(1) Notwithstanding anything contrary in any other laws for the time being in force, the Infrastructure Authority shall have the power to grant any clearance or permission required for any project save and except sanction to the project by the Government as provided under this Act and such clearance or permission when granted shall be final, binding and conclusive on the concerned state level statutory bodies or administrative bodies or authorities, as the case may be.
(2) Notwithstanding anything contrary in any law for the time being in force, the Infrastructure Authority may give directions to any Government Agency or Local Authority or other Authority or Developer or Person with regard to implementation of any project under the Act or for carrying out its functions under this Act and such Government Agency or Local Authority or other Authority or Developer or Person shall be bound to comply with such directions.
(3) The Infrastructure Authority shall have power to call upon any Government Agency, Local Authority or any other Body or Authority or Developer or Person to furnish information, details, documents and particulars as may be required by the Infrastructure Authority in connection with or in relation to any project, which such Government Agency, Local Authority or Body or Authority, Developer or Person, shall furnish to the Infrastructure Authority without any delay or default.
(4) The Infrastructure Authority shall have power to inspect, visit, review and monitor any project and its implementation, execution, operation and management through its official or officials and the persons in charge of Powers of the Infrastructure Authority.
16 [Act No.36 of 2001] the project shall be bound to give full cooperation to the Infrastructure Authority.
(5) The Infrastructure Authority shall have all powers to enable to carry out its functions under the Act.
12. The Infrastructure Authority shall submit quarterly report as regards its working and operation to the State Government.
CHAPTER - III INFRASTRUCTURE PROJECT DELIVERY PROCESS
13. Any private sector participant may participate in financing construction, maintenance, operation and management of Infrastructure Projects covered under the Act.
14. Either the Infrastructure Authority or the Government Agency or the Local Authority may identify or conceptualise any Infrastructure Project. If the Authority identifies or conceptualises any Infrastructure Project, then the same will be referred by the Authority to the concerned Government Agency or the Local Authority for its consideration and further action. If the Government Agency or Local Authority identifies or conceptualises any infrastructure project, then the same will be referred to Infrastructure Authority for its consideration, evaluation and further action as may be required.
15. The Infrastructure Authority will prioritise projects based on demand and supply gaps, inter-linkages and any other relevant parameters and create a project shelf.
16. The Government Agency or the Local Authority in accordance with the advice, recommendations and suggestions of the Infrastructure Authority shall submit the Report to the Government.
Participation in infrastructure project.
Project Identification.
Prioritisation of Projects.
Recommendations by the Infrastructure Authority.
[Act No.36 of 2001] 17 project to the Government along with the proposed concession agreement relating thereto for its consideration and sanction.
17. The Government shall consider the proposal submitted by the Government Agency or Local Authority and the proposed Concession Agreement and either accept the proposal and Concession Agreement with or without modification or return the proposal and concession agreement to the Government Agency or the Local Authority for reconsideration or reject the proposal within such time as may be prescribed. The Government Agency or the Local Authority will take suitable action on the decision taken by the Government on the proposal and the concession agreement including revising and resubmitting the proposal and the concession agreement if returned by the Government for reconsideration by the Government Agency or the Local Authority:
Provided that if the Bidder whose proposal submitted for sanction is not in a position to implement the project, the Government may at the request of the Government Agency or the Local Authority with the approval of the Infrastructure Authority consider the proposal of the Bidder offering the second most competitive bid for sanction.
18. The Government Agency or the Local Authority shall ensure adequate competition in the consultant selection process for any project. They may, frame the terms of reference for consultant studies and in case of Category II projects and present the same for approval and modification, if necessary, by the Infrastructure Authority:
Provided that in the case of such selection process adequate weightage shall be given to the technical capabilities.
Sanction by the Government.
Consultant selection.
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19. The Government Agency or the Local Authority may adopt appropriate Developer Selection Process including any of the following processes, namely:- (I) DIRECT NEGOTIATIONS:
(i) 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 proprietary 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 non-profit 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.
Developer selection processes.
[Act No.36 of 2001] 19 (II) SWISS CHALLENGE APPROACH:
(i) The Swiss Challenge Approach will be followed in any project 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;
(iv) The Government Agency or the Local Authority shall forward such suo-motu proposal to the Infrastructure Authority along with its evaluation within the prescribed time for the approval of the Infrastructure Authority;
(v) The Infrastructure Authority would then weigh the technical, commercial and financial aspects of the Original Project Proponent‟s proposal and the concession agreement along with the evaluation of the projects by the Government Agency or the Local Authority and ascertain if the scale and scope of the project is in line with the requirements of the State and whether the sharing of the 20 [Act No.36 of 2001] risks as proposed in the Concession Agreement is in conformity with the risk-sharing frame work as adopted or proposed by the Government for similar projects, if any and if the project is in conformity with long term objective of the Government;
(vi) If the Infrastructure Authority recommends any modification in the technical, scale, scope and risk sharing aspects of the proposal or the Concession Agreement, the Original Project Proponent will consider and incorporate the same and resubmit its proposal within prescribed time to the Government Agency or the Local Authority;
(vii) If the Infrastructure Authority finds merit in such suo-motu proposal, the Infrastructure Authority will then require Government Agency or the Local Authority to invite competing counter proposals using the Swiss Challenge Approach giving adequate notice as may be prescribed.
The Original Project Proponent will be given an opportunity to match any competing counter proposals that may be superior to the proposal of the Original Project Proponent. In case the Original Project Proponent matches or improves on the competing counter proposal, the project shall be awarded to the Original Project Proponent, otherwise the bidder making competing counter proposal will be selected to execute the project;
(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;
[Act No.36 of 2001] 21
(ix) The reasonable costs of preparation of the suomotu 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.
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;
22 [Act No.36 of 2001]
(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) The Government Agency or the Local Authority will periodically inform the Infrastructure Authority of the progress of all Projects undertaken through a two-stage bid process.
20. In case a model contract for a Sector has not been adopted or in case there are Deviations proposed vis-a-vis the approved model contract for a Sector, then, the Infrastructure Authority will formulate or approve the contract principles as the case may be.
21. The Government Agency or the Local Authority will first satisfy itself about the technical ability of the Developer to undertake and execute the Project and will follow,-
(a) one or combination of one or more of the following criteria for Developer selection through competitive bidding in Build Own Operate and Transfer, Build Operate and Transfer and Build Own and Operate Projects,-
(i) Lowest bid in terms of the present value of user fees;
(ii) Highest revenue share to the Government;
(iii) Highest up front fee;
(iv) Shortest concession period;
(v) Lowest present value of the subsidy;
(vi) Lowest capital cost and Operation & Management cost for Projects having a definite scope;
Approval of contract principles.
Selection criteria.
[Act No.36 of 2001] 23
(vii) Highest equity premium; and
(viii) Quantum of State Support solicited in present value;
(b) For Build Transfer, Build Lease and Transfer and Build Transfer and Lease Projects selection criteria used will be the lowest net present value of payments from the Government.
(c) Such other suitable selection criteria the Infrastructure Authority may allow or determine.
22. In case of the competitive bidding process resulting into a Sole Bid, the Government Agency or the Local Authority shall in consultation with the Infrastructure Authority, either,-
(i) accept the Sole Bid, or
(ii) re-negotiate the financial offer, or
(iii) reject the Sole Bid.
23. In case the competitive bidding process does not generate sufficient response and if even a Sole Bid is not received, then the Government Agency or the Local Authority shall in consultation with the Infrastructure Authority 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.
Treatment of Sole Bid.
Treatment of limited response.
24 [Act No.36 of 2001]