in Clause 1.3. The Selected Bidder shall not be entitled to seek any
deviation, modification or amendment in the Agreement.

3.8 Contacts during Bid Evaluation

Bids shall be deemed to be under consideration immediately after they are
opened and until such time the Authority makes official intimation of award/
rejection to the Bidders. While the Bids are under consideration, Bidders
and/ or their representatives or other interested parties are advised to refrain,
save and except as required under the Bidding Documents, from
contacting by any means, the Authority and/ or their employees/
representatives on matters related to the Bids under consideration.

3.9 Correspondence with Bidder

Save and except as provided in this RFP, the Authority shall not entertain any
correspondence with any Bidder in relation to the acceptance or rejection of any
Bid.

3.10 Any information contained in the Bid shall not in any way be construed as
binding on the Authority, its agents, successors or assigns, but shall be binding
against the Bidder if the Project is subsequently awarded to it on the basis of
such information.

3.11 The Authority reserves the right not to proceed with the Bidding Process at any
time without notice or liability and to reject any or all Bid(s) without assigning
any reasons.

35
 SECTION-4
4. FRAUD AND CORRUPT PRACTICES
4.1 The Bidders and their respective officers, employees, agents and advisers
shall observe the highest standard of ethics during the Bidding Process and
subsequent to the issue of the LOA and during the subsistence of the
Agreement. Notwithstanding anything to the contrary contained herein, or in the
LOA or the Agreement, the Authority may reject a Bid, withdraw the LOA, or
terminate the Agreement, as the case may be, without being liable in any
manner whatsoever to the Bidder, if it determines that the Bidder, directly or
indirectly or through an agent, engaged in corrupt practice, fraudulent
practice, coercive practice, undesirable practice or restrictive practice in the
Bidding Process. In such an event, the Authority shall be entitled to forfeit and
appropriate the Bid Security or Performance Security, as the case may be,
as Damages, without prejudice to any other right or remedy that may be
available to the Authority under the Bidding Documents and/ or the
Agreement, or otherwise.

4.2 Without prejudice to the rights of the Authority under Clause 4.1 hereinabove
and the rights and remedies which the Authority may have under the LOA
or the Agreement, or otherwise if a Bidder or Contractor, as the case may be,
is found by the Authority to have directly or indirectly or through an agent,
engaged or indulged in any corrupt practice, fraudulent practice, coercive
practice, undesirable practice or restrictive practice during the Bidding Process,
or after the issue of the LOA or the execution of the Agreement, such Bidder
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 Bidder, or Contractor, as the
case may be, is found by the Authority to have directly or indirectly or through
an agent, engaged or indulged in any corrupt practice, fraudulent practice,
coercive practice, undesirable practice or restrictive practices, as the case may be.

4.3 For the purposes of this Section 4, the following terms shall have the meaning
hereinafter respectively assigned to them:

(j) corrupt practice means (i) the offering, giving, receiving, or soliciting,
directly or indirectly, of anything of value to influence the actions of any
person connected with the Bidding 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 Bidding
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 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

36
 constitute influencing the actions of a person connected with the Bidding
Process); or (ii) save and except as permitted under the Clause 2.2.1(d) of
this RFP, engaging in any manner whatsoever, whether during the Bidding
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 Contract 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;

(k) fraudulent practice means a misrepresentation or omission of facts or

suppression of facts or disclosure of incomplete facts;

(c) coercive practice means impairing or harming, or threatening to impair or

harm, directly or indirectly, any person or property to influence any
persons participation or action in the Bidding 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 Bidding Process; or (ii) having a Conflict of
Interest; and

(e) restrictive practice means forming a cartel or arriving at any

understanding or arrangement among Bidders with the objective of
restricting or manipulating a full and fair competition in the Bidding
Process.

4.4 Bidder shall comply with the provisions of office Memorandum No.
13030/09/2008-vig dated 28.01.2013 issued by NHAI i.e. Model Agreement for
Integrity Pact (IP) as per format given in Appendix VI shall be submitted by the
Bidder along with the RFP Bid duly signed by Authorised signatory & shall be
part of the Concession Agreement.

37
 SECTION-5
5. PRE-BID CONFERENCE

5.1 Pre-Bid conference of the Bidders shall be convened at the designated date,
time and place. A maximum of two representatives of prospective
Bidders shall be allowed to participate on production of authority letter
from the Bidder.

5.2 During the course of Pre-Bid conference(s), the Bidders will be free to
seek clarifications and make suggestions for consideration of the Authority.
The Authority shall endeavour to provide clarifications and such further
information as it may, in its sole discretion, consider appropriate for
facilitating a fair, transparent and competitive Bidding Process.

38
 SECTION-6

6. MISCELLANEOUS

6.1 The Bidding Process shall be governed by, and construed in accordance with, the laws of
India and the Courts at [New Delhi] shall have exclusive jurisdiction over all disputes
arising under, pursuant to and/ or in connection with the Bidding Process.

6.2 The Authority, in its sole discretion and without incurring any obligation or liability,
reserves the right, at any time, to;
(a) suspend and/ or cancel the Bidding Process and/ or amend and/ or
supplement the Bidding Process or modify the dates or other terms and
conditions relating thereto;
(b) consult with any Bidder 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 Bidder; 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 Bidder.

6.3 It shall be deemed that by submitting the Bid, the Bidder 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 with
the Bidding Process and waives, to the fullest extent permitted by applicable laws, any
and all rights and/ or claims it may have in this respect, whether actual or contingent,
whether present or in future.

39
 APPENDIX IA
LETTER COMPRISING THE TECHNICAL BID
(Refer Clause 2.1.5, 2.11 and 3.2)
The *************
[National Highways Authority of India
G-5&6, Sector 10, Dwarka,
New Delhi - 110 075]

Sub: BID for ************on Toll Operate Transfer (TOT) Mode

Dear Sir,

1. With reference to your RFP document dated ..$, I/we, having examined the RFP
document and understood its contents, hereby submit my/our Bid for the aforesaid project.
The Bid is unconditional and unqualified.

2. I/ We acknowledge that the Authority will be relying on the information provided in the Bid
and the documents accompanying such Bid for selection of the Concessionaire for the
aforesaid project, and we certify that all information provided in the Bid and in Annexes I to
V is true and correct; nothing has been omitted which renders such information misleading;
and all documents accompanying such Bid are true copies of their respective originals.

3. This statement is made for the express purpose of our selection as a Concessionaire for the
Tolling Operation and Maintenance of the aforesaid Project.

4. I/ We shall make available to the Authority any additional information it may find necessary
or require to supplement or authenticate the Bid.

5. I/ We acknowledge the right of the Authority to reject our Bid without assigning any reason
or otherwise and hereby waive, to the fullest extent permitted by applicable law, our right to
challenge the same on any account whatsoever.

6. I/ We certify that in the last three years, we/ any of the Consortium Members or our/ their
Associates have neither failed to perform on any contract, as evidenced by imposition of a
penalty by an arbitral or judicial authority or a judicial pronouncement or arbitration award,
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.

7. I/ We declare that:

(a) I/ We have examined and have no reservations to the RFP document, including any
Addendum issued by the Authority.

