NTPC LIMITED
(A Government of India Enterprise)
BIDDING DOCUMENTS
FOR
CONSULTANCY FOR DESIGN AND ENGINEERING
OF CIVIL WORKS PERTAINING TO COAL MINING
INFRASTRUCTURE AT KERENDARI ‘ A’
(This document is meant for the exclusive purpose of bidding against this Invitation
for Bid (IFB) and shall not be transferred, reproduced or otherwise used for
purposes other than that for which it is specifically issued).
NTPC Limited
Contracts & Materials
Coal Mining HQ, Chutia,
Ranchi, Jharkhand-834002, India.
CONTENTS
Section I: Invitation for Bids (IFB)
Section II: Instructions to Bidders/Consultants (ITB/ITC)
Section III: Bid Data Sheet (BDS)
Section IV: General Conditions of Contract (GCC)
Section V: Special Conditions of Contract (SCC)
Section VI: Terms of Reference (TOR)
Section VII: Forms and Procedures
Part 1 of 3
Part 2 of 3
Part 3 of 3
Acronyms
BDS Bid Data Sheet
GCC General Conditions of Contract
IFB Invitation for Bids
ITB/ITC Instructions to Bidders/ Consultants
SCC Special Conditions of Contract
TOR Terms of Reference
NTPC LIMITED
(A Government of India Enterprise)
SECTION – I
INVITATION FOR BIDS (IFB)
NTPC Limited
(A Government of India Enterprise)
SSC-C&M, Coal Mining HQ-Ranchi
INVITATION FOR BIDS (IFB)
FOR
PACKAGE: CONSULTANCY FOR DESIGN AND ENGINEERING OF CIVIL WORKS
PERTAINING TO COAL MINING INFRASTRUCTURE AT KERENDARI ‘ A’
(Domestic Competitive bidding basis)
NIT NO./IFB No: 2019_NTPC_22139_1/9900183487 Dated: 05.08.2019
1.0 NTPC invites on-line bids on Single Stage Two Envelope Basis (i.e. Envelope-I:
Techno-Commercial Bid and Envelope-II: Price Bid) from eligible Bidders for aforesaid
package, as per the brief scope of and other details mentioned hereinafter.
2.0 Brief Details
NIT No/ IFB No.
2019_NTPC_22139_1/9900183487
IFB Date
As mentioned at Gepnic portal
Source of IFB
SSC-C&M, Coal Mining HQ-Ranchi
Document Sale Commencement Date
Last Date of receipt of queries from prospective
bidders
Last Date & Time for submission of bids (both
Techno-Commercial and Price) and Bid
Documents sale close date
Techno-Commercial Bid Opening Date & Time
Price Bid Opening Date & Time
Tender Fee in INR
EMD / Bid Security in INR
As mentioned at Gepnic portal
Funding Source
Domestic/Own Resources
Brief Scope of work
The scope of work comprises of
consultancy services pertaining to all
civil, structural, plumbing, electrical, IT,
furnishing, HVAC and any other such
works related to Infrastructure
development of buildings/facilities as
detailed in Terms of Reference at
NTPC coal mining site, Kerendari.
3.0 A complete set of Bidding Documents may be downloaded free of cost by any interested
4.0 Tender Fee and Bid Security (if applicable) shall be submitted in a sealed envelope
separately in physical form by the stipulated closing date and time for bid submission at the
address given below. Any bid without an acceptable Tender Fee and Bid Security (if
applicable) shall be treated as non-responsive by the employer and shall not be opened.
5.0 Qualifying Requirements:
5.1 Technical Criteria:
5.1.1 The Bidder should have carried out consultancy assignment for Civil works pertaining to
Industrial Structures along with associated facilities with either of following:
(i) Single contract of value not less than Rs 96 lakh or
(ii) Two contracts of value not less than Rs 60 Lakh each or
(iii) Three contracts of value not less than Rs 48 Lakh each
5.1.2 The bidder should have structural design software “STAAD” and drafting software “Auto
Cad”, having valid licenses.
Note:
The word “carried out” means the bidder should have completed the specified eligibility criteria
during the preceding seven (7) years as on date of Techno-Commercial bid opening, even if
the contract has been started earlier and /or is not completed/closed.
5.2 Financial Criteria:
5.2.1 The average annual turnover of the bidder, in the preceding (03) financial years as on
date of Techno-Commercial bid opening, should not be less than Rs 120 Lakh.
5.2.2 In case a bidder does not satisfy the financial criteria, stipulated at Cl. 5.2.1 above on
its own, the holding company would be required to meet the stipulated turnover
requirements at Cl.5.2.1 above, provided that the net worth of such holding company
as on the last day of the preceding financial year is at least equal to or more than the
paid- up share capital of the holding company. In such an event, the bidder would be
required to furnish along with its bid, a Letter of Undertaking from the holding company,
supported by Board Resolution, as per the format enclosed in the bid documents,
pledging unconditional and irrevocable financial support for the execution of the
Contract by the bidder in case of award.
In case the bidder is not able to furnish its audited financial statements on standalone
entity basis, the unaudited unconsolidated financial statements of the bidder can be
considered acceptable provided the bidder furnishes the following further documents on
substantiation of its qualification:
i) Copies of the unaudited unconsolidated financial statements of the bidder
along with copies of the audited consolidated financial statements of the
Holding Company.
ii) A Certificate from the CEO/CFO of the Holding Company, as per the format enclosed in
the bid documents, stating that the unaudited unconsolidated financial statements form
part of the Consolidated Annual Report of the company.
5.2.3 In case where audited results for the last financial year as on the date of Techno Commercial
bid opening are not available, the financial results certified by a practicing Chartered Accountant
shall be considered acceptable. In case, bidder is not able to submit the certificate from practicing
Chartered Accountant certifying its financial parameters, the audited results for the three consecutive
financial years preceding the last financial year shall be considered for evaluating the financial
parameters. Further, a certificate would be required from the CEO/CFO as per the format enclosed
in the bid documents stating the financial result of the company are under audit as on the date of
Techno-Commercial bid opening and the certificate from the practicing Charted Accountant
certifying the financial parameters is not available.
NOTES:
(i) Net worth means the sum total of the paid up share capital and free reserves. Free reserve means all
reserves credited out of the profits and share premium account but does not include reserves credited
out of the revaluation of the assets, write back of depreciation provision and amalgamation. Further
any debit balance of Profit and Loss account and miscellaneous expenses to the extent not adjusted
or written off, if any, shall be reduced from reserves and surplus.
(ii) Other income shall not be considered for arriving at annual turnover.
(iii) “Holding Company” and “Subsidiary Company” shall have the meaning ascribed to them as per
Companies Act of India.
6.0 NTPC reserves the right to reject any or all Bids or cancel/withdraw the ‘Invitation for Bids’ without assigning
any reason whatsoever and in such case no Bidder/Intending Bidder shall have any claim arising out of
such action.
7.0 Address for Communication/Location of Bid opening:
Sr. Manager (C&M)/ AGM (C&M)
NTPC Limited
Coal Mining HQ-Chutia, Ranchi, Jharkhand-834002, India.
Mob: +91-9650992373/ 9650992016
Email: hschouhan01@ntpc.co.in/ksudhakar@ntpc.co.in
Websites: https://eprocurentpc.nic.in
Registered Office: NTPC Limited, NTPC Bhawan, SCOPE Complex,
7, Institutional Area, Lodi Road, New Delhi – 110003
Corporate Identification Number: L40101DL1975GOI007966,
Website: www.ntpc.co.in
NTPC LIMITED
(A Government of India Enterprise)
SECTION – II
INSTRUCTIONS TO BIDDERS/CONSULTANTS
CONTENTS
A. INTODUCTION
1.
General Information
2.
Source of Funds & Cost of Bidding
B. THE BIDDING DOCUMENTS
3.
Content of Bidding Documents
4.
Clarification on Bidding Documents
5.
Amendment to Bidding Documents
C. PREPARATION OF BIDS
6.
Language of Bid
7.
Documents comprising of the Bid
8.
Bid Form (Price Bid) and Price Schedules
9.
Bid Prices
10.
Bid Currencies
11.
Bid Security
12.
Period of Validity of Bids (Techno-Commercial Bid and Price Bid)
13.
Format and Signing of Bid
D. SUBMISSION OF BIDS
14.
Submission of Bids
15.
Deadline for Submission of Bids
16.
Modification and Withdrawal of Bids.
E. BID OPENING AND EVALUATION
17.
Opening of Bids
18.
Clarification on Bids
19.
Preliminary Examination of Techno-Commercial Bids
20.
Deleted
21.
Evaluation of Techno-Commercial Bids
22.
Clarification Meeting
23.
Preliminary Examination of Price Bid
24.
Conversion to Single Currency
25.
Evaluation of Price Bid
26.
Contacting the Employer
F. AWARD OF CONTRACT
27.
Award Criteria
28.
Employer’s Right to accept any Bid and to reject any or all Bids
29.
Notification of Award
30.
Performance Security
31.
Ineligibility for participation in re-tender
32.
Corrupt or Fraudulent Practices
33.
Fraud Prevention Policy
34.
Conflict of Interest
35.
Policy for Withholding and Banning of Business Dealings
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
INSTRUCTIONS TO BIDDERS/CONSULTANTS
A. Introduction
General Information
NTPC Limited, A Govt. of India Enterprise referred to herein as “the Employer” intends to
engage a consultant for providing Consultancy Services for the Package named in IFB in
line with Terms of Reference covering scope of work, special requirement etc. as
detailed in the Bidding Documents. The prospective Bidders/Consultants are advised to
submit a “Techno-Commercial Bid” and Price Bid” for the package. Methodology for
submission of bid has been detailed out in this section of Bidding Documents.
Source of Funds & Cost of Bidding
Source of Funds
Employer as defined in the Bid data Sheet(BDS) intends to finance the package named in
the Bid Data Sheet (BDS), through own resources.
Cost of Bidding
The Bidder/Consultant shall bear all costs associated with the preparation and
submission of its bid, and the Employer will in no case be responsible or liable for these
costs, regardless of the conduct or outcome of the bidding process.
B. The Bidding Documents
Content of Bidding Documents
The services required, bidding procedures, evaluation criteria, contract terms and
technical requirements are prescribed in the Bidding Documents. The Bidding
Documents include the following sections:
Section I – Invitation for Bids (IFB)
Section II – Instructions to Bidders/Consultants (ITB/ITC)
Section III – Bid Data Sheet (BDS)
Section IV – General Conditions of Contract (GCC)
Section V – Special Conditions of Contract (SCC)
Section VI – Terms of Reference (TOR)
Section VII – Forms and Procedures (FP) (in Three Parts)
Section-VII (Part 1 of 3)
Bid Form (Techno-Commercial Bid)
Section-VII (Part 2 of 3)
Bid Form (Price Bid)
Section-VII (Part 3 of 3)
1. Bid Security Form - Bank Guarantee
2a. Bid Security Form - Letter of Credit
2b. Form of Notification by the Employer to the Consultant
3. Forms of Notification of Award/ Letter of Award
4. Performance Security Form
5. Form of Completion Certificate
6. Form of Bank Guarantee Verification Check Lists
7. Form of Extension of Bank Guarantee
8. Form of Contract Agreement
9. Form of Deed of Joint Undertaking (JDU):NA
The Bidder/Consultant is expected to examine all instructions, forms, terms, conditions,
specifications and other information provided in the Bidding Documents. Failure to furnish
all information required as per the Bidding Documents or submission of a bid not
substantially responsive to the Bidding Documents in every respect will be at the
Bidder’s/ Consultant’s risk and may result in rejection of its bid.
Transfer of Bidding Documents by one prospective Bidder/ Consultant to another is not
permissible.
Clarification on Bidding Documents
A prospective Bidder/ Consultant requiring any clarification to the Bidding Documents
may notify the Employer through e-mail or in writing by post at the address indicated in
Bid Data Sheet (Section-III) of Bidding Documents. The request for clarification must
reach to Employer within the date specified in IFB (Section-I). The Employer will respond
to any request for clarification or modification of the Bidding Documents that it receives
no later than the date notified in the detailed IFB. The Employer will publish the
Clarifications and Bidder/ Consultant can view these Clarifications once they are
published under corrigendum/ Clarification tab. Bidder/ Consultant shall be notified
through e-mail regarding posting of Clarification.
