(1) DIRECT NEGOTIATIONS
(1) The Government Agency or the Local Authority may directly negotiate with a Bidder for implementing;
(a) Category- I projects initiated by a Bidder, or
(b) the projects which involve proprietory technology, or franchise which is exclusively available with the Bidder globally; or
(c) the projects where competitive bid process has earlier failed to identify a suitable developer; or
(d) the projects in prescribed social infrastructure sectors where a nonprofit organisation seeks to develop a project ; or
(e) a linkage Infrastructure Project with the concerned Developer of Mega Infrastructure Project.
(ii) In case a developer is selected through direct negotiations, the Government Agency or the Local Authority may renegotiate the financial offer or recommend that all subsequent procurement for the project is made through the competitive bidding procurement process, the cost of the project be determined after such competitive bidding procurement process and renegotiate the financial offer based on the revised cost of the project.
(II) SWISS CHALLENGE APPROACH
(i) The Swiss Challenge Approach will be followed in any projects belonging to Category-II initiated by a private sector participant who is hereinafter referred to as ‘Original Project Proponent’, by a suo-motu proposal.
(ii) The Original Project Proponent must submit to the Government Agency or Local Authority:-
(a) details of his technical, commercial, managerial and financial capability;
(b) technical, financial and commercial details of the proposal;
(c) principles of the concession agreement.
(iii) The Government Agency or the Local Authority would first evaluate the Original Project Proponent’s technical, commercial, managerial and financial capability as may be prescribed and determine whether the Original Project Proponents capabilities are adequate for undertaking the project.
1. Sec.18 substituted by Act 3 of 2017, Sec.10.
(iv) 1[* * * * *]
(v) 1[* * * * *]
(vi) 1[* * * * *]
(vii) 1[* * * * *]
(viii) In the event of the Project not being awarded to the Original Project Proponent and being awarded to any other Bidder, the Government Agency or the Local Authority will reimburse to the original Project Proponent reasonable costs incurred for preparation of the suo-motu proposal and the Concession Agreement. The suo-motu proposal and the Concession Agreement prepared by the Original Project Proponent shall be the property of the Government Agency or the Local Authority as the case may be.
(ix) The reasonable costs of preparation of the suo-motu proposal and the Concession Agreement shall be determined as per the norms prescribed by the Government and shall be binding upon the Original Project Proponent.
2[(x) the above Swiss Challenge approach shall however be followed in respect of a Project Subject to the approval of Competent Authority.]
(III) COMPETITIVE BIDDING
(i) Competitive Bidding will be adopted in all Projects initiated by the Government Agency or the Local Authority. The notice inviting participation will be adequately publicised by the Government Agency or the Local Authority as may be prescribed.
(ii) The bid process will be designed to assist and ascertain, technical, financial, managerial and commercial capabilities of the Developer.
(iii) In case of a two stage process being adopted for a Mega Infrastructure Project, the Government Agency or the Local Authority may require all Bidders to obtain from their Prospective Lenders, financial terms, expectations regarding State Support, comments on the Concession Agreement and other project documents (hereinafter called “Deviations”).
(iv) Any Deviations proposed shall be enclosed in a separate envelope and shall not be part of the envelope containing the financial or the commercial offer with regard to a project. The procedure for determining the common set of Deviations and the effect to be given to such common set of Deviations shall be as may be prescribed.
(v) All proposals shall be opened and evaluated at a common platform in a free and fair manner.
(vi) It will be open for the Government Agency or the Local Authority to adopt one or two stage process depending upon the complexity of the project.
(vii) 3[* * * * *]
20. Approval of contract principles - In case a model contract for a Sector has not been adopted or in case there are Deviations proposed vis-à-vis the
1. In Sec.19 in clause II under the heading “Swiss challenge Approach” Sub clauses (iv), (v), (vi) and (vii) omitted by Act 3 of 2017, Sec.11.
2 Sub clause (x) added after Sub clauses (ix) in clause II under the heading “Swiss challenge Approach” in Sec.19.
3. Sub clause (vii) in clause III under the heading “Competitive Bidding” in Sec.19 omitted by Act 3 of 2017, Sec.11.
approved model contract for a Sector, then, the 1[Government] will formulate or approve the contract principles as the case may be.