$
All blank spaces shall be suitably filled up by the Bidder to reflect the particulars relating to such Bidder.
40
 (b) I/ We do not have any conflict of interest in accordance with Clauses 2.2.1(c) and
2.2.1(d) of the RFP document; and

(c) I/We have not directly or indirectly or through an agent engaged or indulged in any
corrupt practice, fraudulent practice, coercive practice, undesirable practice or
restrictive practice, as defined in Clause 4.3 of the RFP document, in respect of any
tender or request for proposal issued by or any agreement entered into with the
Authority or any other public sector enterprise or any government, Central or State;
and

(d) I/ We hereby certify that we have taken steps to ensure that in conformity with the
provisions of Section 4 of the RFP document, no person acting for us or on our
behalf has engaged or will engage in any corrupt practice, fraudulent practice,
coercive practice, undesirable practice or restrictive practice.

8. I/ We understand that you may cancel the Bidding Process at any time and that you are
neither bound to accept any Bid that you may receive nor to invite the Bidders to Bid for the
Project, without incurring any liability to the Bidders, in accordance with Clause 2.16.2 of
the RFP document.

9. I/ We believe that we/ our Consortium/ proposed Consortium satisfy (ies) the Net Worth
criteria and meet(s) all the requirements as specified in the RFP document.

10. I/ We declare that we/ any Member of the Consortium, or our/ its Associates are not a
Member of a/ any other Consortium submitting a Bid for this Project.

11. I/ We certify that in regard to matters other than security and integrity of the country, we/
any Member of the Consortium or any of our/ their Associates have not been convicted by a
Court of Law or indicted or adverse orders passed by a regulatory authority which could
cast a doubt on our ability to undertake the Project or which relates to a grave offence that
outrages the moral sense of the community.

12. I/ We further certify that in regard to matters relating to security and integrity of the
country, we/ any Member of the Consortium or any of our/ their Associates have not been
charge-sheeted by any agency of the Government or convicted by a Court of Law.

13. I/ We further certify that no investigation by a regulatory authority is pending either against
us/ any Member of the Consortium or against our/ their Associates or against our CEO or
any of our directors/ managers/ employees.

14. I/ We further certify that we are qualified to submit a Bid in accordance with the guidelines
for qualification of bidders seeking to acquire stakes in Public Sector Enterprises through

41
 the process of disinvestment issued by the GOI vide Department of Disinvestment OM No.
6/4/2001-DD-II dated 13th July, 2001 which guidelines apply mutatis mutandis to the
Bidding Process. A copy of the aforesaid guidelines form part of the RFP at Appendix-VI
thereof.

15. I/ We undertake that in case due to any change in facts or circumstances during the Bidding
Process, we are attracted by the provisions of disqualification in terms of the provisions of
this RFP, we shall intimate the Authority of the same immediately.

(a) The Statement of Legal Capacity as per format provided at Annex-IV in Appendix-IA
of the RFP document, and duly signed, is enclosed. The Power Of Attorney For Signing
of Bid and the Power Of Attorney For Lead Member of Consortium, as per format
provided at Appendix III and IV respectively of the RFP, are also enclosed.

(b) I/We hereby confirm that we [are in compliance of/ shall comply with] the O&M
requirements specified in Clause 2.2.3.

16. I/We acknowledge and undertake that our Consortium is qualified on the basis of Technical
Capacity and Financial Capacity of those of its Members who shall, for the period of 2
(two) years from the date of commercial operation of the project, hold equity share capital
not less than: (i) 26% (twenty six percent) of the subscribed and paid up equity of the
Concessionaire; and (ii) 5% (five percent) of the total project cost specified in the
Concession Agreement. We further agree and acknowledge that the aforesaid obligation
shall be in addition to the obligations contained in the Concession Agreement in respect of
Change in Ownership.

17. I/We acknowledge and agree that in the event of a change in control of an Associate whose
Technical Capacity and/ or Financial Capacity shall be taken into consideration for the
purposes of selection as Concessionaire under and in accordance with the RFP, I/We shall
inform the Authority forthwith along with all relevant particulars and the Authority may, in
its sole discretion, disqualify our Consortium or withdraw the Letter of Award, as the case
may be. I/We further acknowledge and agree that in the event such change in control occurs
after signing of the Concession Agreement but prior to Financial Close of the Project, it
would, notwithstanding anything to the contrary contained in the Agreement, be deemed a
breach thereof, and the Concession Agreement shall be liable to be terminated without the
Authority being liable to us in any manner whatsoever.

18. I/ We understand that the Selected Bidder shall either be an existing Company incorporated
under the Indian Companies Act, 1956/2013, or shall incorporate as such prior to execution
of the Concession Agreement.

19. I/We hereby irrevocably waive any right or remedy which we may have at any stage at law
or howsoever otherwise arising to challenge or question any decision taken by the Authority

42
 in connection with the selection of the Bidder, or in connection with the Bidding Process
itself, in respect of the above mentioned Project and the terms and implementation thereof.

20. In the event of my/ our being declared as the Selected Bidder, I/We agree to enter into a
Concession Agreement in accordance with the draft that has been provided to me/us prior to
the Bid Due Date. We agree not to seek any changes in the aforesaid draft and agree to
abide by the same.

21. I/We have studied all the Bidding Documents carefully and also surveyed the project
highway and the traffic. We understand that except to the extent as expressly setforth in the
Concession Agreement, we shall have no claim, right or title arising out of any documents
or information provided to us by the Authority or in respect of any matter arising out of or
relating to the Bidding Process including the award of Concession.

22. I/We offer a Bid Security of Rs. **** (Rupees ***** only) to the Authority in accordance
with the RFP Document.

23. The Bid Security in the form of a Demand Draft/ Bank Guarantee (strikeout whichever is
not applicable) is attached.

24. The documents accompanying the Technical Bid, as specified in Clause 2.11.2 of the RFP,
have been submitted in a separate envelope and marked as Enclosures of the Bid.

25. I/We agree and understand that the Bid is subject to the provisions of the Bidding
Documents. In no case, I/We shall have any claim or right of whatsoever nature if the
Project / Concession is not awarded to me/us or our Bid is not opened or rejected.

26. The Bid Concession Fee has been quoted by me/us after taking into consideration all the
terms and conditions stated in the RFP, draft Concession Agreement, our own estimates of
traffic and after a careful assessment of the site, the As-Built Road Asset and all the
conditions that may have a bearing on the project.

27. I/ We agree and undertake to abide by all the terms and conditions of the RFP document.

28. {We, the Consortium Members agree and undertake to be jointly and severally liable for all
the obligations of the Concessionaire under the Concession Agreement till occurrence
of Financial Close in accordance with the Concession Agreement.}

29. I/ We certify that in terms of the RFP, my/our Net worth/ Asset Under Management is Rs.
.. (Rs. in words).

43
30. I/We shall keep this offer valid for 120(One hundred and twenty) days from the Bid Due
Date specified in the RFP.

31. I/ We hereby submit our Bid and offer a Bid Concession Fee as indicated in Financial Bid
for undertaking the aforesaid Project in accordance with the Bidding Documents and the
Concession Agreement

32

(c) It is also agreed that any change in the name (s) of the O&M entity would with be
prior consent of the Authority. We agree that the Authority shall grant such permission only
and only if the substitute proposed is of the required technical capability as applicable.

In witness thereof, I/we submit this Bid under and in accordance with the terms of the RFP
document.