The Bidders/ Consultants are advised to visit and examine the site where the services
are to be provided and its surroundings and obtain for itself on its own responsibility all
information that may be necessary for preparing the bid and entering into a contract for
Consultancy work. The costs of visiting the site shall be borne fully by the Bidder/
Consultant.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
The Bidder/ Consultant and any of its personnel or agents will be granted permission by
the Employer to enter upon its premises and lands for the purpose of such inspection, but
only upon the express condition that the Bidder/ Consultant, its personnel and agents will
release and indemnify the Employer and its personnel and agents from and against all
liability in respect thereof and will be responsible for death or personal injury, loss of or
damage to property and any other loss, damage, costs and expenses incurred as a result
of the inspection.
Amendment to Bidding Documents
At any time prior to the deadline for submission of bids, the Employer may, for any
reason, whether at its own initiative, or in response to a clarification requested by a
prospective Bidder/ Consultant, amend the Bidding Documents.
The amendment will be posted in clarification or corrigendum tab and Bidder/ Consultant
can view these amendments once they are published. It is the responsibility of Bidder/
Consultant to check online publishing of any amendment by the Employer. The Employer
may also notify through e-mail based on request of Bidders/ Consultants. The
amendment, if any by the Employer, will be binding on Bidders/ Consultants and it will be
assumed that the information contained therein will have been taken into account by the
bidder in its bid.
In order to afford prospective Bidder/ Consultant reasonable time to take the amendment
into account in preparing their bid, Employer may, at its discretion, extend the deadline
for the submission of bids.
C. Preparation of Bids
Language of Bid
The bid prepared by the Bidder/ Consultant and all correspondence and documents
related to the bid exchanged between the Bidder/ Consultant and Employer shall be
written in English language, provided that any printed literature furnished by the Bidder/
Consultant may be written in another language, as long as such literature is accompanied
by a translation of its pertinent passages in English language in which case, for purposes
of interpretation of the bid, the translation shall govern.
The English Translation of the documents shall be carried out by professional translators
and the translator shall certify that he is proficient in both languages in order to translate
the document and that the translation is complete and accurate. Further, translation shall
be authenticated by the Indian Consulate located in the Country where the documents
have been issued or the Embassy of that Country in India.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
Documents Comprising the Bid
The Bid shall comprise of the following components:
Techno-Commercial Bid
The Techno-Commercial bid comprises of the following two categories of documents:
Documents to be submitted in physical form in separate sealed envelope (s) duly marked
in accordance with ITB/ITC clause 14:
(a) Attachment 1: Bid Security and Tender Fee (If applicable)
Bid security (If applicable) shall be furnished in accordance with ITB/ITC Clause
11.
Tender Fee If applicable) shall be furnished in the form of Demand Draft/Banker’s
Cheque and also through online remittance. For online remittance, ITB/ITC Clause
No.11.2 shall be referred.
(b) Attachment 2: Power of Attorney
A power of attorney, duly notarized by a Notary Public, indicating that the person
signing the bid has the authority to sign the bid and that the bid is binding upon
the bidder during the full period of its validity in accordance with ITB/ITC
Clause 12.
(The Authority of the person issuing the Power of Attorney shall also be
submitted).
Documents to be submitted online through e-tender mode:
The Bid Form (Techno-Commercial Bid) as per Section-VII, Part 1 of 3, duly completed
together with the following attachments shall be uploaded with Techno-Commercial Bid:
(a) Attachment 3 : Bidder’s Qualification
The bidders are required to fill up the data/details in Attachment 3 in support of
meeting their qualifying requirements stipulated in Item No. 3.0 of Bid Data
Sheet. All necessary and relevant documents shall also be attached in support
of meeting the qualifying requirements.
(b) Attachment 4: Methodology of Execution
Methodology proposed to be adopted while executing the consultancy
assignment under the package.
(c) Attachment 5: A copy of GST Registration Certificate. (Applicable in case
of Indian Consultants)
(d) Attachment 6: Key Personnel Data
Details of Key Personnel proposed to be deployed / engaged for the consultancy
assignment
(e) Attachment 7: Organization Structure
Organization Structure proposed for the consultancy assignment
(f) Attachment 8: Additional Information
Additional information, the Consultant wishes to provide in his bid
(g) Attachment 9: EFT Form
Electronic Fund Transfer Form duly filled in as per Employer’s format.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
The Techno-Commercial Bid should not contain any price content entry. In case,
the Techno-Commercial Bid is found to contain any price content, such bid shall
be liable for rejection.
Price Bid
The Price Bid can be submitted online through e-tender portal (www.eprocurentpc.nic.in)
only.
Price Bid should not contain any matter in respect of Technical and / or Commercial
aspects other than the details specifically sought in the Price Bid. If the
Technical/commercial matters indicated in Price Bid are found to be in contradiction with
the details furnished in Techno-Commercial Bid, the details furnished in Techno-
Commercial Bid shall prevail.
Bid Form (Price Bid) and Price Schedules
The Bidder/ Consultant shall complete the Bid Form (Price Bid) and the appropriate Price
Schedules furnished in the Bidding Documents as indicated therein, following the
requirements of ITB/ITC Clauses 9 and 10.
Bid Prices
Bidder/Consultant shall quote for the entire services on a “single responsibility” basis such
that the total bid price covers all the Bidder’s/ Consultant’s obligations mentioned in or to
be reasonably inferred from the Bidding Documents. This includes all requirements under
the bidder’s responsibilities as specified in the Bidding Documents.
Consultants are required to quote the Lump-sum price for all the commercial, contractual
and technical obligations outlined in the bidding documents. The above quoted Lump
sum price shall be firm and shall remain valid for the entire period of the consultancy
assignment. The above quoted Lump-sum price shall include all taxes, duties & levies
(except applicable Goods and Service Tax on direct transactions between the Bidder and
NTPC), insurance charges, licence fees, surcharges on taxes and duties etc. payable
under this consultancy assignment. The aforesaid price shall include all man-month
charges, equipment charges, travel expenses, administrative charges, laboratory
charges, documentation charges, internet, telephone charges, conferencing charges,
drawing/drafting/printing charges and any other incidental charges for successful
completion of the work. The Goods and Service Tax on direct transactions between the
Bidder and NTPC shall be payable extra as applicable.
The aforesaid price shall include all man-month charges, equipment charges, travel
expenses, administrative charges, laboratory & testing charges, documentation charges,
internet, telephone charges, conferencing charges, drawing/drafting/printing charges and
any other incidental charges for successful completion of the work. The total Lump-sum
price shall be filled up in the prescribed BOQ excel Sheet at e-tender website. The
applicable Goods and Service Tax on direct transactions between the Bidder and NTPC
shall be quoted at prescribed place in abovementioned BOQ excel Sheet.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
BLANK PAGE
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
Price Basis
Prices quoted by the Bidder/ Consultant shall remain fixed for the entire duration of the
Consultancy Assignment.
Bid Currencies
Bidders shall quote all prices in Indian Rupees only.
Bid Security
The Bidder/ Consultant shall furnish, as part of its bid, a Bid Security in a separate
envelope in the amount and currency as stipulated in the Bid Data Sheet.
The Bid Security shall, at the Bidder’s/ Consultant’s option, be in the form of a Demand
Draft, Banker’s Cheque, Bank Guarantee from any of the banks specified in Bid Data
Sheet. The Demand Draft in Indian Currency shall be in favour of “NTPC Limited”
payable at “Hazaribag”. The format of the Bank Guarantee or Letter of Credit shall be in
accordance with the form of Bid Security included in the Bidding Documents. Bid Security
shall remain valid for a period of forty five (45) days beyond the original Bid Validity
period and beyond any extension of bid validity subsequently requested under ITB/ITC
Sub-clause 12.2.
The Bid Security in Original shall be submitted in a separate sealed envelope
before the stipulated bid submission closing date and time. In case acceptable Bid
Security in a separate sealed envelope is not received then online Bid shall be
rejected by the Employer as being non-responsive and shall not be opened.
The Bid Security of all the unsuccessful Bidders/ Consultants will be returned as promptly
as possible, but not later than twenty-eight (28) days after the expiration of the bid validity
period.
The Bid Security of the successful Bidder/ Consultant to whom the contract is awarded
will be returned when the said Bidder/ Consultant has furnished the required
Performance Security pursuant to ITB/ITC Clause 30.
The Bid Security may be forfeited
(a) if the Bidder/ Consultant withdraws or varies its Bid during the period of Bid
Validity.
(b) if the Bidder/ Consultant does not withdraw any deviation, variation and
additional condition to the provisions of Bidding Documents read in conjunction
with its amendment/errata/clarification mentioned anywhere in the bid without any
price implication whatsoever to the Employer.
(c) In the case, a successful Bidder/ Consultant fails within the specified time limit to
furnish the required Contract Performance Security, in accordance with ITB/ITC
Clause 30.
(d) If the Bidder/ Consultant /his representatives commit any fraud while competing
for this contract pursuant to Fraud Prevention Policy of Employer.
(e) In the case, a successful Bidder/ Consultant fails to sign the Contract Agreement
within 28 days of receipt of Notification of Award.
Period of Validity of Bids (Techno-Commercial Bid and Price Bid)
Bids shall remain valid for a period of 180 days from the Techno-Commercial Bid opening
date prescribed by Employer for the receipt of bids, pursuant to ITB/ITC Clause 15. A bid
valid for a shorter period shall be rejected by Employer as being non-responsive.
In exceptional circumstances, the Employer may solicit the Bidder’s/ Consultant’s
consent to an extension of the bid validity period. The request and responses thereto
shall be made in writing by post or by telefax or by e-mail. If a Bidder/ Consultant accept
to extend the period of bid validity, the validity of bid security shall also be suitably
extended. A Bidder/ Consultant may refuse the request without forfeiting its bid security.
A Bidder/ Consultant granting the request will not be required nor permitted to modify its
bid.
Format and Signing of Bid
The bid including all documents shall be digitally certified using Class-III signature by a
duly authorized representative of the Bidder/ Consultant to bind him to the contract. The
authorization shall be indicated by written power of attorney as per ITB/ITC Clause 7.1.1
(b) and shall be submitted in Hard copy prior to date and time for opening of Techno-
Commercial bid.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
D. Submission of Bids
Submission of Bids
Bid shall be submitted through e-tender mode in the manner specified elsewhere in
Bidding Documents. No Manual/ Hard Copy of the Bid shall be acceptable.
Consultant should note that no zip file is to be uploaded online. Further file related
to particular Attachment/Schedule including their annexures/appendices, if any,
shall be given name of that Attachment/Schedule only.
Documents to be submitted in physical form (as brought out at ITB/ITC Clause 7.1.1)
shall be sealed and marked in the following manner:
(i) The bid security furnished in accordance with ITB/ITC Clause 11 shall be sealed
in a separate envelope duly marking the envelope as "ATTACHMENT-1: BID
SECURITY".
(ii) The power of attorney furnished in accordance with ITB/ITC Clause 7.1.1(b) shall
be sealed in a separate envelope duly marking the envelope as "ATTACHMENT-
2 : POWER OF ATTORNEY".
The envelopes shall then be sealed in an outer envelope.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
The inner and outer envelopes shall:
(a) be addressed to the Employer at the address given in the Bid Data Sheet, and
(b) bear the Package name indicated in the Bid Data Sheets, the Invitation for Bids
number indicated in the Bid Data Sheet, and the statement "DO NOT OPEN
BEFORE [date]," to be completed with the time and date specified in the Bid Data
Sheet, pursuant to ITB/ITC Clause 15.
The inner envelopes shall also indicate the name and address of the Consultant.
If the outer envelope is not sealed and marked as required by ITB/ITC Sub-Clause 14.2
above, the Employer will assume no responsibility for its misplacement.
Deadline for Submission of Bids
Bids must be submitted online no later than the time and date stated in the Bid Data
Sheet.
