In case the competitive bidding process does not generate sufficient response and if even a Sole Bid is not received, then the Government Agency of the Local Authority shall in consultation with the 1[Government] either,-
(i) modify either the pre-qualification criteria and /or the risk sharing provisions and restart the bid process; or
(ii) may cancel the competitive bid process; or
(iii) in case of (ii) above, may have direct negotiation with any Private Sector Participant.
1. For the words ‘Infrastructure Authority’ the word ‘Government’ shall be substituted in Sec.20, Sec.22, and Sec.23 by Act 3 of 2017, Sec.12.
24. Treatment of Bid submitted by a consortium -(a) All proposals submitted by a Bidding Consortium shall enclose a memorandum of undertaking, executed by all consortium members setting out the role of each of the consortium members and the proposed equity stake of each of the consortium members with regard to a Project.
(b) The Lead Consortium Member of a pre-qualified Consortium cannot be replaced except with the prior permission of the 1[Government] and which permission will be considered only in case of acquisition or merger of the Lead Consortium Member Company. Further, after a Bidding Consortium is selected to implement any Project, the Lead Consortium Member shall maintain a minimum equity stake of 26% for a period of time, as specified in the Sector Policy or the Concession Agreement.
(c) Replacement of other Consortium Members may be permitted, provided the same is not prejudicial to the original strength of Consortium as determined in course of the evaluation of original bid or proposal.
(d) Any change in the shareholding or composition of a Consortium shall be with the approval of the 1[Government].
25. Speculative bids - The Government Agency or the Local Authority with the approval of the 1[Government] will be entitled to treat the speculative or unrealistic bids as non-responsive and reject the same. By reason of any speculation or unrealistic bid or rejection of such bid, shall not necessarily lead to termination of the bid process. The 1[Government] will prescribe the norms for determining the speculative or unrealistic Bids.
26. No negotiation on financial or commercial proposal - Save as otherwise provided in the Act the Government, or the Government Agency or Local Authority will not negotiate with the Bidder on the financial or commercial aspect of the proposal submitted by the Bidder.
27. Bid Security - (1) The Bidder will be required to submit a bid security along with the proposal for undertaking the Infrastructure Project, the bid security amount will be determined based on the Project cost by the Government Agency or the Local Authority.
(2) The procedure for refund of bid security will be specified in the request for proposal. In any event, the bid security of unsuccessful Bidder would be returned within 30 calendar days from the date of selection of the Developer.
CHAPTER - IV GENERIC RISKS DISCLOSURE AND ALLOCATION, SECURITISATION, RIGHT OF LENDERS AND FACILITIES TO BE PROVIDED BY THE GOVERNMENT AGENCY OR THE LOCAL AUTHORITY.
28. Generic Risks disclosure and its allocation and treatment - The Government Agency or the Local Authority will as far as possible disclose Generic Risks involved in a Project and a list of such Generic Risks along with allocation and treatment of such Generic Risks may be provided in the Concession Agreement or other contract to be entered into between the Government Agency or the Local Authority and the Developer. The Government Agency or the Local Authority will make optimum disclosure of the Generic
1. For the words ‘Infrastructure Authority’ the word ‘Government’ shall be substituted in Sec.24, and Sec.25 by Act 3 of 2017, Sec.12.
Risks, however if any risk is not disclosed due to inadvertence or due to circumstances beyond the control of the Government Agency or the Local Authority, then the same shall not be a ground for any claim, demand or dispute by the Developer.
29. Facilitation of the securitisation - The Government Agency or the Local Authority may facilitate a Developer to securitise Project receivables and project assets in favour of Lenders subject to such terms as may be fixed by the Government or by the Infrastructure Authority to safeguard the successful implementation, competition working, management and control of the project.