| AN ACT |
| To provide for a framework for participation by persons other than the State Government and Government agencies in financing, construction, maintenance and operation of infrastructure projects and for that purpose to establish the Board and to provide for the matters connected therewith. |
| It is hereby enacted in the fiftieth Year of the Republic of India, as follows |
| Selection person of (8.1) |
| concession agreement for undertaking a project may be entered into with a person who is selected through a competitive public bidding as provided in section 9 or by direct negotiation as provided in section 10. The matters relating to competitive public bidding and direct negotiation shall be such as may be prescribed. |
| Selection of a person by competitive public bidding (9.1) |
| Selection of a person by competitive public bidding 9.(1) On the acceptance of the recommendation of the Board made under sub-section (2) of section 5, the State Government, the Government agency or, as the case may be, the specified Government agency shall select a developer for the project through the competitive public bidding in the manner provided hereunder- |
| a. |
public notice inviting the persons to participate in competitive public bidding for undertaking the project. |
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| (i) |
shall be published once in a week for two consecutive weeks in at least three newspapers, two in general circulation and one in circulation in the area in which the project is to be undertaken, and |
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| (ii) |
may be published by any means of mass communication. |
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| b. |
(i) |
Any person who intends to participate in the competitive public bidding to undertake the project in pursuance of clause (a) shall provide information with regard to his legal, technical, managerial and financial capacity to undertake the said project in such form alongwith such particulars as may be specified by the State Government, the Government agency or, as the case may be, the specified Government agency. |
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| (ii) |
The State Government, the Government agency or, as the case may be, the specified Government agency shall examine the information and other particulars submitted the person under sub-clause (i) and decide as to whether such person fulfills the criteria for pre-qualification as laid down by the State Government, the Government agency or, as the case may be, the specified Government agency. |
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| (iii) |
A person who fulfills the criteria under sub-clause (ii) shall be the pre-qualified person |
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| a. |
(i) |
Where after a person is consortium is pre-qualified under clause (b) but before such person entered into a concession agreement with the State Government, the Government agency or, as the case may be, the specified Government agency, any constituent of the consortium disassociates from such consortium, then the State Government, the Government agency or, as the case may be, the specified Government agency shall call upon the consortium to include, within thirty days, such constituent in the consortium so that in the opinion of the State Government, the Government agency or, as the case may be, the specified Government agency, the consortium fulfills the criteria specified in sub-clause (ii) of clause (b) |
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| (ii) |
Where the consortium fails to comply with the requirement specified in sub-clause (I), the consortium shall cease to be pre-qualified person. |
|
| b. |
All pre-qualified persons shall be permitted to submit their proposals to undertake the project in such form (containing technical and financial aspects) as may be specified by the State Government, the Government agency or, as the case may be, the specified Government agency. |
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| (9.2) |
| On receipt of the proposals from the pre-qualified persons, the State Government, the Government agency or, as the case may be, the specified Government agency shall reevaluate the proposals from technical aspect |
| (9.3) |
| If the proposals are in order from the technical aspect, the State Government, the Government agency or, as the case may be, the specified Government agency shall evaluate the proposals from the financial aspect, having regard to different factors specified below in respect of different nature of the agreements specified in Schedule II- |
| a. |
In relation to the build own operate and transfer agreement and the build operate and transfer agreement, any of the following factors shall be taken into consideration for the purpose of evaluation of the proposal, namely.- |
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| (i) |
lowest bid in terms of the present value of user fees, where period of concession is fixed; |
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| (ii) |
the highest revenue share to the State Government, the Government agency or the specified Government agency. |
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| (iii) |
a bid in terms of the shortest concession period, where the user fees is fixed. |
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| (iv) |
the lowest present value of the subsidy, where the period of concession is fixed. |
|
| b. |
In relation to the build and transfer agreement or the build lease and transfer agreement, the lowest net present value of the amortization payment from the State Government, the Government agency or the specified Government agency shall be taken into consideration. |
|
| c. |
In relation to the lease management agreement, highest present value of the lease payment to the State Government, the Government agency or the specified Government agency shall be taken into consideration. |
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| d. |
In relation to the management and service agreement, the lowest present value of the management fees to be paid by the State Government, the Government agency or the specified Government agency shall be taken into consideration. |
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| e. |
In relation to any other nature of agreement, the State Government, the Government agency or the specified Government agency may consider such factors as may be recommended by the Board. |
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| (9.4) Where - |
| a. |
the proposals are evaluated under sub section (3) from the financial aspect having regard to a relevant factor specified in that sub section and refereed to in the proposal, and |
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| b. |
Once the proposal so evaluated satisfies the financial aspect having regard to the relevant factor, |
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| c. |
The State Government, the Government agency or, as the case may be, the specified Government agency, may enter into a concession agreement with the person who has submitted the proposal referred to in clause |
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| Selection by direct negotiation (10.1) |
| Where- |
| (i) |
a proposal for participation by a person for undertaking a project and a proposed concession agreement have not been prepared by the State Government, a Government agency or the specified Government agency for being submitted to the Board under sub-section (1) of section 5, and |
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| (ii) |
a proposal for undertaking a project and a proposed concession agreement prepared by a person are submitted to the State the Government, agency or the specified Government agency ; The State Government, the Government agency or, as the case may be the specified Government agency may- |
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| a. |
consider the proposal and the proposed concession agreement from all aspect (including technical and financial) and if necessary modify the same in consultation with the person who has submitted the proposal and the proposed concession agreement, and |
|
| b. |
submit the proposal and the proposed concession agreement to the Board if- |
|
| (i) |
the cost of the project exceeds the limit prescribed under sub-section (`1) of section 5 and |
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| (ii) |
the undertaking of the project does not require financial assistance in the form of subsidy from the State Government, the Government agency or the specified Government Agency. |
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| (2) |
On acceptance of the recommendation of the Board made under sub-section |
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| (10.2) |
| of section 5, the State Government, the Government agency or, as the case may be, the specified Government agency shall adopt the proposal as the basis for selecting a person with whom concession agreement for undertaking the project may be entered into, and for selecting such person, the State Government, the Government agency or, as the case may be, the specified Government agency shall follow the procedure of competitive public bidding specified in section 9. |
| (10.3) |
| Where a person is selected by following the procedure of the competitive public bidding (hereinafter referred to as "the selected person") the proposal of the selected person shall be compared with the proposal which is earlier submitted by a person to the State Government, the Government agency or, as the case may be, the specified Government agency under sub-section (1) (hereinafter referred to as "the earlier proposer"). |
| (10.4) |
| Where the proposal of the earlier proposer is not preferable to the proposal of the selected person, the earlier proposer shall be given an opportunity to make his proposal competitive with that of the selected person within a period of thirty days from the date on which he has been given an opportunity and where the earlier proposer fails to do so within the said period, the State Government, the Government agency or, as the case may be, the specified Government agency may enter into a contract with the selected person. |
| (10.5) |
| a. Where a concession agreement has not been entered into with the earlier proposer, the cost of preparation of the proposal and the concession agreement incurred by him shall be reimbursed by the State Government, the Government agency or, as the case may be, the specified Government agency and on such reimbursement, the proposal and the concession agreement relating to it shall be the property of the State Government, the Government agency or, as the case may be, the specified Government agency. |
| b. the cost of preparation of the proposal and the concession agreement shall be determined in such manner as may be prescribed. |
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