Original Bid Security, Deed of Joint Undertaking and Power of Attorney shall be
submitted in physical form before stipulated bid submission time at the address specified
in Bid Data Sheet. The Employer shall not be liable for loss/non-receipt/late receipt of
above documents in postal transit.
Employer may, at its discretion, extend this deadline for submission of bids by amending
the Bidding Documents in accordance with ITB/ITC Sub-Clause 5.3, in which case all
rights and obligations of the Employer and Consultants will thereafter be subject to the
deadline as extended.
Late Bid: Not Applicable
Modification and Withdrawal of Bids
The Bidder/ Consultant may modify or withdraw its bid after submission.
The Bidder/ Consultant can modify its bid any number of times before the deadline of bid
submission.
Bidder/ Consultant can withdraw its bid before the deadline for bid submission but bid once
withdrawn cannot be re-submitted.
No bid may be withdrawn in the interval between the bid submission deadline and the
expiration of the bid validity period specified in ITB/ITC Clause 12. Withdrawal of a bid
during this interval may result in the Consultant’s/Bidder’s forfeiture of its bid security,
pursuant to ITB/ITC Sub-Clause 11.6.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
E. Bid Opening and Evaluation
Opening of Bids
Techno-Commercial Bid Opening
The Employer will first open Techno-Commercial Bid in the presence of Bidders’/
Consultants’ representatives who choose to attend the opening at the time, on the date
and at the place specified in the Bid Data Sheet. In the event of the specified date for the
opening of bids being declared a holiday for Employer, the bids will be opened at the
appointed time on the next working day. All important information and other such details,
the Employer, at its discretion, may consider appropriate, will be announced at the
opening.
In case requisite Bid Security and Tender Fee (if applicable) are not submitted
before the stipulated bid submission closing date and time, then Bid shall be
rejected by Employer as being non-responsive and shall not be opened.
The Price Bid will remain unopened and the date and time for opening of price bids shall
be intimated separately by the Employer after completion of evaluation of Techno-
Commercial Bids.
Price Bid Opening
After the evaluation process of Techno-Commercial bid is completed, Employer will
inform in writing the eligible Bidders/ Consultants regarding date and time set for the
opening of Price Bid. Bidders/ Consultants, whose Techno-Commercial Bid is not
substantially responsive, shall also be informed in writing and their Price Bid will be
rejected and shall not be opened and their bid security shall be returned prior to opening
of Price Bid.
Price bids of those Bidders/ Consultants, whose Techno-Commercial Bids are found to
be responsive, will be opened online.
The Bidders/ Consultants who have been considered Techno-Commercial successful will
be able to view the bid prices of all the Bidders/ Consultants after online financial
evaluation of Price Bids by Employer.
Clarification on Bids
During bid evaluation, Employer may, at its discretion, ask the Consultant for a
clarification of its bid. The request for clarification and the response shall be in writing,
and no change in the price or substance of the bid shall be sought, offered or permitted.
Preliminary Examination of Techno-Commercial Bids
Employer will examine the bids to determine whether they are complete, whether
required securities have been furnished, whether the documents have been properly
signed and whether the bids are generally in order.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
Employer will determine whether each Techno-Commercial bid is of acceptable quality, is
generally complete and is substantially responsive to the Bidding Documents. For the
purpose of this determination, a substantially responsive bid is one that conforms to all
the terms, conditions and specifications of the bidding documents without material
deviations, objections, conditionalities or reservations. A material deviation, objection,
conditionality or reservation is one (i) that affects in any substantial way the scope, quality
or performance of the contract; (ii) that limits in any substantial way, inconsistent with the
bidding documents, the Employer’s rights or the successful Bidder’s/ Consultant’s
obligations under the contract; or (iii) whose rectification would unfairly affect the
competitive position of other Consultants who are presenting substantially responsive
bids.
No deviation, whatsoever, is permitted by the Employer to any provisions of Bidding
Documents. The Bidders/ Consultants are advised that while making their bid proposals
and quoting prices, all conditions may appropriately be taken into consideration. Bidders/
Consultants shall certify their compliance to the complete Bidding Documents through e-
tendering mode by accepting the following attribute under GTE (General Technical
Evaluation) in Main Screen of Bid Invitation:
“Do you certify full compliance to all provisions of Bid Doc?”
Acceptance of above attribute shall be considered as Consultant's confirmation that any
deviation to the any Provisions found anywhere in their Bid Proposal, implicit or explicit,
shall stand unconditionally withdrawn, without any cost implication whatsoever to the
Employer, failing which the bid security shall be forfeited.
Employer’s determination of a bid’s responsiveness is to be based on the contents of the
bid itself without recourse to extrinsic evidence. If a bid is not substantially responsive, it
will be rejected by Employer, and may not subsequently be made responsive by the
Bidder/ Consultant by correction of the nonconformity
[NOT USED]
Evaluation of Techno-Commercial Bids
Employer will, however, carry out a detailed evaluation of the Techno-Commercial bids
previously determined to be substantially responsive in order to determine whether the
technical aspects are in accordance with the requirements set forth in the Bidding
Documents. In order to reach such a determination, Employer will examine and compare
the technical aspects of the bids on the basis of the information supplied by the Bidders/
Consultants taking into account the following factors:
(a) overall completeness and compliance with the terms and conditions of the
Bidding Documents. The bid that does not meet minimum acceptable standards
of completeness, consistency and detail will be rejected for non-responsiveness.
(b) Any other relevant factors listed in the Bid Data Sheet, General Conditions of
Contract, Special Conditions of Contract and Instruction to Consultants, or that
Employer deems necessary or prudent to take into consideration.
The Techno-Commercial Evaluation of bids shall be carried out by the Employer based
on Bidders/ Consultants meeting Qualifying Requirements stipulated at Item No. 3.0 of
Bid Data Sheet.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
Bidder/ Consultant may note that deviations, variations and additional conditions etc.
found elsewhere in the bid, shall not be given effect to in evaluation and it will be
assumed that the Bidder/ Consultant complies to all the conditions of Bidding
Documents. In case the Bidder/ Consultant refuses to withdraw deviations implicit or
explicit found anywhere in the bid, without any financial implication whatsoever to the
Employer, the bid security shall be forfeited.
[NOT USED]
Preliminary Examination of Price Bid
The Employer will examine the Price bids to determine whether they are complete,
whether any computational errors have been made, and whether the bids are generally
in order.
Conversion to Single Currency: NOT APPLICABLE
Evaluation of Price Bid
The bids of bidders meeting the qualifying criteria specified at Item no 3.0 of BDS shall only
be considered for further evaluation. The evaluation shall be based on the evaluated cost
of fulfilling the contract in compliance with all commercial, contractual and technical
obligations under this Bidding Document. The Employer's evaluation of a bid will also take
into account the GST specified by the Bidder in its Bid, which will be added to each
Bidder's bid price to arrive at an "Evaluated Bid Price”.
Contacting the Employer
Subject to ITB/ITC Clause 18, no Bidder/ Consultant shall contact Employer on any
matter relating to its bid, from the time of the opening of bids to the time the contract is
awarded.
Any effort by a Bidder/ Consultant to influence Employer in Employer’s bid evaluation,
bid comparison or contract award decisions may result in rejection of the Consultant’s
bid.
F. Award of Contract
Award Criteria
Subject to ITB/ITC Clause 28, the Employer will award the contract to the successful
Consultant whose bid has been determined to be substantially responsive with lowest
evaluated bid price shall be considered for award.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
The Bidder/ Consultant will be required to comply with all requirements of the Bidding
Documents without any extra cost to the Employer, failing which his bid security will be
forfeited.
[NOT USED]
The services covered in this Bidding Documents are required to be completed within the
period named in the Bid Data Sheet after the effective date specified in the Letter of
Award. Bidder/ Consultant are required to base their prices as per the time schedule
given in the Bid Data Sheet. No credit will be given for earlier completion.
Employer’s Right to Accept Any Bid and to Reject Any or All Bids
Employer reserves the right to accept or reject any bid, and to annul the bidding process
and reject all bids at any time prior to award of contract, without thereby incurring any
liability to the affected Bidder/ Consultant or Bidders/ Consultants or any obligation to
inform the affected Bidder/ Consultant or Bidders/ Consultants of the grounds for
Employer’s action.
Letter of Award
Prior to the expiration of the period of bid validity, the Employer will notify the successful
Bidder/ Consultant in writing by registered letter or by telefax or by e-mail to be confirmed
in writing by registered letter, that its bid has been accepted. The Letter of Award will
constitute the formation of the contract.
Upon the successful Bidder’s/ Consultant’s furnishing of the performance security
pursuant to ITB/ITC Clause 30, Employer will promptly notify each unsuccessful Bidder/
Consultant and will discharge its bid security, pursuant to ITC Sub-Clause 11.4.
Performance Security
Within twenty-eight (28) days after receipt of the Letter of Award, the successful Bidder/
Consultant shall furnish performance security for ten percent (10%) of Contract Price in
the form provided in the section "Forms and Procedures" of the Bidding Documents.
Failure of the successful Bidder/ Consultant to comply with the requirements of ITB/ITC
Clause 29 or Clause 30 shall constitute sufficient grounds for the annulment of the award
and forfeiture of his bid security.
The Bank Guarantee submitted towards Performance Security shall be essentially from
any of the Banks listed in Annexure-I to SCC. In case of guarantees issued by branches
outside India from foreign bank, the bank guarantee shall be routed through the
correspondent Bank in India for due verification of signatures of the executant.
The Bank guarantee submitted from within India towards Performance Security shall be
issued on Non-Judicial Stamp Paper of appropriate value as per Stamp Act prevailing in
the State(s) where the BG is submitted or is to be acted upon or the rate prevailing in the
State where the BG is executed whichever is higher.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
Where a BG issued by a Bank outside India also needs to bear Stamp Duty of
appropriate value applicable to the place in NTPC where BG is to be submitted, the BG
will be adjudicated from Collector of Stamps, within 3 months of arrival of BG in India and
the expenses incurred in this regard shall be recovered from the Consultant. (applicable
for International Competitive Bidding tenders only)
Ineligibility for participation in re-tender
"Notwithstanding the provisions specified in ITB/ITC Sub-Clause 11.6, if a Bidder/
Consultant after having been issued the Letter of Award, does not submit an acceptable
Performance Security pursuant to ITB/ITC Clause 30, and which result in tender being
annulled then such Bidder/ Consultant shall be treated ineligible for participation in re-
tendering of this particular package."
Corrupt or Fraudulent Practices
Employer requires that Bidders/ Consultants observe the highest standard of ethics
during the procurement and execution of the contracts. In pursuance of this policy,
Employer :
(a) defines, for the purposes of this provision, the terms set forth below as follows :
(i) "corrupt practice" means the offering, giving, receiving or soliciting of
anything of value to influence the action of a public official in the
procurement process or in contract execution; and
(ii) "fraudulent practice" means a misrepresentation of facts in order
to influence a procurement process or the execution of a contract to the
detriment of the Employer, and includes
collusive practice among Bidder/ Consultant (prior to or after bid
submission) designed to establish bid prices at artificial non-competitive
levels and to deprive the Employer of the benefits of free and open
competition;
(b) will reject a proposal for award if it determines that the Consultant recommended
for award has engaged in corrupt or fraudulent practices in competing for the
contract in question;
(c) will declare a firm ineligible, either indefinitely or for a stated period of time, to be
awarded a contract if it at any time determines that the firm has engaged in
corrupt or fraudulent practices in competing for or in executing a contract of the
Employer.
Furthermore, Consultants shall be aware of the provision stated in Clause 63 of the
General Conditions of Contract.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
Fraud Prevention Policy
The Bidder/ Consultant shall strictly adhere to the Fraud Prevention Policy of Employer
displayed on its tender website http://www.ntpctender.com and shall immediately
apprise Employer about any fraud or suspected fraud as soon as it comes to their notice.
Compliance to the “Fraud Prevention Policy” of NTPC has to be confirmed by accepting
the following attribute in General Data of Process/Display Bid screen at NTPC e-tender
site:
“ACCEPTANCE OF FRAUD PREVENTION POLICY OF NTPC”
If in terms of above policy it is established that the Bidder/ Consultant /his representatives
have committed any fraud while competing for this contract then the bid security of the
Bidder/ Consultant shall be forfeited.