Yours faithfully,

Date:
(Signature of the Authorised signatory)
Place:
(Name and designation of the of the Authorised signatory)
Name and seal of Bidder/Lead Member

Note: Paragraphs in curly parenthesis may be omitted by the Bidders, if not applicable to it,
ormodified as necessary to reflect Bidder-specific particulars.

44
 APPENDIX IB

Declaration of O&M Entity

The *************
[National Highways Authority of India
G-5&6, Sector 10, Dwarka,
New Delhi - 110 075]

Sub: Declaration of O&M Entity to undertake O&M of Project Name on Toll Operate Transfer
(TOT) Mode

Dear Sir,

We wish to confirm that our O&M Entity for the subject project is . We certify that our
selection did take into consideration the stipulated technical criteria of having executed the
operation and maintenance of at least 5 projects which have a Total Project Cost of above
crores in the last five years. The Project Details and the supporting documents are
specified in Annexure III.

Yours faithfully,

Date:
(Signature of the Authorised signatory)
Place:
(Name and designation of the of the Authorised signatory)
Name and seal of Bidder/Lead Member

45
 APPENDIX IC
Letter comprising the Financial BID
(Refer Clauses 2.1.5, 2.11.1 and 3.2)
(NOT TO BE SUBMITTED IN THE TECHINCAL BID)

The **********
[National Highways Authority of India
G-5&6, Sector 10, Dwarka,
New Delhi - 110 075] Dated:

Sub: BID for *************on Toll Operate and Transfer (TOT) Mode Project

Dear Sir,

With reference to your RFP document dated *** **$, I/we, having examined the Bidding
Documents and understood their contents, hereby submit my/our Bid for the aforesaid Project.
The Bid is unconditional and unqualified.

2. I/ We acknowledge that the Authority will be relying on the information provided

in the Bid and the documents accompanying the Bid for selection of the
Concessionaire for the aforesaid Project, and we certify that all information provided in
the Bid are true and correct; nothing has been omitted which renders such information
misleading; and all documents accompanying the Bid are true copies of their respective
originals.

3. The Bid Concession Fee has been quoted by me/us after taking into consideration
all the terms and conditions stated in the RFP, Draft Concession Agreement and its
Schedules, our own estimates of costs and after a careful assessment of the site, project
assets, traffic and all own the conditions that may affect and the implementation of the
project.

4. I/ We acknowledge the right of the Authority to reject our Bid without assigning
any reason or otherwise and hereby waive, to the fullest extent permitted by
applicable law, our right to challenge the same on any account whatsoever.

5. In the event of my/ our being declared as the Selected Bidder, I/we agree to enter into a
Concession Agreement in accordance with the draft that has been provided to me/us prior to
the Bid Due Date. We agree not to seek any changes in the aforesaid draft and agree to
abide by the same.

6. I/ We shall keep this offer valid for 120 (one hundred and twenty) days from the Bid Due
Date specified in the RFP.

46
7. I/ We hereby submit our Bid and offer a Bid Concession Fee of Rs. ......................................
(Rs................................................................................................. in words) for undertaking
the aforesaid Project in accordance with the Bidding Documents and the Concession
Agreement.

Yours faithfully,

Date: (Signature, name and designation of the

Place: Authorised Signatory )
Name & seal of Bidder/Lead Member:..........
Class III DSC ID of Authorised Signatory :.............

47
 Appendix IA
Annex-I
Details of Bidder

(a) Name:
(b) Country of incorporation:
(c) Address of the corporate headquarters and its branch office(s), if any, in India:
(d) Date of incorporation and/ or commencement of business:

2. Brief description of the Company including details of its main lines of business and
proposed role and responsibilities in this Project:

3. Details of individual(s) who will serve as the point of contact/ communication for
the Authority:
(a) Name:
(b) Designation:
(c) Company:
(d) Address:
(e) Telephone Number:
(f) E-Mail Address:
(g) Fax Number:

4. Particulars of the Authorised Signatory of the Bidder:

(a) Name:
(b) Designation:
(c) Address:
(d) Phone Number:
(e) Fax Number:

5. In case of a Consortium:
(a) The information above (1-4) should be provided for all the Members of the
Consortium.
(b) A copy of the Joint Bidding Agreement, as envisaged in Clause 2.1.15 (g) should be
attached to the Application.
(c) Information regarding the role of each Member should be provided as per table
below:

48
 Appendix I
Annex-I

Sl. Name of Member Role* Percentage of equity in the

No. {Refer Clause Consortium{Refer Clauses
2.1.15(d)}$ 2.1.15(a), (c) & (g)}
1.
2.
3.
4.
* The role of each Member, as may be determined by the Bidder, should be indicated in
accordance with instruction 4 at Annex-III.

(d) The following information shall also be provided for each Member of the
Consortium:
Name of Bidder/ member of Consortium:
No. Criteria Yes No
1. Has the Bidder/ constituent of the Consortium been
barred by the Central/ State Government, or any entity
controlled by it, from participating in any project (BOT or
otherwise).
2. If the answer to 1 is yes, does the bar subsist as on the date
of Bid
3. Has the Bidder/ constituent of the Consortium paid
liquidated damages of more than 5% of the contract value
in a contract due to delay or has been penalised due to any
other reason in relation to execution of a contract, in the
last three years?
6. A statement by the Bidder and each of the Members of its Consortium (where applicable)
or any of their Associates disclosing material non-performance or contractual non-
compliance in past projects, contractual disputes and litigation/ arbitration in the recent
past is given below (Attach extra sheets, if necessary):

$
All provisions contained in curly parenthesis shall be suitably modified by the Bidder to reflect the particulars
relating to such Bidder.

or has been declared by the Authority as non performer/blacklisted.

49
 Appendix IA
Annex-II
ANNEX-II
Financial Capacity of the Bidder
(Refer to Clauses 2.2.2(B), 2.2.3 (ii) and 3.5 of the RFP)

(In Rs. crore$$)

Bidder type Memb Proposed Equity Net Worth/Asset Under Management10
$
er Shareholding in
Code Consortium (%)
Year Year Year Year Year
1 2 3 4 5
(1) (2) (3) (4) (5) (6) (7) (8)
Single entity
Bidder

Consortium
Member 1

Consortium
Member 2

Consortium
Member 3

Consortium
Member 4
TOTAL

Name & address of Bidders Bankers:

$
A Bidder consisting of a single entity should fill in details as per the row titled Single entity
Bidder and ignore the rows titled Consortium Members. In case of a Consortium, row titled
Single entity Bidder may be ignored.

Member Code shall indicate NA for Not Applicable in case of a single entity Bidder. For other
Members, the following abbreviations are suggested viz. LM means Lead Member, TM means
Technical Member, FM means Financial Member, OMM means Operation & Maintenance
Member; and OM means Other Member. In case the Eligible Project relates to an Associate of
the Bidder or its Member, write Associate along with Member Code.