Conflict of Interest
The Bidder/ Consultant is required to provide professional, objective, and impartial
advice, at all times holding the Employer’s interests paramount, strictly avoiding conflicts
with other assignments or its own corporate interests, and acting without any
consideration for future work.
The Bidder/ Consultant has an obligation to disclose to the Employer any situation of
actual or potential conflict that impacts its capacity to serve the best interest of Employer.
Failure to disclose such situations may lead to the disqualification of the Consultant or the
termination of its Contract.
Without limitation on the generality of the foregoing, the Bidder/ Consultant shall not be
hired under the circumstances set forth below:
a) Conflicting activities
Conflict between consulting activities and procurement of goods, works or
non-consulting services: a firm or any of its Affiliates that have been engaged by
the Employer to provide goods, works, or non-consulting services for a project(s)
shall be disqualified from providing consulting services resulting from or directly
related to those goods, works, or non-consulting services. Conversely, a firm or any
of its Affiliates hired to provide consulting services for the preparation or
implementation of a project, shall be disqualified from subsequently providing goods
or works or non-consulting services resulting from or directly related to the consulting
services for such preparation or implementation.
b) Conflicting assignments
Conflict among consulting assignments: a Bidder/ Consultant (including its
Experts and Sub-consultants) or any of its Affiliates shall not be hired for any
assignment that, by its nature, may be in conflict with another assignment of the
Bidder/ Consultant for the same or for another Client.
INSTRUCTIONS TO BIDDERS/CONSULTANTS (ITB/ITC)
c) Conflicting relationships
Relationship with the Employer’s staff: a Bidder/ Consultant (including its Experts
and Sub-consultants) that has a close business or family relationship with a
professional staff of the Employer who are directly or indirectly involved in any part of
(i) the preparation of the Terms of Reference for the assignment, (ii) the selection
process for the Contract, or (iii) the supervision of the Contract, may not be awarded
a Contract, unless the conflict stemming from this relationship has been resolved in a
manner acceptable to the Employer throughout the selection process and the
execution of the Contract.
Policy for Withholding and Banning of Business Dealings
The Employer has in place a Policy for withholding and Banning of Business dealings as
enclosed at Annexure-I to GCC of the Bidding Documents. Business dealings may be
withheld or banned with the Bidder/ Consultant on account of any of the grounds and
following the procedures as detailed in the said Policy for withholding and Banning of
Business Dealings.
Compliance to the “Policy for Withholding and Banning of Business Dealings” as
indicated in the General Conditions of Contract (Section-IV) has to be confirmed by
accepting the following attribute in General Data of Process/Display Bid screen at NTPC
e-tender site:
“Do you accept Withholding & Banning of Business Dealing Policy”
Acceptance to the above attribute shall construe that the Bidder/ Consultant has read the
contents of the Banning Policy of NTPC attached with this Bidding Document and agrees
to abide by this policy. Further, in terms of requirement under Banning policy, the
Consultant, by accepting the above attribute, also declares the following:
a) The Bidder/ Consultant have not been Banned/Blacklisted as on date of submission
of bid by Ministry of Power or Government of India.
b) The Bidder/ Consultant have not employed any public servant dismissed/removed or
person convicted for an offence involving corruption or abetment of such offences.
c) The Bidder’s/ Consultant’s Director(s)/Owner(s)/Proprietor/Partner(s) have not been
convicted by any court of law for offences involving corrupt and fraudulent practices
including moral turpitude in relation to business dealings with Government of India or
NTPC or NTPC’s group companies during the last five years.
By accepting the above attribute, the Bidder/ Consultant also accepts that if at any point
subsequent to award of Contract, the declarations given above are found to be incorrect,
NTPC Limited shall have the full right to terminate the Contract and take any action as
per applicable laws for breach of contract including forfeiture of Bid Security/Performance
Security.
NTPC LIMITED
(A Government of India Enterprise)
SECTION – III
BID DATA SHEET (BDS)
ITB/ITC
Clause
Ref., if any
DATA
SECTION - III
BID DATA SHEET (BDS)
NAME OF PACKAGE :Refer Section-I (IFB)
The following bid specific data for the consultancy services to be procured shall amend and/or
supplement the provisions in the Instructions to Consultants (ITC/ITB). Whenever there is a
conflict, the provisions herein shall prevail over those in the ITC.
Instructions
Related to
E –Tendering
ITB/ITC 1
ITB/ITC 4.1
A. INTRODUCTION
Consultants are required to go through the Guidelines
provided at following e-tendering site (Gepnic portal):
https:/eprocurentpc.nic.in
Name of the Employer: NTPC Limited
Name of the Package : Refer Section-I (IFB)
B. THE BIDDING DOCUMENTS
Address of Employer: NTPC Limited,
Contracts & Materials (C&M), Coal
Mining HQ, Chutia, Ranchi-Jharkhand-
834002-India.
Corporate Office : NTPC Bhawan, SCOPE Complex,
7, Institutional Area, Lodhi Road
New Delhi – 110003.
Telephone no./Mobile/ E-Mail:
Refer Section-I (IFB):
BDS
Item
No.
ITB/ITC
Clause
Ref., if
any
DATA
C. PREPARATION OF BIDS
3.0
3.1
3.2
3.3
ITB/ITC 7.1.2
(a)
Qualifying Requirement is placed at Section-I (IFB)
Notwithstanding anything stated in Qualifying Requirement, the
Employer reserves the right to assess the capabilities and capacity of
the Bidder / his collaborators/associates/subsidiaries/group companies
to perform the contract, should the circumstances warrant such
assessment in the overall interest of the Employer.
NTPC reserves the right to reject any or all Bids or cancel/withdraw the
‘Invitation for Bids’ without assigning any reason whatsoever and in
such case no Bidder/Intending Bidder shall have any claim arising out
of such action.
Bids not meeting the requirements as stated in Qualifying
Requirement shall be rejected.
ITB/ITC
Clause
Ref., if any
DATA
Bidders are required to furnish the details of the past
experiences based on which selection is to be made as
per format enclosed in the bidding documents for the
same and enclose relevant documents like copies of
authentic work order, completion certificate, agreements
etc. supporting the details/data provided in the format. No
claims without supporting documents shall be accepted in
this regard. However if any of the reference work pertains
to the Contract(s)/Works executed by Bidder for NTPC in
the past then in respect of such Contract(s)/Works Bidder
shall not be required to enclose Client Certificate (s)
along with its bid.
The Employer also reserves the right to access the
capacity and capability of the bidder/collaborator/
proposed assignee to satisfactory executes the contract.
Such assessment shall include but not limited to the
evaluation of adequacy of facilities services, resources,
design/engineering capacity & financial capability.
a) Whether Joint Ventures are Permitted : No
b) Whether Associate and Collaborator permitted: No
The reference plants whose details have been declared
as per the specified format in the relevant attachment [i.e
Attachment No.3 shall only be considered to ascertain
the bidder's compliance to the specified Qualifying
Requirement (QR). Bidders wishing to provide additional
reference plants are required to declare the same in
similar format which shall be additionally attached.
However, bidders are not permitted to quote more than
three times the number of plants/works as specified in the
Qualifying Requirements.
The Employer at its discretion may seek any clarification
and/or documentary evidence only for the reference
plants as mentioned above. However, no change or
substitution of the reference plants by new/additional
plant for conforming to the specified Qualifying
Requirement shall be sought, offered or permitted.
C. PREPARATION OF BIDS
ITB/ITC 11.1
(a) Amount of Bid Security: Refer Section-I (IFB)
(b) Period of validity of Bid Security: 45 days beyond
expiry of the validity of bid, i.e. 225 days from the
deadline for submission of Techno-Commercial bid.
D. SUBMISSION OF BIDS
ITB/ITC 14.2
The documents to be furnished in physical form shall be
submitted at the address of communication mentioned at
Section-1 (IFB)
ITB/ITC 15.1
Deadline for Bid Submission- 1400 hrs. (IST) up to date as
stated in the IFB/any subsequent communication from the
Employer.
E. BID OPENING AND EVALUATION
ITB/ITC 17.0
Location of Bid Opening: Refer Section-I (IFB)
Date and Time for Bid Opening:
Please refer Section-I (IFB) /any subsequent communication
from the Employer.
ITB/ITC 24.0
Currency chosen for purpose : Indian Rupees
of evaluation
ITB/ITC 27.3
Time to complete the consultancy services shall be specified
in Section-VI, Terms of Reference.
ITB/ITC 11.1 &
ITB/ITC 30.3
Confirmation of BGs (including Bid Security) through
Structured Financial Messaging System (SFMS)/SWIFT
While issuing the physical BGs, the Consultant’s Bank shall
also send electronic message through secure SFMS (for BGs
issued from within India) to Employer’s Beneficiary Bank,
whose details are provided herein below:
i) Bank Name: State Bank of India
ii) Branch: Main Branch
iii) Bank Address: Ravindra Path, Hazaribag-825301
State of Jharkhand, INDIA
iv) IFSC Code: SBIN0000090
ITB/ITC
Clause
Ref., if any
DATA
Annexure-I
SCHEDULED COMMERCIAL BANK LIST FOR SUBMISSION
OF BANK GUARANTEE
A STATE BANK OF INDIA
B NATIONALISED BANKS
1. Allahabad Bank
2. Andhra Bank
3. Bank of India
4. Bank of Maharashtra
5. Canara Bank
6. Central Bank of India
7. Corporation Bank
8. Dena Bank
9. Indian Bank
10. Indian Overseas Bank
11. Oriental Bank of Commerce
12. Punjab National Bank
13. Punjab & Sind Bank
14. Syndicate Bank
15. Union Bank of India
16. United Bank of India
17. UCO Bank
18. Vijaya Bank
19. Bank of Baroda
C SCHEDULED PRIVATE BANKS (INDIAN BANKS)
1. Catholic Syrian Bank
2. City Union Bank
3. Dhanlaxmi Bank Ltd.
4. Federal Bank Ltd
5. Jammu & Kashmir Bank Ltd
6. Karnataka Bank Ltd
7. Karur Vysya Bank Ltd
8. Lakshmi Vilas Bank Ltd
9. Nainital Bank Ltd
10.Kotak Mahindra Bank
11.RBL Bank Limited
12.South Indian Bank Ltd
13.Tamilnad Mercantile Bank Ltd
14.ING Vysya Bank Ltd
15.Axis Bank Ltd.
16.IndusInd Bank Ltd
17.ICICI Bank
18.HDFC Bank Ltd.
19.DCB Bank Ltd
20.Yes Bank Ltd
21.IDFC Bank Limited
22.Bandhan Bank Limited
ITB/ITC
Clause
Ref., if any
DATA
D SCHEDULED PRIVATE BANKS (FOREIGN BANKS)
1. Abu Dhabi Commercial Bank PJSC
2. Bank of America NA
3. Bank of Bahrain & Kuwait B.S.C.
4. Mashreq Bank p.s.c.
5. Bank of Nova Scotia
6. Crédit Agricole Corporate and Investment Bank
7. BNP Paribas
8. Barclays Bank
9. Citi Bank N.A.
10. Deutsche Bank A.G.
11. The HongKong Shangai Banking Corporation Ltd
12. Societe Generale
13. Sonali Bank Ltd.
14. Standard Chartered Bank
15. J.P. Morgan Chase Bank, National Association
16. State Bank of Mauritius Ltd.
17. DBS Bank Ltd.
18. Bank of Ceylon
19. PT Bank Maybank Indonesia TBK
20. A B Bank
21. Shinhan Bank.
22. CTBC Bank Co. Ltd.
23. Mizuho Bank Ltd
24. Krung Thai Bank Public Company Ltd.
25. The Bank of Tokyo-Mitsubishi UFJ Limited.
26. Australia & Newzealand Banking Group Limited
27. Sumitomo Mitsui Banking Corporation
28. American Express Banking Corporation
29. Credit Suisse A.G.
30. FirstRand Bank Ltd.
31. Industrial & Commercial Bank of China Ltd.
32. JSC VTB Bank
33. National Australia Bank
34. Cooperatieve Rabobank U.A.
35. Sberbank
36. United Overseas Bank Ltd.
37. Westpac Banking Corporation
38. Woori Bank
39. The Royal Bank of Scotland plc
40. Doha Bank Qsc
41. Industrial Bank of Korea
42. KEB Hana Bank
43. First Abu Dhabi Bank PJSC
44. Emirates NBD Bank (P.J.S.C)
45. Qatar National Bank SAQ
E OTHER PUBLIC SECTOR BANKS
1. IDBI Bank Ltd
NTPC LIMITED
(A Government of India Enterprise)
SECTION – IV
GENERAL CONDITIONS OF CONTRACT
(GCC)
General Conditions of Contract
A.
General Provisions
1.
Definitions 1.1 The following words and expressions shall have the meanings
hereby assigned to them. Boldface type is used to identify the
defined terms:
a)
“Contract” means the Contract Agreement entered into
between the Employer and the Consultant, together with the
Contract Documents referred to therein; they shall constitute
the Contract, and the term “the Contract” shall in all such
documents be construed accordingly.
b)
“Contract Documents” means the documents listed in Article
1.1 (Contract Agreement) of the Form of Contract Agreement
(including any amendments, clarification & errata thereto).
c)
“GCC” means the General Conditions of Contract hereof.
d)
“SCC” means the Special Conditions of Contract.
e)
“Day” means calendar day of the Gregorian Calendar.
f)
“Month” means calendar month of the Gregorian Calendar.
g)
“Employer” means the person named as such in the SCC
and includes the legal successors or permitted assigns of the
Employer.
h)
“Completion” means the fulfilment of the Services by the
Consultant in accordance with the terms and conditions set
forth in the Contract.
i)
“Completion Date” is the date of actual completion of the
fulfilment of the Services certified by the Employer, in
accordance with GCC Clause 57.1.
j)
“Consultant/Employer's Engineer” is a person who has
submitted a Proposal for providing intellectual and
professional services duly accepted by the Employer; named
as such in the Contract Agreement.
k)
“Contract Price” means the price to be paid for the
performance of the Services, in accordance with GCC Clause
50.1.
l)
“Effective Date” means the date on which this Contract
comes into force pursuant to GCC Clause 18.1.
m)
“Foreign Currency” means any currency other than the
currency of the Employer’s country.
n)
“Intended Completion Date” is the date on which it is
intended that the Consultant shall complete the Services as
specified in the SCC.
o)
“Local Currency” means the currency of the Employer’s
country.
p)
“Party” means the Employer or the Consultant, as the case
may be, and “Parties” means both of them. “Third Party”
means any party other than Employer and Consultant.
q)
“Personnel” means professionals and support staff provided
by the Consultant or by any Sub-Consultant and assigned to
perform the Services or any part thereof.
r)
“Funds” means any funds allocated to the Employer under
Company budget, or loan, grants and credits placed at the
disposal of the Employer.
s)
“Services” means the work to be performed by the
Consultant pursuant to this Contract.
t)
“Sub-Consultant” means any person or entity to
whom/which part of the Services is sub-consulted.
u)
“In Writing” means communicated in written form with proof
of receipt.
v)
"Engineer” or “Engineer-in-Charge” or “E.I.C.” shall mean
the officer appointed in writing by the Employer to act as
“Coordinator” from time to time on behalf of Employer in all
matters pertaining to this Consultancy Contract. “Engineer-in-
Charge” shall be authorized by the Client for supervision,
inspection, scrutiny and approval of some or all of the
services rendered by the Consultant under the Contract
w)
“Goods and Services Tax” or “GST” means taxes
levied under the Central Goods and Services Tax Act,
Integrated Goods and Services Tax Act, and various
State/Union Territory Goods and Services Tax Laws
and applicable cesses, if any under the laws in force
(hereinafter referred to as relevant GST Laws).”
2.
Phased Completion 2.1 If phased completion is specified in the SCC, references in the
GCC to the Services, the Completion Date, and the Intended
Completion Date apply to any Phase of the Services (other
than references to the Completion Date and Intended
Completion Date for the whole of the Services).
3.
Communications and
Notices
3.1
Communications between Parties (notice, request or consent
required or permitted to be given or made by one party to the
other) pursuant to the Contract shall be in writing to the
Authorized Representatives named in the Contract.
3.2
A notice shall be effective when delivered or on the notice’s
effective date, whichever is later
3.3
A party may change its address for notice hereunder by giving the
other party notice of such change of the address.
4.
Governing Law 4.1 The Contract shall be governed by and interpreted in accordance
with laws in force in India. The Courts of Ranchi shall have
exclusive jurisdiction in all matters arising under the
Consultancy Contract.
5.
Governing Language 5.1 Contract shall be written in English. All correspondences and
documents relating to the Contract shall be written in English.
Supporting documents and printed literature that are part of the
Contract may be in another language, as long as such
literature is accompanied by a translation of its pertinent
passages in English language in which case, for purposes of
interpretation, the translation shall govern.
5.2
The English Translation of the documents shall be carried out
by professional translators and the translator shall certify that
he is proficient in both languages in order to translate the
document and that the translation is complete and accurate.
Further, translation shall be authenticated by the Indian
Consulate located in the Country where the documents have
been issued or the Embassy of that Country in India.
6.
Documents Forming
the Contract in Order
of Precedence
5.3
The Consultant shall bear all costs of translation to the
governing language and all risks of the accuracy of such
translation.
6.1
The following documents shall constitute the Contract
between the Employer and the Consultant, and each shall
be read and construed as an integral part of the Contract:
(a)
Letter of Award
(c)
Special Conditions of Contract
(d)
General Conditions of Contract
(e)
Terms of Reference
(f)
The Bid and Price Schedules submitted by the
Consultant.
6.2
In the event of any ambiguity or conflict between the Con-
tract Documents listed above, the order of precedence shall
be the order in which the Contract Documents are listed in
clause 6.1 above
7.
Assignment 7.1 Neither the Employer nor the Consultant shall assign, in whole
or in part, their obligations under this Contract; except with prior
written approval of the Employer.
8.
Eligible Services 8.1 All materials, equipment, plant, and supplies used by the
Consultant and services supplied under the Contract shall have
their origin in the countries, except those as specified in the
SCC.
9.
Commissions and
Fees
10.
& 11.
12. Authorized
Representatives
9.1 The Employer will require the successful Consultants to disclose
any commissions or fees that may have been paid or are to be
paid to agents, representatives, or commission agents with
respect to the selection process or execution of the contract.
The information disclosed must include at least the name and
address of the agent, representative, or commission agent, the
amount and currency, and the purpose of the commission or
fee.
[NOT USED]
12.1
Engineer-in-Charge
If the Engineer-in-Charge is not named in the Contract, then
within fourteen (14) days of the Effective Date, the Employer
shall appoint and notify the Consultant in writing of the name of
the Engineer-in-Charge. The Employer may from time to time
appoint some other person as the Engineer-in-Charge in place
of the person previously so appointed, and shall give a notice
of the name of such other person to the Consultant without
delay. The Employer shall take reasonable care to see that no
such appointment is made at such a time or in such a manner
as to impede the progress of work. The Engineer-in-Charge
shall represent and act for the Employer at all times during the
currency of the Contract. All notices, instructions, orders,
certificates, approvals and all other communications under the
Contract shall be given by the Engineer-in-Charge, except as
herein otherwise provided. All notices, instructions, information
and other communications given by the Consultant to the
Employer under the Contract shall be given to the Engineer-in-
Charge, except as herein otherwise provided.
12.2
Consultant’s Representative
12.2.1
If the Consultant’s Representative is not named in the
Contract, then within fourteen (14) days of the Effective Date,
the Consultant shall appoint the Consultant’s Representative
and shall request the Employer in writing to approve the
person so appointed. If the Employer makes no
objection to the appointment within fourteen (14) days, the
Consultant’s Representative shall be deemed to have been
approved. If the Employer objects to the appointment within
fourteen (14) days giving the reason therefore, then the
Consultant shall appoint a replacement within fourteen (14)
days of such objection, and the foregoing provisions of this
GCC Sub-Clause 12.2.1 shall apply thereto.
12.2.2
The Consultant’s Representative shall represent and act for
the Consultant at all times during the currency of the
Contract and shall give to the Engineer-in-Charge all the
Consultant’s notices, instructions, information and all other
communications under the Contract.
All notices, instructions, information and all other
communications given by the Employer or the Engineer-in-
Charge to the Consultant under the Contract shall be given
to the Consultant’s Representative or, in its absence, its
deputy, except as herein otherwise provided.
The Consultant shall not revoke the appointment of the
Consultant’s Representative without the Employer’s prior
written consent, which shall not be unreasonably withheld. If
the Employer consents thereto, the Consultant shall appoint
some other person as the Consultant’s Representative,
pursuant to the procedure set out in GCC Sub-Clause
12.2.1.
12.2.3
The Consultant’s Representative may, subject to the
approval of the Employer (which shall not be unreasonably
withheld), at any time delegate to any person any of the
powers, functions and authorities vested in him or her. Any
such delegation may be revoked at any time. Any such
delegation or revocation shall be subject to a prior notice
signed by the Consultant’s Representative, and shall specify
the powers, functions and authorities thereby delegated or
revoked. No such delegation or revocation shall take effect
unless and until a copy thereof has been delivered to the
Employer and the Engineer-in-Charge.
Any act or exercise by any person of powers, functions and
authorities so delegated to him or her in accordance with this
GCC Sub-Clause 12.2.3 shall be deemed to be an act or
exercise by the Consultant’s Representative.
11.
Relation between the
Parties
13.1 Nothing contained herein shall be construed as establishing a
relation of master and servant or of principal and agent as
between the Employer and the Consultant. The Consultant,
subject to this Contract, has complete charge of Personnel
and Sub-Consultants, if any, performing the Services and
shall be fully responsible for the Services performed by them
or on their behalf hereunder.
14. Location
14.1
The Services shall be performed at such locations as are
specified in the Contract and, where the location of a Special
task is not so specified, at such locations as the Employer
may approve.
15. Taxes & Duties
15.1
Except as otherwise specifically provided in the contract,
Consultant, shall bear all tax liabilities, duties, Govt. levies
etc. on account of payments made under this Contract. It
shall be the responsibility of the Consultant to submit to the
concerned Indian authorities the returns and all other
concerned documents required for this purpose and to
comply in all respects with the requirements of the laws in
this regard, in time.
15.2
It shall be incumbent upon the Consultant to obtain a
registration certificate as a dealer under GST and other
law(s) relating to levy of tax, duty, cess etc. and necessary
evidence to this effect shall be furnished by the Consultant to
the Employer.
15.3
The Contract Price shall be inclusive of all taxes, duties and
levies, except GST. The GST shall be paid extra as actual.
15.4
If a new tax, duty or levy is imposed or any rate of tax are
increased or decreased under statute or law in India after the
seven (7) days prior to the date of Techno-Commercial bid
opening and the consultant become liable there under to pay
and actually pays the said new tax, duty or levy for bonafide
use on the consultancy work contracted, the same shall be
reimbursed/recovered to the Consultant.
15.5
As regards Income Tax, Surcharge on Income Tax and other
Corporate Taxes, including Cess wherever applicable, the
Consultant shall be responsible for such payments to the
concerned authorities.
The Employer shall be entitled to make necessary tax
deductions at source as per the prevalent laws. The
Consultant shall be required to submit the PAN details before
the submission of the first bill/invoice under the Contract.
16.
The Consultant shall himself be informed of all the applicable
laws, notifications, rules, circulars and other communications
of the State or Central or other authorities with regard to levy
of any tax, duty, cess, levy or fee etc, which in any manner
may impinge upon him in performance of any
obligations/responsibilities under or arising out of the
Contract.
15.6
[NOTUSED]
B.
Commencement, Completion and Modification
17.
Effectiveness of
Contract
17.1
The Contract shall come into force and effect on the date,
called the “Effective Date”, of the Employer’s notice to the
Consultant instructing the Consultant to commence carrying
out the Services.
18.
Effective Date 18.1 The date the Contract comes into effect shall be as specified
in the SCC.
19.
[NOT USED]
20.