10
Market Value of the Assets managed by self or on behalf of Investors
50

The Bidder should provide details of its own Financial Capability or of an Associate specified
in Clause 2.1.18.
$$
For conversion of US Dollars to Rupees, the rate of conversion shall be Rupees [50 (fifty)] to
a US Dollar. In case of any other currency, the same shall first be converted to US Dollars as on
the date 60 (sixty) days prior to the Bid Due Date, and the amount so derived in US Dollars
shall be converted into Rupees at the aforesaid rate. The conversion rate of such currencies
shall be the daily representative exchange rates published by the International Monetary Fund
for the relevant date.
Appendix IA
Annex-II
Instructions:
1. The Bidder/ its constituent Consortium Members shall attach copies of the balance
sheets, financial statements and Annual Reports for 5 (five) years preceding the Bid Due
Date. The financial statements shall:
(a) reflect the financial situation of the Bidder or Consortium Members and its/ their
Associates where the Bidder is relying on its Associates financials;
(b) be audited by a statutory auditor;
(c) be complete, including all notes to the financial statements; and
(d) correspond to accounting periods already completed and audited (no statements
for partial periods shall be requested or accepted).
2. Net Cash Accruals shall mean Profit After Tax + Depreciation.
3. Net Worth shall mean aggregate value of the paid-up share capital and all reserves
created out of the profits and securities premium account, after deducting the aggregate
value of the accumulated loses, deferred expenditure and miscellaneous expenditure not
written off, as per the audited balance sheet, but does not include reserves created out of
revaluation of assets, write back of depreciation and amalgamation.
4. Year 1 will be the latest completed financial year, preceding the bidding. Year 2 shall be
the year immediately preceding Year 1 and so on. In case the Bid Due Date falls within 3
(three) months of the close of the latest financial year, refer to Clause 2.1.21.
5. In the case of a Consortium, a copy of the Jt. Bidding Agreement shall be submitted in
accordance with Clause 2.1.15 (g) of the RFP document.
6. The Bidder shall also provide the name and address of the Bankers to the Bidder.
7. The Bidder shall provide an Auditors Certificate specifying the net worth of the Bidder
and also specifying the methodology adopted for calculating such net worth in
accordance with Clause 2.2.3 (ii) of the RFP document.

51
 Appendix I
Annex-III
ANNEX-III
Details of Projects of O&M Entity
(Refer to Clauses 2.2.2(A), 3.4 and 3.5 of the RFP)

Project Code: Member Code:

Item Particulars of the Project

Title & nature of the project

Entity for which the project was
constructed/ developed
Location
Project cost
Whether credit is being taken for
the Eligible Experience of an
Associate (Yes/ No)

The Bidder claiming O&M Experience should provide a certificate from its statutory auditors or
the client in the format below:
Certificate from the Statutory Auditor/ Client regarding Operation and Maintenance
(O&M)

Based on its books of accounts and other published information authenticated by it, {this is to
certify that .. (name of theO&M Entity) was engaged by ..
(title of the project company) to execute (name of project) for .
(nature of project)}. The project was commissioned on (date). It is certified that
. (name of the O&M Entity) received/paid Rs. .. cr. (Rupees
crore) by way of payment for the aforesaid O&M works. The date
of commencement of such works was.and the end of such Works was.

We further certify that the total Completed Capital Cost of the project is Rs. cr. (Rupees
crore)

Name of the audit firm:

Seal of the audit firm: (Signature, name and designation of the
Date: authorised signatory).

52
 Appendix IA
Annex-IV

ANNEX-IV
Statement of Legal Capacity

(To be forwarded on the letterhead of the Bidder / Lead Member of Consortium)

Ref. Date:

To,
***********
***********

Dear Sir,

We hereby confirm that we/ our members in the Consortium (constitution of

which has been described in the application) satisfy the terms and conditions laid
out in the RFP document.

We have agreed that (insert members name) will act as the

Lead Member of our Consortium.*

We have agreed that .. (insert individuals name) will act as our

representative/ will act as the representative of the Consortium on its behalf* and
has been duly authorized to submit the RFP. Further, the authorised signatory is
vested with requisite powers to furnish such letter and authenticate the same.

Thanking you,

Yours faithfully,

(Signature, name and designation of the authorised signatory)

For and on behalf of..

*Please strike out whichever is not applicable.

53
 APPENDIX-IA
Annexure V11
Guidelines of the Department of Disinvestment
(Refer Clause 1.2.1)

No. 6/4/2001-DD-II
Government of India
Department of Disinvestment
Block 14, CGO Complex
New Delhi.
th
Dated 13 July, 2001.

OFFICE MEMORANDUM

Sub: Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector
Enterprises through the process of disinvestment

Government has examined the issue of framing comprehensive and transparent

guidelines defining the criteria for bidders interested in PSE-disinvestment so that the
parties selected through competitive bidding could inspire public confidence. Earlier,
criteria like net worth, experience etc. used to be prescribed. Based on experience and in
consultation with concerned departments, Government has decided to prescribe the
following additional criteria for the qualification/ disqualification of the parties seeking
to acquire stakes in public sector enterprises through disinvestment:
(a) In regard to matters other than the security and integrity of the country, any
conviction by a Court of Law or indictment/ adverse order by a regulatory
authority that casts a doubt on the ability of the bidder to manage the public
sector unit when it is disinvested, or which relates to a grave offence would
constitute disqualification. Grave offence is defined to be of such a nature that it
outrages the moral sense of the community. The decision in regard to the nature
of the offence would be taken on case to case basis after considering the facts of
the case and relevant legal principles, by the Government of India.
(b) In regard to matters relating to the security and integrity of the country, any
charge-sheet by an agency of the Government/ conviction by a Court of Law for
an offence committed by the bidding party or by any sister concern of the bidding
party would result in disqualification. The decision in regard to the relationship
between the sister concerns would be taken, based on the relevant facts and after
examining whether the two concerns are substantially controlled by the same
person/ persons.
(c) In both (a) and (b), disqualification shall continue for a period that Government
deems appropriate.

11
These guidelines may be modified or substituted by the Government from time to time.
54
(d) Any entity, which is disqualified from participating in the disinvestment process,
would not be allowed to remain associated with it or get associated merely
because it has preferred an appeal against the order based on which it has been
disqualified. The mere pendency of appeal will have no effect on the
disqualification.

(e) The disqualification criteria would come into effect immediately and would apply
to all bidders for various disinvestment transactions, which have not been
completed as yet.
(f) Before disqualifying a concern, a Show Cause Notice why it should not be
disqualified would be issued to it and it would be given an opportunity to explain
its position.
(g) Henceforth, these criteria will be prescribed in the advertisements seeking
Expression of Interest (EOI) from the interested parties. The interested parties
would be required to provide the information on the above criteria, along with
their Expressions of Interest (EOI). The bidders shall be required to provide with
their EOI an undertaking to the effect that no investigation by a regulatory
authority is pending against them. In case any investigation is pending against the
concern or its sister concern or against its CEO or any of its Directors/ Managers/
employees, full details of such investigation including the name of the
investigating agency, the charge/ offence for which the investigation has been
launched, name and designation of persons against whom the investigation has
been launched and other relevant information should be disclosed, to the
satisfaction of the Government. For other criteria also, a similar undertaking shall
be obtained along with EOI.

sd/-
(A.K. Tewari)
Under Secretary to the Government of India

55
 APPENDIX II

Bank Guarantee for Bid Security

(Refer Clauses 2.1.6 and 2.20.1)
B.G. No. Dated:

1. In consideration of you, National Highways Authority of India , having its office

at G-5&6, Sector-10, Dwarka, New Delhi-110075, (hereinafter referred to as the
Authority, which expression shall unless it be repugnant to the subject or
context thereof include its, successors and assigns) having agreed to receive the
Bid of (a Company registered under Companies Act, 1956/2013)
and having its registered office at (and acting on behalf of its
Consortium) (hereinafter referred to as the Bidder which expression shall
unless it be repugnant to the subject or context thereof include its/their executors
administrators, successors and assigns), for the (Name of the
Project***************). (hereinafter referred to as the Project) pursuant to
the RFP Document dated issued in respect of the Project and other
related documents including without limitation the draft concession agreement
(hereinafter collectively referred to as Bidding Documents), we (Name of the
Bank) having our registered office at .. and one of its branches at
(hereinafter referred to as the Bank), at the request of the
Bidder, do hereby in terms of Clause 2.1.6 read with Clause 2.1.7 of the RFP
Document, irrevocably, unconditionally and without reservation guarantee the
due and faithful fulfilment and compliance of the terms and conditions of the
Bidding Documents (including the RFP Document) by the said Bidder and
unconditionally and irrevocably undertake to pay forthwith to the Authority an
amount of Rs.********(Rupees *********) (hereinafter referred to as the
Guarantee) as our primary obligation without any demur, reservation, recourse,
contest or protest and without reference to the Bidder if the Bidder shall fail to
fulfil or comply with all or any of the terms and conditions contained in the said
Bidding Documents.

2. Any such written demand made by the Authority stating that the Bidder is in default of the
due and faithful fulfilment and compliance with the terms and conditions contained in the
Bidding Documents shall be final, conclusive and binding on the Bank.

3. We, the Bank, do hereby unconditionally undertake to pay the amounts due and payable
under this Guarantee without any demur, reservation, recourse, contest or protest and
without any reference to the Bidder or any other person and irrespective of whether the
claim of the Authority is disputed by the Bidder or not, merely on the first demand from
the Authority stating that the amount claimed is due to the Authority by reason of failure of
the Bidder to fulfil and comply with the terms and conditions contained in the Bidding
Documents including failure of the said Bidder to keep its Bid open during the Bid validity

56
 period as setforth in the said Bidding Documents for any reason whatsoever. Any such
demand made on the Bank shall be conclusive as regards amount due and payable by the
Bank under this Guarantee. However, our liability under this Guarantee shall be restricted
to an amount not exceeding Rs. ********(Rupees *********).

4. This Guarantee shall be irrevocable and remain in full force for a period of 120 (one
hundred and twenty) days from the Bid Due Date and a claim period of 120 (sixty) days or
for such extended period as may be mutually agreed between the Authority and the Bidder,
and agreed to by the Bank, and shall continue to be enforceable till all amounts under this
Guarantee have been paid.

5. We, the Bank, further agree that the Authority shall be the sole judge to decide as to
whether the Bidder is in default of due and faithful fulfilment and compliance with the
terms and conditions contained in the Bidding Documents including, inter alia, the failure
of the Bidder to keep its Bid open during the Bid validity period set forth in the said
Bidding Documents, and the decision of the Authority that the Bidder is in default as
aforesaid shall be final and binding on us, notwithstanding any differences between the
Authority and the Bidder or any dispute pending before any Court, Tribunal, Arbitrator or
any other Authority.

6. The Guarantee shall not be affected by any change in the constitution or winding up of the
Bidder or the Bank or any absorption, merger or amalgamation of the Bidder or the Bank
with any other person.

7. In order to give full effect to this Guarantee, the Authority shall be entitled to treat the
Bank as the principal debtor. The Authority shall have the fullest liberty without affecting
in any way the liability of the Bank under this Guarantee from time to time to vary any of
the terms and conditions contained in the said Bidding Documents or to extend time for
submission of the Bids or the Bid validity period or the period for conveying acceptance of
Letter of Award by the Bidder or the period for fulfillment and compliance with all or any
of the terms and conditions contained in the said Bidding Documents by the said Bidder or
to postpone for any time and from time to time any of the powers exercisable by it against
the said Bidder and either to enforce or forbear from enforcing any of the terms and
conditions contained in the said Bidding Documents or the securities available to the
Authority, and the Bank shall not be released from its liability under these presents by any
exercise by the Authority of the liberty with reference to the matters aforesaid or by reason
of time being given to the said Bidder or any other forbearance, act or omission on the part
of the Authority or any indulgence by the Authority to the said Bidder or by any change in
the constitution of the Authority or its absorption, merger or amalgamation with any other
person or any other matter or thing whatsoever which under the law relating to sureties
would but for this provision have the effect of releasing the Bank from its such liability.

57
8. Any notice by way of request, demand or otherwise hereunder shall be sufficiently given or
made if addressed to the Bank and sent by courier or by registered mail to the Bank at the
address set forth herein.

9. We undertake to make the payment on receipt of your notice of claim on us addressed to

name of Bank along with branch address and delivered at our above branch who shall be
deemed to have been duly authorised to receive the said notice of claim.

10. It shall not be necessary for the Authority to proceed against the said Bidder before
proceeding against the Bank and the guarantee herein contained shall be enforceable
against the Bank, notwithstanding any other security which the Authority may have
obtained from the said Bidder or any other person and which shall, at the time when
proceedings are taken against the Bank hereunder, be outstanding or unrealised.

11. We, the Bank, further undertake not to revoke this Guarantee during its currency except
with the previous express consent of the Authority in writing.

12. The Bank declares that it has power to issue this Guarantee and discharge the obligations
contemplated herein, the undersigned is duly authorised and has full power to execute this
Guarantee for and on behalf of the Bank.

13. For the avoidance of doubt, the Banks liability under this Guarantee shall be restricted to
********(Rupees *********). The Bank shall be liable to pay the said amount or
any part thereof only if the Authority serves a written claim on the Bank in
accordance with paragraph 9 hereof, on or before *** (indicate date falling 180 days after
the Bid Due Date).

Signed and Delivered by .. Bank

By the hand of Mr./Ms .,

its. and authorised official.

(Signature of the Authorised Signatory)

(Official Seal)

58
 APPENDIX-III
Format for Power of Attorney for signing of Bid
(Refer Clause 2.1.8)
Know all men by these presents, We, (name of the firm and address of
the registered office) do hereby irrevocably constitute, nominate, appoint and authorize Mr. / Ms
(Name), son/daughter/wife of .. and presently residing at
., who is presently employed with us/ the Lead Member of our
Consortium and holding the position of , as our true and lawful
attorney (hereinafter referred to as the Attorney) 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 bid for the (Name of the Project ********************) Project proposed or being
developed by the National Highways Authority of India (the Authority) including but not
limited to signing and submission of all applications, bids and other documents and writings,
participate in bidders' and other conferences and providing information / responses to the
Authority, representing us in all matters before the Authority, signing and execution of all
contracts including the Concession Agreement and undertakings consequent to acceptance of our
bid, and generally dealing with the Authority in all matters in connection with or relating to or
arising out of our bid for the said Project and/or upon award thereof to us and/or till the entering
into of the Concession Agreement with the Authority.

AND we 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.

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)

of person authorized by Board Resolution
(in
case of Firms/Company)/Partner in case of
Partnership Firms

Witnesses:

59
1.

2.

Notarised
Notarised
Person identified by me/personally appeared before me
/signed before me/Attested/Authenticated*
(*Notary to specify as applicable)
(Signature, Name and Address of the Notary)
Seal of the Notary
Registration Number of the Notary
Date_____________
__

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 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 Bidder 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 Bidder.

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 Bidders 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 Appostille
certificate.