Commencement of
Services
20.1 The Consultant shall start carrying out the Services
immediately after the date the contract becomes effective as
specified in the SCC.
21.
Completion of
Services
21.1
The Consultant shall attain Completion of the Services (or of
a part where a separate time for Completion of such part is
specified in the Contract) within the time stated in the SCC or
within such extended time to which the Consultant shall be
entitled under GCC Clause 59.1.
22.
Modifications or
Changes
22.1
The Employer may notify the Consultant to alter, amend, omit,
add to, or otherwise vary the services, provided that the
changes in the Services involved are necessary for the
satisfactory completion of the assignment.
22.2
No amendment or other variation of the Contract shall be
effective unless it is in writing, is dated, expressly refers to
the Contract, and is signed by a duly authorized
representative of each party hereto.
22.3
Notwithstanding GCC Sub-Clauses 22.1 and 22.2, no change
made necessary because of any default of the Consultant in
the performance of its obligations under the Contract shall be
deemed to be a Change, and such change shall not result in
any adjustment of the Contract Price or the Time for
Completion.
22.4
The Consultant shall submit to the Employer an estimate for
the proposed change in the Services within fifteen (15) days
of receipt of such Change Order(s) as stated under GCC Sub
Clause 22.2. The estimate shall comprise the following:
(a)
an estimate of the impacts, if any , of the Change Orders on
the staffing Schedule;
(b)
a detailed schedule for execution of the Change Orders
showing the resources to be employed and significant
outputs;
(c)
a detail costing covering the total amount of the Change
Orders; and
(d)
a proposed revision of the schedule of payments as approved,
if required.
22.5
The pricing of any change shall, as far as practicable, be
calculated in accordance with the rates and prices included in
the Contract. If the rates and prices of any change are not
available in the Contract, the parties thereto shall agree on
specific rates for the variation of the change.
22.6
Upon receipt of the Change Proposal, the Employer and the
Consultant shall mutually agree upon all matters therein
contained including agreement on rates if such rates are not
available in the Contract. Within fourteen (14) days after
such agreement, the Employer shall, if it intends to proceed
with the Change, issue the Consultant with a Change Order.
If the Employer is unable to reach a decision within fourteen
(14) days, it shall notify the Consultant with details of when
the Consultant can expect a decision.
If the Employer decides not to proceed with the Change for
whatever reason, it shall, within the said period of
fourteen (14) days, notify the Consultant accordingly.
22.7
If the Employer and the Consultant cannot reach agreement
on the price for the Change, an equitable adjustment to the
Time for Completion, or any other matters identified in the
Change Proposal, the Employer may nevertheless instruct
the Consultant to proceed with the Change by issue of a
“Pending Agreement Change Order.”
Upon receipt of a Pending Agreement Change Order, the
Consultant shall immediately proceed with effecting the
Changes covered by such Order. The parties shall thereafter
attempt to reach agreement on the outstanding issues under
the Change Proposal.
If the parties cannot reach agreement within sixty (60) days
from the date of issue of the Pending Agreement Change
Order, then the matter may be referred to the Expert
Settlement Council (ESC) in accordance with the provisions
of relevant GCC Sub- Clause regarding ESC.
C.
Consultant’s Personnel and Sub-Consultants
23.
General 23.1 The Consultant shall employ and provide such qualified and
experienced Personnel as are required to carry out the
Services under the Contract .
The Consultant shall acquire in its name all permits,
approvals and/or licenses from all local, state or national
government authorities that are necessary for the
performance of the Contract, including, without limitation,
visas for the Consultant’s personnel and entry permits &
clearances for all imported Consultant’s Equipment.
However, if requested by the Consultant, the Employer shall
use its best endeavours to assist the Consultant in obtaining
in a timely and expeditious manner the above mentioned
permits.
The Consultant shall, at its own expense, handle all imported
Equipment necessary for the performance of the Contract at
the point(s) of import and shall handle any formalities for
customs clearance including payments of all customs and
import duties imposed on such imported equipments.
24.
To 26. [ NOT USED]
27.
Removal and/or
Replacement of
Personnel
27.1
Except as the Employer may otherwise agree, no changes
shall be made in the Personnel. If, for any reason beyond the
reasonable control of the Consultant, it becomes necessary
to replace any of the Personnel, the Consultant shall forthwith
provide as a replacement a person of equivalent or higher
qualifications acceptable to the Employer.
27.2
If the Employer
(a)
finds that any of the Personnel has committed serious
misconduct or has been charged with having committed a
criminal action; or
(b)
has reasonable cause to be dissatisfied with the performance
of any of the Personnel; then the Consultant shall, at the
Employer’s written request specifying the grounds therefore,
forthwith provide as a replacement, a person with
qualifications and experience, as stated under GCC Sub
Clause 27.1, acceptable to the Employer.
27.3
The Consultant shall bear all additional travel and other costs
arising out of or incidental to any removal and/or
replacement.
27.4
In the event that any Sub-Consultant is found by the
Employer to be incompetent or incapable of discharging the
allocated duties, the Employer may request and the
Consultant shall provide a replacement, with qualifications
and experience acceptable to the Employer, or to resume the
performance of the Services by itself.
27.5
If specified in SCC, the Consultant shall ensure that at all
times during the Consultant’s performance of the Services in
the Employer’s country a Resident Manager, acceptable to
the Employer, shall take charge of the performance of such
Services.
D.
Obligations of the Consultant
28.
Standard of
Performance
28.1
The Consultant shall perform the Services and carry out its
obligations hereunder with all due diligence, efficiency and
economy, in accordance with generally accepted professional
standards and practices, and shall observe sound
management practices, and employ appropriate technology
and safe and effective equipment, machinery, materials and
methods. The Consultant shall always act, in respect of any
matter relating to this Contract or to the Services, as faithful
advisers to the Employer, and shall at all times support and
safeguard the Employer’s legitimate interests in any dealings
with Sub Consultants or Third Parties.
29.
Conflict of Interests 29.1 The Consultant shall hold the Employer’s interests
paramount, without any consideration for future work, and
strictly avoid conflict with other assignments or their own
corporate interests.
30.
Consultant not to
Benefit from
Commissions
Discounts etc.
30.1
The Lump-sum fees of the Consultant as stated in the
Contract shall constitute the Consultant’s sole remuneration
in connection with this Contract and, subject to GCC Sub
Clause 31.1 hereof, the Consultant shall not accept for their
own benefit any trade commission, discount or similar
payment in connection with activities pursuant to this
Contract or in the discharge of their obligations hereunder,
and the Consultant shall use their best efforts to ensure that
any Sub-Consultants, as well as the Personnel and agents of
either of them, similarly shall not receive any such additional
remuneration.
30.2
Furthermore, if the Consultant, as part of the Services, have
the responsibility of advising the Employer on the
procurement of Goods, Works or Services, the Consultant
shall at all times exercise such responsibility in the best
interest of the Employer. Any discounts or commissions
obtained by the Consultant in the exercise of such
procurement responsibility shall be for the account of the
Employer.
31.
Consultant and
Affiliates not to
Engage in Certain
Activities
31.1 The Consultant agrees that, during the term of this Contract
and after its termination, the Consultant and any entity
affiliated with the Consultant, as well as any Sub-Consultant
and any entity affiliated with such Sub-Consultant, shall be
disqualified from providing goods, works or services (other
than consulting services) for any project resulting from or
closely related to this consulting services.
32.
Prohibition of
Conflicting Activities
32.1 The Consultant shall not engage, and shall cause their
Personnel as well as their Sub-Consultants and their
Personnel not to engage, either directly or indirectly, in any
business or professional activities in India that would conflict
with the activities assigned to them under this Contract.
33.
Confidentiality 33.1 Except with the prior written consent of the Employer, the
Consultant and the Personnel shall not at any time
communicate to any person or entity any confidential
information acquired in the course of the Services, nor shall
the Consultant and the Personnel make public the
recommendations formulated in the course of, or as a result
of, the Services.
[For the purposes of this Clause “confidential information”
means any information or knowledge acquired by the
Consultant and/or their Personnel arising out of, or in
connection with, the performance of the Services under this
Contract that is not otherwise available to the public]
34.
Liability of the
Consultant
34.1
The Consultant, shall be, liable to and required to indemnify,
the Employer as stated under GCC Sub Clause 34.2
through 34.6 inclusive for due performance of the Contract.
34.2
The Consultant shall indemnify the Employer from and
against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgment, suits, proceedings,
demands, costs, expenses and disbursements of whatsoever
nature that may be imposed on, incurred by or asserted
against the Employer during or in connection with the
Services by reason of:
(a)
infringement or alleged infringement by the Consultant of any
patent or other protected right; or
(b)
plagiarism or alleged plagiarism by the Consultant.
34.3
The Consultant shall ensure that all goods and services
(including without limitation all computer hardware, software
and systems) procured by the Consultant out of funds
provided or reimbursed by the Employer or used by the
Consultant in the carrying out of the Services do not violate or
infringe any industrial property or intellectual property right or
claim of any third party.
34.4
The Consultant shall indemnify, protect and defend at their
own expense the Employer, and its agents and employees
from and against any and all actions, claims, losses or
damages arising out of Consultant’s failure to exercise the
skill and care required provided:
(a)
that the Consultant is notified of such actions, claims, losses
or damages not later than the number of months after
conclusion of the Services as specified in the SCC;
(b)
that the ceiling on the Consultant’s liability under GCC Clause
28 shall be limited to the amount as specified in the SCC,
except that such ceiling shall not apply to actions, claims,
losses or damages caused by Consultant’s gross negligence
or reckless conduct; and
(c)
that the Consultant’s liability under GCC Clause 28 shall be
limited to actions, claims, losses or damages directly caused
by such failure to exercise the said skill and care, and shall
not include liability for any actions, claims, losses or damages
arising out of occurrences incidental or indirectly
consequential to such failure.
34.5
In addition to any liability the Consultant may have under GCC
Clause 28, the Consultant shall at their own cost and
expense, upon request of Employer; re-perform the Services
in the event of Consultant’s failure to exercise the skill and
care required under GCC Clause 28.
34.6
The Consultant shall have no liability whatsoever for actions,
claims, losses or damages occasioned by:
(a)
Employer’s overriding a decision or recommendation of the
Consultant or requiring the Consultant to implement a
decision or recommendation with which Consultant do not
agree; or
35.
Insurance to be taken
out by the Consultant
(b)
the improper execution of the Consultant’s instructions by
agents, employees or independent contractors of the
Employer.
35.1 The Consultant
(a)
shall take out and maintain, and shall cause any Sub-
Consultants to take out and maintain, at their (or the Sub-
Consultants’, as the case may be) own cost, but on terms
and conditions approved by the Employer, during the
performance of the Contract, the insurance against the risks,
and for the coverage as specified in the SCC; and
(b)
at the Employer’s request, shall provide evidence to the
Employer showing that such insurance has been taken out
and maintained and that the current premiums therefore have
been paid.
36.
Accounting, 36.1 The Consultant shall
Inspection and
Auditing
(a) keep accurate and systematic accounts and records in respect
of the Services hereunder, in accordance with
nationally/internationally accepted accounting principles and
in such form and detail as will clearly identify all relevant
changes in time and costs, and the bases thereof;
and
(b) periodically permit the Employer or its designated
representative, when applicable, and up to five (5) years from
the expiration or termination of this Contract, to inspect the
same and make copies as well as to have them audited by
auditors appointed by the Employer, if so required by the
Employer as the case may be.
36.2 The Consultant shall furnish the Employer such information
relating to the Services as the Employer may from time to
time reasonably request.
37.
Consultant’s Actions
Requiring Employer’s
Prior Approval
37.1
The Consultant shall obtain the Employer’s prior approval in
writing before taking any of the following actions:
(a)
any change or addition to the Personnel already listed in;
(b)
any other action that may be specified in the SCC.
37.2
Notwithstanding any approval under GCC Sub Clause
37.1(b), the Consultant shall remain fully liable for the
performance of Services by the Sub-Consultant and its
Personnel and retain full responsibility for the Services.
38.
Reporting Obligations 38.1 The Consultant shall submit to the Employer the reports and
documents specified in the Section VI: Terms of Reference,
in the form, in the numbers and within the time periods set
forth there.