60
 APPENDIX-IV
Format for Power of Attorney for Lead Member of Consortium
(Refer Clause 2.1.9)
Whereas the National Highways Authority of India (the Authority) has invited bids from
intrested parties for the (Name of the Project *************). (the Project).Whereas,
., .. and .. (collectively the Consortium) being
Members of the Consortium are interested in bidding for the Project in accordance with the
terms and conditions of the Request for Proposal and other connected documents in respect of
the Project, and

Whereas, it is necessary for the Members of the Consortium to designate one of them as the
Lead Member with all necessary power and authority to do for and on behalf of the Consortium,
all acts, deeds and things as may be necessary in connection with the Consortiums bid for the
Project 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 the Consortium, as the Lead
Member and true and lawful attorney of the Consortium (hereinafter referred to as the
Attorney) and hereby irrevocably authorise the Attorney (with power to sub-delegate) to
conduct all business for and on behalf of the Consortium and any one of us during the bidding
process and, in the event the Consortium is awarded the Concession/ Contract, during the
execution of the Project, and in this regard, to do on our behalf and on behalf of the Consortium,
all or any of such acts, deeds or things as are necessary or required or incidental to the
submission of its bid for the Project, 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 Consortium and
generally to represent the Consortium in all its 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 Consortiums bid for the Project and/ or upon award thereof till the Concession
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/ Consortium.

61
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)

Witnesses:

1.

2.

(Executants)
(To be executed by all the Members of the Consortium)
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 Bidder should submit for verification the extract of the charter
documents and documents such as a resolution/ power of attorney in favour of the person
executing this Power of Attorney for the delegation of power hereunder on behalf of the
Bidder.

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 Bidders 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 Appostille
certificate.

62
 APPENDIX V
Format for Joint Bidding Agreement for Consortium
(Refer Clause 2.1.9 & 2.1.15(g))
(To be executed on Stamp paper of appropriate value)
THIS JOINT BIDDING AGREEMENT is entered into on this the day of
20

AMONGST
1. { Limited, and having its registered office at } (herein after referred
to as the First Part which expression shall, unless repugnant to the context include its
successors and permitted assigns)
AND
2. { Limited, having its registered office at } and (hereinafter referred to
as the Second Part which expression shall, unless repugnant to the context include its
successors and permitted assigns)
AND
3. { Limited, and having its registered office at } (hereinafter referred to
as the Third Part which expression shall, unless repugnant to the context include its
successors and permitted assigns)
The above mentioned parties of the FIRST, {SECOND and THIRD} PART are collectively
referred to as the Parties and each is individually referred to as a Party

WHEREAS,

(A) THE NATIONAL HIGHWAYS AUTHORITY OF INDIA, established under the

National Highways Authority of India Act 1988, represented by its Chairman and having
its principal offices at G-5 & 6, Sector 10, Dwarka, New Delhi-110075 (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 bids (the
Bids) by its Request for Proposal No. dated (the RFP) for award
of contract for (Name of the Project *********) on Toll Operate Transfer (TOT) Mode
(the Project) through public private partnership.

(B) The Parties are interested in jointly bidding for the Project as members of a Consortium
and in accordance with the terms and conditions of the RFP document and other bid
documents in respect of the Project, and

(C) It is a necessary condition under the RFP document that the members of the Consortium
shall enter into a Joint Bidding Agreement and furnish a copy thereof with the Bid.

63
 Appendix V
Page 2
NOW IT IS HEREBY AGREED as follows
1. Definitions and Interpretations
In this Agreement, the capitalised terms shall, unless the context otherwise requires, have
the meaning ascribed thereto under the RFP.

2. Consortium
2.1 The Parties do hereby irrevocably constitute a consortium (the Consortium) for the
purposes of jointly participating in the Bidding Process for the Project.

2.2 The Parties hereby undertake to participate in the Bidding Process only through this
Consortium and not individually and/ or through any other consortium constituted for this
Project, either directly or indirectly or through any of their Associates.
3. Covenants
The Parties hereby undertake that in the event the Consortium is declared the selected
Bidder and awarded the Project, it shall incorporate a special purpose vehicle (the SPV)
under the Indian Companies Act 1956/2013 for entering into a Concession Agreement
with the Authority and for performing all its obligations as the Concessionaire in terms of
the Concession Agreement for the Project.
4. Role of the Parties
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 Consortium and shall have the
power of attorney from all Parties for conducting all business for and on behalf of the
Consortium during the Bidding
Process and until the Appointed Date under the Concession Agreement when all the
obligations of the SPV shall become effective;

(b) Party of the Second Part shall be {the Technical Member of the Consortium ;}

{(c) Party of the Third Part shall be the Financial Member of the Consortium; and}

{(d) Party of the Fourth Part shall be the Operation and Maintenance Member/ Other Member
of the Consortium.}

5. Joint and Several Liability

The Parties do hereby undertake to be jointly and severally responsible for all obligations
and liabilities relating to the Project and in accordance with the terms of the RFP and the
Concession Agreement, till such time as the Financial Close for the Project is achieved
under and in accordance with the Concession Agreement.

6. Shareholding in the SPV

64
 The Parties agree that the proportion of shareholding among the Parties in the SPV shall
be as follows:
First Party:
Second Party:
{Third Party:}
{Fourth Party:}

6.2 The Parties undertake that a minimum of 26% (twenty six per cent) of the subscribed and
paid up equity share capital of the SPV shall, at all times till the second anniversary of the
date of commercial operation of the Project, be held by the Parties of the First, {Second
and Third} Part whose experience and networth have been reckoned for the purposes of
qualification and short-listing of Bidders for the Project in terms of the RFP.

6.3 The Parties undertake that each of the Parties specified in Clause 6.2 above shall, at all
times between the commercial operation date of the Project and the second anniversary
thereof, hold subscribed and paid up equity share capital of SPV equivalent to at least 5%
(five per cent) of the Total Project Cost.

6.4 The Parties undertake that they shall collectively hold at least 51% (fifty one per cent) of
the subscribed and paid up equity share capital of the SPV at all times until the second
anniversary of the commercial operation date of the Project.

6.5 The Parties undertake that they shall comply with all equity lock-in requirements set forth
in the Concession Agreement.

6.6 The Parties undertake that the O&M Member shall subscribe and hold at least 10% (ten
per cent) of the subscribed and paid up equity shares in the SPV in terms of the
Concession Agreement.}

7. Representation of the Parties

Each Party represents to the other Parties as of the date of this Agreement 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 Agreement;
(b) The execution, delivery and performance by such Party of this Agreement 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 Agreement for the delegation of power and authority to
execute this Agreement on behalf of the Consortium Member is annexed to this
Agreement, and will not, to the best of its knowledge:
(i) require any consent or approval not already obtained;
(ii) violate any Applicable Law presently in effect and having applicability to it;

65
(iii) violate the memorandum and articles of association, by-laws or other applicable
organisational documents thereof;
(iv) violate any clearance, permit, concession, grant, license or other governmental
authorisation, approval, judgement, 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 Agreement;
(c) this Agreement 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 Agreement.

8. Termination
This Agreement shall be effective from the date hereof and shall continue in full force and
effect until the Financial Close of the Project is achieved under and in accordance with the
Concession Agreement, in case the Project is awarded to the Consortium. However, in
case the Consortium is either not pre-qualified for the Project or does not get selected for
award of the Project, the Agreement will stand terminated in case the Bidder is not pre-
qualified or upon return of the Bid Security by the Authority to the Bidder, as the case
may be.

9. Miscellaneous
9.1 This Joint Bidding Agreement shall be governed by laws of {India}.
9.2 The Parties acknowledge and accept that this Agreement 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 AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.

SIGNED, SEALED AND DELIVERED SIGNED, SEALED AND DELIVERED

For and on behalf of
LEAD MEMBER by: SECOND PART

(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)

66
 (Address) (Address)

SIGNED, SEALED AND DELIVERED SIGNED, SEALED AND DELIVERED

For and on behalf of For and on behalf of

THIRD PART FOURTH PART

(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address)

SIGNED, SEALED AND DELIVERED SIGNED, SEALED AND DELIVERED

For and on behalf of For and on behalf of
FIFTH PART SIX PART
(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address)

In the presence of:

1. 2.

Notes:
1. The mode of the execution of the Joint Bidding Agreement 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.
2. Each Joint Bidding Agreement 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 Agreement for the delegation of power and authority to
execute this Agreement on behalf of the Consortium Member.
3. For a Joint Bidding Agreement 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.

67
 APPENDIX VI
Integrity pact (Refer clause 4.4)

Draft Integrity Pact Format applicable for works having value of Rs. 100 Cr and above

(Name of the Project on Toll Operate Transfer (TOT) Mode (the Project) through an public
private partnership.

(_________Division)

Tender No.________

This Integrity Pact is made at ________ on this __________ day of__________2014

Between

[National Highways Authority of India (NHAI), a statutory body constituted under the
National Highways Authority of India Act, 1988, which has been entrusted with the
responsibility of development, maintenance and management of National Highways,
having its office at G-5 & 6, Sector-10, Dwarka, New Delhi, hereinafter referred to as
The Principal, which expression shall unless repugnant to the meaning or contract
thereof include its successors and permitted assigns.]

and

_____________________________________________________. hereinafter referred to

as The Bidder/ Contractor/ Concessionaire/ Consultant and which expression shall
unless repugnant to be meaning or context thereof include its successors and permitted
assigns.

Preamble

Whereas, the Principal intends to award, under laid down organizational

procedures contract/s for . The Principal values full compliance
with all relevant laws of the land, rules of land, regulations, economic use of resources and
of fairness/ transparency in its relations with its Bidder(s) and for
Contractor(s)/Concessionaire(s)/Consultant(s).

And whereas in order to achieve these goals, the Principal will appoint an independent
external Monitor (IEM), who will monitor the tender process and the execution of the
contract for compliance with the Principles mentioned above.

68
And whereas to meet the purpose aforesaid, both the parties have agreed to enter into this
Integrity Pact (hereafter referred to as Integrity Pact) the terms and conditions of which
shall also be read as integral part and parcel of the Tender documents and contract
between the parties. Now, therefore, in consideration of mutual covenants stipulated in
this pact, the parties hereby agree as follows and this pact witnesseth as under:-

Article-1-Commitments of the Principal

(1) The Principal commits itself to take all measures necessary to prevent corruption and
to observe the following principle:-

(a) No employee of the Principal, personally or through family members, will in

connection with the lender for, or the execution of a contract, demand take a promise
for or accept for self or third person any material or immaterial benefit Which the
person is not legally entitled to.
(b) The Principal will, during the tender process treat all Bidder(s) with equity and reason.
The Principal will in particular, before and during the tender process, provide to all Bidder(s) the
same information and will not provide to any Bidder(s) confidential/ additional information
through which the Bidder(s) could obtain an advantage in relation to the tender process or the
contract execution.

(c) The Principal will exclude all known prejudiced persons from the process, whose
conduct in the past has been of biased nature.

(2) If the Principal obtains information on the conduct of any of its employees which is a
criminal offence under the IPC/PC Act or any other Statutory Acts or if there be a substantive
suspicion in this regard, the Principal will inform the Chief Vigilance Officer and in addition can
initiate disciplinary actions as per its internal laid down Rules/ Regulations.

Artifcle-2 Commitments of the Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s)

The Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) commit himself to take all

measures necessary to prevent corruption. He commits himself to observe the following
principles during his participation in the tender process and during the contract execution.

(a) The Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) will not, directly or

through any other person or firm, offer, promise or give to any of the Principals employees
involved in the tender process or the execution of the contract or to any third person any material
or other benefit which he/she is not legally entitled to, in order to obtain in exchange any
advantage of any kind whatsoever during the tender process or during the execution of the
contract.

(b) The Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) will not enter with other

69
Bidders into any undisclosed agreement or understanding, whether formal or informal. This
applies in particular to prices, specifications, certifications, subsidiary contracts, submission or
non-submission or bids or any other actions to restrict competitiveness or to introduce
cartelization in the bidding process.

(c) The Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) will not commit any
offence under the relevant IPC / PC. Act and other Statutory Acts; further the Bidder(s)/
Contractor(s)/ Concessionaire(s)/ Consultant(s) will not use improperly for purposes of
completion or personal gain, or pass on to others, any information or document provided by the
Principal as part of the business relationship, regarding plans, technical proposals and business
details, including information contained or transmitted electronically.

(d) The Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) of foreign origin shall

disclose the name and address of the Agents/ representatives in India. If any similarly the
Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) of Indian Nationality shall furnish the
name and address of the foreign principle, if any.

(e) The Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) will, when presenting his
bid, disclose any and all payments he has made, is committed to or intends to make to agents,
brokers or any other intermediaries in connection with the award of the contract. He shall also
disclose the details of services agreed upon for such payments.

(f) The Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) will not instigate third
persons to commit offences outlined abov\e or be an accessory to such offences.

(g) The Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) will not bring any
outside influence through any Govt. bodies/quarters directly or indirectly on the bidding process
in furtherance of his bid.

Article 3 Disqualification from tender process and exclusion from future contracts

(1) If the Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) before award or during

execution has committed a transgression through a violation of any provision of Article-2, above
or in any other from such as to put his reliability or credibility in question, the Principal is
entitled to disqualify the Bidder(s)/ Contractor(s)/ Concessionaire(s)/ Consultant(s) from the
tender process.

(2) If the Bidder/Contractor/Concessionaire/Consultant has committed a transgression

through a violation of Article-2 such as to put his reliability or credibility into question, the
Principal shall be entitled to exclude including blacklist and put on holiday the
Bidder/Contractor/Concessionaire/Consultant for any future tenders/contract award process. The
imposition and duration of the exclusion will be determined by the severity of the transgression.
The severity will be determined by the Principal taking into consideration the full facts and

70
circumstances of each case particularly taking into account the number of transgressions, the
position of the transgressors within the company hierarchy or the
Bidder/Contractor/Concessionaire/Consultant and the amount of the damage. The exclusion will
be imposed for a minimum of 1 year.

(3) A transgression is considered to have occurred if the Principal after due consideration of
the available evidence concludes that On the basis of facts available there are no material
doubts.

(4) The Bidder/ Contractor/Concessionaire/Consultant will its free consent and without any
influence agrees and undertakes to respect and uphold the Principals absolute rights to resort to
and impose such exclusion and further accepts and undertakes not to challenge or question such
exclusion on any ground, including the lack of any hearing before the decision to resort to such
exclusion is taken. This undertaking is given freely and after obtaining independent legal advice.