39.
Proprietary Rights on
Documents Prepared
by the Consultant
39.1
All plans, maps, diagrams, drawings, specifications, designs,
statistics, reports, other documents, data and software
compiled or prepared by the Consultant for the Employer
under this Contract shall become and remain the absolute
property of the Employer, and the Consultant shall, not later
than upon termination or expiration of this Contract, deliver all
such documents (both hard copy and softcopy in CD or any
acceptable storage device by the employer) to the Employer,
together with a detailed inventory.
39.2
The Consultant may retain a copy of such documents and
software, and use such software for their own use with the
prior written approval of the Employer.
39.3
Other restrictions, if any, about the future use of these
documents and software, if any, shall be as specified in the
SCC.
40.
Proprietary Rights on
Equipment and
Materials Furnished
by the Employer.
40.1
Equipment, vehicles, tools and materials if any made
available to the Consultant by the Employer, or purchased by
the Consultant wholly or partly with funds provided by the
Employer, shall be the property of the Employer and shall be
marked accordingly.
Upon termination or expiration of this Contract, the
Consultant shall make available to the Employer an inventory
of such equipment and materials and shall dispose of such
equipment and materials in accordance with the Employer’s
instructions.
40.2
During the possession of such equipment and materials, the
Consultant, unless otherwise instructed by the Employer in
writing, shall insure them at the expense of the Employer in
an amount equal to their full replacement value.
E.
Obligations of the Employer
41.
Assistance and
Exemptions
41.1
The Employer shall use its best efforts to ensure the following:
(a)
To ensure the accuracy of all information and/or data to be
supplied by the Employer to the Consultant necessary for
performance of the Contract, except when otherwise
expressly stated in the Contract.
(b)
issue to officials, agents and representatives of the Employer
all such instructions as may be necessary or appropriate for
the prompt and effective implementation of the Services;
(c)
provide to the Consultant, Sub-Consultants and Personnel
any such other assistance as may be specified in the SCC.
42.
[ NOT USED]
43.
Change in the
Applicable Law
Related to Taxes
43.1 If, after 07 days before the closing date of proposal
submission, and during the performance of the Contract,
there is any change in the Applicable Law with respect to
taxes which increases or decreases the cost incurred by the
Consultant in performing the Services, then the amounts
otherwise payable to the Consultant under this Contract shall
be increased or decreased accordingly by agreement
between the Parties hereto.
44.
Services, Facilities
and Property
44.1 The Employer shall make available to the Consultant and the
Personnel, for the purposes of the Services and free of any
charge, the facilities and properties described in Section
VI: Terms of Reference at the times and in the manner
specified.
45.
Payment 45.1 In consideration of the Services performed by the Consultant
under this Contract, the Employer shall make to the
Consultant such payments and in such manner as stated
under GCC Clauses 48,50 and 51.
46.
Sl. No. NOT USED
F.
Payments to the Consultants
47.
Sl. No. NOT USED
48.
Payments: General 48.1 Payments will be made in the currency or currencies in which
the Contract Price has been stated in the Consultant’s bid.
48.2 No payment made by the Employer herein shall be deemed to
constitute acceptance of the Services nor relieve the
Consultant of any obligations.
49.
Sl. No. NOT USED
50.
Contract Price &
Terms of Payment
50.1
The Contract Price & Terms of Payment shall be as specified
in the Letter of the Award.
50.2
The Contract Price shall be adjusted in accordance with Price
Adjustment specified in SCC.
The Consultant shall be deemed to have satisfied itself as to
the correctness and sufficiency of the Contract Price, which
shall, except as otherwise provided for in the Contract, cover
all its obligations under the Contract.
51.
Modes of Billing and 51.1 All the invoices of payment shall be supported by necessary
Payment Documents and submitted in quadruplicate for the
certification of Engineer-in-Charge for which he will require a
maximum time of fifteen (15) days before the same are
submitted for processing the payment of amount admitted.
The Employer shall pay to the Consultant all the admissible
payments within thirty (30) days of certification of the
Engineer-in-Charge of the amount payable for the services.
In the event, there is any query in respect of any item of such
invoice requiring clarification, the Engineer-in-Charge shall
notify the same within 15 days of receipt of such invoice by
the Employer that such a query has arisen and both the
parties shall endeavor to reach an agreement within a period
of thirty (30) days thereafter. If no mutual agreement can be
reached within a period of forty five (45) days after receipt of
the invoices by the Engineer-in Charge, the Employer shall
make payment against the balance of invoice (original
amount less the amount in question) to the Consultant within
thirty (30) days thereafter i.e. within seventy five (75) days
from the date of receipt of invoice by the Engineer-in-charge.
The invoice for the balance amount under question shall be
separately submitted for future consideration of the Employer.
51.2 Consultant shall furnish the details of Bank Account in the
prescribed format along with Bid in order to facilitate the
Employer to release Payments electronically through
Electronic Fund Transfer system wherever technically
feasible. The Consultant shall hold the Employer harmless &
Employer shall not be liable for any direct, indirect or
consequential loss or damage sustained by the Consultant
on account of any error in the information or change in Bank
details provided to the Employer in the prescribed form
without intimation to Employer duly acknowledged.
52 to 56 Sl. No. NOT USED
G.
Time Control
57 Completion of Services
The
Consultant
shall
carry
out
the
Services
in
accordance
with
the
Programme
submitted
by
the
Consultant,
as
updated
with
the
approval
of
the
Employer
and
complete
them
by
the
Intended
Completion
date
as
stated
under
GCC
Clause
1.1
(n).
58 Early Warning 58.1 If at any time during performance of the Contract, the
Consultant or its Sub-Consultants should encounter events,
circumstances conditions that may adversely affect the
quality of the work, increase the cost of Services or delay the
execution of the Services, the Consultant shall promptly notify
the Employer in writing of the delay, its likely duration, and its
cause. As soon as practicable after receipt of the
Consultant’s notice, the Employer shall evaluate the situation,
and the Consultant shall cooperate with the Employer in
making and considering proposals for how the effect of such
an event or circumstance can be avoided or reduced.
59 Extension of the
Intended Completion
Date
59.1
In the event the Consultant is unable to complete the
assignment by the Intended Completion Date it may request
the Employer to extend the Intended Completion Date giving
reasons. The Employer shall extend the Intended Completion
Date if the reasons given by the Consultant, including prior
review where necessary, are found acceptable. The
Employer shall, however, decide by how much to extend the
Intended Completion Date.
60 Progress Meetings 60.1 The Employer and the Consultant shall arrange progress
meetings at regular intervals to review the progress of works.
The meeting may review the plans for dealing with matters
raised in accordance with the early warning procedure.
60.2
Employer shall record the business of progress meetings and
provide copies of the record to those attending the meeting
and to the Consultant for action.
60.3
The Employer shall record the business of progress meetings
and provide copies of the record to those attending the
meeting and to the Consultant for action.
H. Good Faith
61 Good Faith 61.1 The Parties undertake to act in good faith with respect to
each other’s rights under this Contract and to adopt all
reasonable measures to ensure the realization of the
objectives of this Contract.
62 Fairness in
Operation
a. The Parties recognize that it is impractical in the Contract to
provide for every contingency which may arise during the life
of the Contract, and the Parties hereby agree that it is their
intention that this Contract shall operate fairly as between
them, and without detriment to the interest of either of them,
and that, if during the term of this Contract either Party
believes that this Contract is operating unfairly, the Parties
will use their best efforts to agree on such action as may be
necessary to remove the cause or causes of such unfairness,
but no failure to agree on any action pursuant to this Clause
shall give rise to a dispute subject to arbitration in
accordance with GCC Clause 74.
I.
Termination and Settlement of Disputes
63 Termination for Default
63.1
The Employer or the Consultant, without prejudice to any other
remedy for breach of Contract, by notice of default sent to the
other party, may terminate the Contract in whole or in part if
the other party causes a fundamental breach of contract. In
such an occurrence one party shall give not less than thirty
(30) days’ written notice of termination to the other party.
63.2
Fundamental breaches of the Contract shall include but shall
not be limited to, the following:
(a)
If the Consultant fails to remedy a failure in the performance of
their obligations hereunder, within thirty (30) days of receipt
of such notice of suspension or within such further period as
the Employer may have subsequently approved in writing;
(b)
If the Consultant submits to the Employer a statement which
has a material effect on the rights, obligations or interests of
the Employer and which the Consultant knows to be false;
(c)
if the Consultant, in the judgement of the Employer has
engaged in corrupt or fraudulent practices in competing for or
in executing the Contract.
For the purpose of this Sub-Clause:
"corrupt practice" means the offering, giving, receiving or
soliciting of any thing of value to influence the action of a
public official in the procurement process or in contract
execution.
"fraudulent practice" means a misrepresentation of facts in
order to influence a procurement process or the execution of
a contract to the detriment of the Employer and includes
collusive practice among Bidders (prior to or after bid
submission) designed to establish bid prices at artificial non-
competitive levels and to deprive the Employer of the benefits
of free and open competition
(d)
If the Consultant or the Employer fails to comply with any final
decision reached as a result of arbitration proceedings
pursuant to GCC Sub Clause 74.2;
(e)
If the Employer fails to pay any money due to the Consultant
pursuant to this Contract and not subject to dispute pursuant
to GCC Sub Clause 74.2 within forty-five (45) days after
receiving written notice from the Consultant that such
payment is overdue; or
(f)
If the Employer is in material breach of its obligations
pursuant to this Contract and has not remedied the same
within forty- five (45) days (or such longer period as the
Consultant may have subsequently approved in writing)
following the receipt by the Employer of the Consultant’s
notice specifying such breach.
64 Termination for
Insolvency
64.1 The Employer and the Consultant may at any time terminate
the Contract by giving notice to the other party if:
(a)
the Employer becomes bankrupt or otherwise insolvent;
(b)
the Consultant becomes (or, if the Consultant consist of more
than one entity, if any of its Members becomes) insolvent or
bankrupt or enter into any agreements with their creditors for
relief of debt or take advantage of any law for the benefit of
debtors or go into liquidation or receivership whether
compulsory or voluntary; or
(c)
in such event, termination will be without compensation to
any party, provided that such termination will not prejudice or
affect any right of action or remedy that has accrued or will
accrue thereafter to the other party.
65 Termination for
Convenience
65.1 The Employer, by notice sent to the Consultant, may in its
sole discretion and for any reason whatsoever, terminates the
Contract, in whole or in part, at any time for its convenience.
The notice of termination shall specify that termination is for
the Employer’s convenience, the extent to which performance
of the Consultant under the Contract is terminated, and the
date upon which such termination becomes effective.
66 Termination for Force
Majeure
66.1 The Employer and the Consultant may at any time terminate
the Contract by giving notice to the other party if, as the result
of Force Majeure, the Consultant is unable to perform a
material portion of the Services for a period of not less than
sixty (60) days.
67 Force Majeure 67.1 For the purposes of this Contract, “Force Majeure” means an
event which is beyond the reasonable control of a Party, is
not foreseeable, is unavoidable, and its origin is not due to
negligence or lack of care on the part of a Party, and which
makes a Party’s performance of its obligations hereunder
impossible or so impractical as reasonably to be considered
impossible in the circumstances, and includes, but is not
limited to, war, riots, civil disorder, earthquake, fire, explosion,
storm, flood, epidemics, or other adverse weather conditions,
strikes, lockouts or other industrial action (except where such
strikes, lockouts or other industrial action are within the power
of the Party invoking Force Majeure to prevent), confiscation
or any other action by Government agencies.
67.2
Force Majeure shall not include any:
(a)
event which is caused by the negligence or intentional action
of a Party or such Party’s Sub-Consultants or agents or
employees, or
(b)
event which a diligent Party could reasonably have been
expected both to take into account at the time of the
conclusion of this Contract, and avoid or overcome in the
carrying out of its obligations hereunder.
67.3
Force Majeure shall not include insufficiency of funds or
failure to make any payment required hereunder.
68 No Breach of Contract
68.1 The failure of a Party to fulfill any of its obligations hereunder
shall not be considered to be a breach of, or default under,
this Contract insofar as such inability arises from an event of
Force Majeure, provided that the Party affected by such an
event has taken all reasonable precautions, due care and
reasonable alternative measures, all with the objective of
carrying out the terms and conditions of this Contract.