(5) The decision of the Principal to the effect that a breach of the provisions of this
Integrity Pact has been committed by the Bidder/ Contractor/Concessionaire/Consultant shall be
final and binding on the Bidder/ Contractor/Concessionaire/Consultant.

(6) On occurrence of any sanctions/ disqualification ets arising out from violation of
integrity pact, Bidder/ Contractor/Concessionaire/Consultant shall not be entitled for any
compensation on this account.

(7) Subject to full satisfaction of the Principal, the exclusion of the

Bidder/Contractor/Concessionaire/Consultant could be revoked by the Principal if the Bidder/
Contractor/Concessionaire/Consultant can prove that he has restored/recouped the damage
caused by him and has installed a suitable corruption prevention system in his organization.

Article 4 Compensation for Damages

(1) If the Principal has disqualified the Bidder(s) from the tender process prior to the
award according to Article3, the Principal shall be entitled to forfeit the Earnest Money
Deposit/Bid Security or demand and recover the damages equivalent to Earnest Money
Deposit/Bid Security apart from any other legal right that may have accrued to the Principal.

(2) In addition to above, the Principal shall be entitled to take recourse to the
relevant provisions of the contract related to Termination of Contract due to
Contractor/Concessionaire/Consultants Default. In such case, the Principal shall be entitled to
forfeit the Performance Bank Guarantee of the Contractor/Concessionaire/Consultant and/or
demand and recover liquidated and all damages as per the provisions of the contact/Concession
agreement against Termination.

71
Article 5 Previous Transgression

(1) The Bidder declares that no previous transgression occurred in the last 3 years
immediately before signing of this integrity pact with any other Company in any country
conforming to the anti corruption/Transparency International (TI) approach or with any
other Public Sector Enterprise/Undertaking in India or any Government Department in
India that could justify his exclusion from the lender process.

(2) If the Bidder makes incorrect statement on this subject, he can be disqualified from
the tender process or action for his exclusion can be taken as mentioned under Article-3
above for transgression of Article-2 and shall be liable for compensation for damages as
per Article-4 above.

Article 6 Equal treatment of all Bidders/ Contractors/ Concessionaires/ Consultants/

Subcontractors

(1) The Bidder(s)/Contractor(s)/Concessionaire(s)/Consultant(s) undertake(s) to

demand from all sub-contractors a commitment in conformity with this integrity Pact, and
to submit it to he Principal before contract signing.

(2) The Principal will enter into agreements with identical conditions as this one with
all Bidders/Contractors/Concessionaire/Consultant and Subcontractors.

(3) The Principal will disqualify from the lender process all Bidders who do not sign
this Pact violate previsions.

Article 7 Criminal charges against violating Bidder(s)/ Contractor(s)/ Concessionaire(s)/

Consultant(s)/ Sub-contractor(s)

If the Principal obtains knowledge of conduct of a

Bidder/Contractor/Concessionaire/Consultant or Subcontractor, or of an employee or a
representative or an associate of a Bidder/Contractor/Concessionaire/Consultant or
Subcontractor, which constitutes corruption, or if the Principal has substantive suspicion
in this regard, the Principal will inform the same to the Chief Vigilance Officer.

Article 8 Independent External Monitor (IEM)

(1) The Principal appoints competent and credible Independent External Monitor for this Pact.
The task of the Monitor is to review independently and objectively, whether and to what
extent the parties comply with the obligations under this agreement.

(2) The Monitor is not subject to instructions by the representatives of the parties and performs
his functions neutrally and independently. He reports to the Chairman, NHAI.

72
(3) The Bidder/Contractor/Concessionaire/Consultant accepts that the Monitor has the right to
access without restriction to all Project documentation of the Principal including that
provided by the Bidder/ Contractor/ Concessionaire/ Consultant. The Bidder/ Contractor/
Concessionaire/ Consultant will also grant the Monitor, upon his request and demonstration
of a valid interest, unrestricted and unconditional access to his project. The Monitor is under
contractual obligation to treat the information and documents of the Bidder/ Contractor/
Concessionaire/ Consultant/ subcontractors with confidentiality.

(4) The Principal will provide to the Monitor sufficient information about all meetings among
the parties related to the Project provided such meetings could have an impact on the
contractual relations between the Principal and the Bidder/Contractor/
Concessionaire/Consultant. The parties offer to the Monitor the option to participate in
such meetings.

(5) As soon as the Monitor notices, or believes to notice any transgression as given in Article-2,
he may request the Management of the Principal to take corrective action, or to take relevant
action. The monitor can in this regard submit non- binding recommendations. Beyond this,
the Monitor has no right to demand from the parties that they act in a specific manner, refrain
from action or tolerate action.

(6) The Monitor will submit a written report to the Chairman, NHAI within 8-10 weeks from the
date of reference or intimation to him by the Principal and, should the occasion arise, submit
proposals for correcting problematic situations.

(7) If the Monitor has reported to the Chairman, NHAI, a substantiated suspicion of under
relevant IPC/PC Act or any other Statutory Acts, and the Chairman, NHAI has not, within
the reasonable time taken visible action to proceed against such offence or reported it the
Chief Vigilance Officer, the Monitor may also transmit this information directly to the
Central Vigilance Commissioner.

(8) The word 'Monitor' would include both singular and plural.

Article 9 Pact Duration

This Pact begins when both parties have signed (In case of EPC i.e. for projects funded by
Principal and consultancy services) It expires for the Contractor/Consultant 12 months
after his Defect Liability Period is over or 12 months after his last payment under the
contract whichever is later and for all other unsuccessful Bidders 6 months after this
Contract has been awarded (In case BOT projects) It expires for the concessionaire 24
months after his concession period is over and for all other unsuccessful Bidders 6 months
after this Contract has been awarded.

73
If any claim is made/lodged during this time, the same shall be biding and continue to be
valid despite the lapse of this pact as specified above, unless it is discharged determined
by Chairman of NHAI.

Article 10 Other Provisions

(1) This pact is subject to Indian Law, Place of performance and jurisdiction is the
Registered Office of the Principal, i.e. New Delhi.

(2) Changes and supplements as well as termination notices need to be made in wiring.

(3) If the Bidder/Contractor/Concessionaire/Consultant is a partnership or a consortium,

this pact must be signed by all partners or consortium members.

(4) Should one or several provisions of this agreement turn out to be invalid, the
reminder of this agreement remains valid, in this case, the parties will strive to come
to an agreement to their original intentions.

(5) Amy dispute/differences arising between the parties with regard to term of this Pact,
any action taken by the Principal in accordance with this Pact or interpretation
thereof shall not be subject to any Arbitration.

(6) He actions stipulated in the integrity Pact are without prejudice to any other legal
action that may follow in accordance with the provisions to the extant law in force
relating to any civil or criminal proceedings.

In witness whereof he parties have signed and executed this pact at the place and
date first done mentioned in the presence of following witnesses:-

______________________________ _______________________________

(For & On behalf of the (Principal) (For & On behalf of Bidder/

Contractor/Concessionaire/Consultant

(Office Seal)

Place ________

Date ________

74
Witness 1:

(Name & Address) ___________________________________________________

___________________________________________________

___________________________________________________

Witness 2:

(Name & Address) ___________________________________________________

___________________________________________________
_____________________________

75
 APPENDIX VII
Year Wise Distribution of Initial Estimated
Concession Value of Authority

76