69 Measures to be Taken
on Force Majeure
69.1
A Party affected by an event of Force Majeure shall continue
to perform its obligations under the Contract as far as is
reasonably practical, and shall take all reasonable measures
to minimize the consequences of any event of Force Majeure.
69.2
A Party affected by an event of Force Majeure shall notify the
other Party of such event as soon as possible, and in any
case not later than fourteen (14) days following the
occurrence of such event, providing evidence of the nature
and cause of such event, and shall similarly give written
notice of the restoration of normal conditions as soon as
possible.
69.3
Any period within which a Party shall, pursuant to this
Contract, complete any action or task, shall be extended for a
period equal to the time during which such Party was unable
to perform such action as a result of Force Majeure.
69.4
During the period of their inability to perform the Services as
a result of an event of Force Majeure, the Consultant, upon
instructions by the Employer, shall either:
(a)
demobilize, in which case the Consultant shall be reimbursed
for additional costs they reasonably and necessarily incurred,
and, if required by the Employer, in reactivating the Services;
or
(b)
continue with the Services to the extent possible, in which
case the Consultant shall continue to be paid under the terms
of this Contract and be reimbursed for additional costs
reasonably and necessarily incurred.
70 Cessation of Rights
and Obligations
70.1
Upon termination of the Contract pursuant to GCC Clauses 63
to 66, or upon completion of this Contract pursuant to GCC
Clause 21, all rights and obligations of the Parties hereunder
shall cease, except
(a)
such rights and obligations as may have accrued on
the date of termination or completion;
(b)
the obligation of confidentiality set forth in GCC
Clause 33;
(c)
the Consultant’s obligation to permit inspection,
copying and auditing of their accounts and records set
forth in GCC Clause 36; and
(d)
any right which a Party may have under the Applicable
Law.
71 Cessation of Services 71.1 Upon termination of the Contract by notice of either Party to
the other pursuant to GCC Clauses 63 to 66, the Consultant
shall, immediately upon dispatch or receipt of such notice,
take all necessary steps to bring the Services to a close in a
prompt and orderly manner and shall make every reasonable
effort to keep expenditures for this purpose to a minimum.
With respect to documents prepared by the Consultant and
equipment and materials furnished by the Employer, the
Consultant shall proceed as provided, respectively, by GCC
Clauses 39 and or 40.
72 Payment upon 72.1 Upon termination of this Contract pursuant to GCC Clauses to
Termination 63 to 66, the Employer shall make the following payments to
the Consultant:
(a)
payment pursuant to GCC Clause 48,50 and 51 for Services
satisfactorily performed prior to the effective date of
termination;
73 Disputes about Events
of Termination
74 Settlement of Disputes
(b)
except in the case of termination pursuant to GCC Sub Clause
63.2 (a), (b), & (c) and GCC Sub Clause 64.1 (b),
reimbursement of any reasonable cost incidental to the
prompt and orderly termination of the Contract.
73.1
If either Party disputes whether an event specified in GCC
Clause 63, 64 or 65 has occurred, such Party may, within
forty-five (45) days after receipt of notice of termination from
the other Party, refer the matter to arbitration pursuant to
GCC Clause 74.2, and this Contract shall not be terminated
on account of such event except in accordance with the
terms of any resulting arbitral award.
73.2
In the case of disagreement between the Parties as to the
existence or extent of Force Majeure, the matter shall be
settled according to GCC Clause 74.
74.1 Mutual Consultation
If any dispute of any kind whatsoever shall arise between the
Employer and the Consultant in connection with or arising out
of the Contract, including without prejudice to the generality of
the foregoing, any question regarding its existence, validity or
termination, or the execution of the Facilities, whether during
the progress of the Facilities or after their completion and
whether before or after the termination, abandonment or
breach of the Contract, the parties shall seek to resolve any
such dispute or difference by mutual consultation. If the
parties fail to resolve such a dispute or difference by mutual
consultation, then the dispute maybe settled through Expert
Settlement Council/Arbitration.
74.2.
Resolution of Dispute through Conciliation
Where the disputed amount is within Rs 250 crores (to be
arrived at considering the claim and counter claim of the
parties to the dispute) and in case the parties fail to resolve
such a dispute or difference by mutual consultation, the
dispute may be referred to Conciliation.
74.2.1
Invitation for Conciliation:
74.2.1.1
A party shall notify the other party in writing about such a
dispute it wishes to refer for conciliation within a period of
30 days from the date of failure to resolve the dispute
through mutual consultation. Such Invitation for
conciliation shall contain sufficient information as to the
dispute to enable the other party to be fully informed as to
the nature of the dispute, amount of the monetary claim, if
any, and apparent cause of action.
74.2.1.2
Upon acceptance of the invitation to conciliate, the other
party shall submit its counter claim, if any, within a period
of 30 days from the date of the invitation to conciliate. If
the other party rejects the invitation or if disputed amount
exceeds Rs 250 crores, there will be no conciliation
proceedings.
74.2.1.3
If the party initiating conciliation does not receive a reply
within thirty days from the date it sends the invitation, or
within such other period of time as specified in the
invitation, it shall treat this as a rejection of the invitation to
conciliate from the other party.
74.2.2
Conciliation:
74.2.2.1
Where Invitation for conciliation has been furnished under
GCC sub clause 74.2.1, the parties shall attempt to settle
such dispute through Expert Settlement Council (ESC),
which shall be constituted by CMD, NTPC.
74.2.2.2
ESC will be formed from experts comprising three
members from the panel of conciliators maintained by
NTPC. However, there will be single member ESC for
disputes involving claim and counter claim (if any) up to
Rs. 1 crore. CMD will have authority to reconstitute an
ESC to fill any vacancy.
74.2.2.3
The eligible persons for consideration for empanelment in
the panel of conciliators shall be amongst Retired Civil
Servants of Govt. of India not below the rank of Additional
Secretary, Retired Judges, Retired Directors/ Chairman of
any Maharatna/Navratna company in India other than
NTPC Ltd, Retired Independent Directors who have
served on the Board of any Maharatna/ Navratna
company in India other than NTPC Ltd and Independent
experts in their respective fields preferably registered
with the Indian Council of Arbitration or Delhi
International Arbitration Centre or Federation of Indian
Chambers of Commerce and Industry or SCOPE
Arbitration Forum.
74.2.3
Proceedings before ESC:
74.2.3.1
The claimant shall submit its statement of claims along
with relevant documents to ESC members, and to the
party(s) indicated in the appointment letter within 30 days
of the issue of the appointment letter. The respondent
shall file its reply and counter claim (if any) within 30 days
of the receipt of the statement of claims. Parties may file
their rejoinder/additional documents, if any in support of
their claim/counter claim within next 15 days. No
documents shall be allowed thereafter, except with the
permission of ESC.
74.2.3.2
The parties shall file their claim and counter claim in the
following format
a.
Chronology of the dispute
b.
Brief of the contract
c.
Brief history of the dispute
d.
Issues
Sl. No.
Description of
Claims/ Counter
claims
Amount (in foreign
currency/INR)
Relevant
Contract
Clause
e.
Details of Claim(s)/Counter Claim(s)
f.
Basis/Ground of claim(s)/counter claim(s) (along with
relevant clause of contract
Statement of claims shall be restricted to maximum limit of 20 pages.
74.2.3.3
In case of 3 members ESC, 2 members will constitute a
valid quorum and the meeting can take place to proceed
in the matter after seeking consent from the member who
is not available. However, ESC recommendations will be
signed by all the members.
74.2.3.4
The parties shall be represented by their in house
employees. No party shall be allowed to bring any
advocate or outside consultant/advisor/agent to contest
on their behalf. Ex officers of NTPC who have handled the
disputed matter in any capacity shall not be allowed to
attend and present the case before ESC on behalf of
Consultant. However, ex-employees of parties may
represent their respective organizations. Parties shall not
claim any interest on claims/counter-claims from the date
of notice invoking conciliation till execution of settlement
agreement, if so arrived. In case, parties are unable to
reach a settlement, no interest shall be claimed by either
party for the period from the date of notice invoking
conciliation till the date of ESC recommendations and 30
days thereafter in any further proceeding.
74.2.3.5
ESC will conclude its proceedings in maximum
10 meetings, and give its recommendations within 90
days of its first meeting. ESC will give its
recommendations to both the parties recommending
possible terms of settlement. CMD, NTPC may extend the
time/number of meetings, in exceptional cases, if ESC
requests for the same with sufficient reasons.
74.2.3.6
Depending upon the location of ESC members and the
parties, the venue of the ESC meeting shall be either
Delhi/Mumbai/Kolkata/Chennai or any other city
whichever is most economical from the point of view of
travel and stay etc. All the expenditure incurred in ESC
proceedings shall be shared by the parties in equal
proportion.
74.2.4
Fees
& Facilities to the Members of the ESC
The cost of conciliation proceedings including but not
limited to fees for Conciliator, Airfare, Local transport,
Accommodation, cost towards conference facility etc shall
be as provided herein below:
Sl.No.
Fees/ Facility
Entitlement
1
Fees
As paid to NTPC Independent
Directors [Presently Rs. 20,000 per
meeting]. In addition, each conciliator
to be paid Rs. 10,000 for attending
meeting to authenticate the
settlement agreement. - max. of Rs.
2,10,000 per case per Conciliator.
2
Secretarial
expenses
Rs. 10,000 lump sum (to 1 member
only).
3
Transportation
in the city of the
meeting
Car as per entitlement or Rs. 2,000
per day
4
Venue for
meeting
NTPC conference rooms
Facilities to be provided to the out -stationed member
5
Travel from the
city of
residence to
the city of
meeting
As per entitlement of Independent
Directors. Executive class air tickets/
first class AC train tickets/ Luxury
car/ reimbursement of actual fare.
However, entitlement of air travel by
Business class shall be subject to
austerity measures, if any, ordered
by Govt of India.
6
Transport to
and fro
airport/railway
station in the
city of
residence
Car as per entitlement or Rs. 3,000
7
Stay for out
stationed
members
As per entitlement of Independent
Directors.
8
Transport in the
city of meeting
Car as per entitlement or Rs. 2000 per
day
Aforesaid fees is subject to revision by NTPC from time to
time and subject to government guidelines on austerity
measures, if any. All the expenditure incurred in the ESC
proceedings shall be shared by the parties in equal
proportions. The Parties shall maintain the account of
expenditure and present to the other for the purpose of
sharing on conclusion of the ESC proceedings.
74.2.5
If decision of NTPC is acceptable to the Consultant, a
Settlement Agreement under section 73 of the Arbitration
and Conciliation Act 1996 will be signed within 15 days of
Consultant’s acceptance and same shall be authenticated
by all the ESC members. Parties are free to terminate
conciliation proceedings at any stage as provided under
the Arbitration and Conciliation Act 1996.
74.2.6
The parties shall keep confidential all matters relating to
the conciliation proceedings. Parties shall not rely upon
them as evidence in arbitration proceedings or court
proceedings.
74.3
Arbitration
74.3.1
In case the parties fail to settle the dispute through the
process of mutual consultation and/or conciliation as per
GCC Sub-Clause 74.1 & 74.2 above, either party may
give a notice to the other party, of its intention to
commence arbitration, as hereinafter provided, as to the
matter in dispute, and no arbitration in respect of this
matter may be commenced unless such notice is given.
Such notice of intention to commence arbitration shall be
given within a period of thirty (30) days from the date of
failure to settle the matter through mutual consultation or
thirty (30) days from the date of termination of ESC
proceedings (applicable only in case where ESC has
been constituted).
74.3.2
Any dispute, in respect of which a notice of intention
to commence arbitration has been given, in accordance
with Sub-Clause 74.3.1 above, shall be finally settled by
arbitration. Arbitration may be commenced prior to or
after completion of the package/order.
74.3.3
Any dispute submitted by a party to arbitration shall be
heard by an arbitration panel composed of three
arbitrators, in accordance with the provisions set forth
below.
74.3.4
The Employer and the Consultant shall each appoint one
arbitrator, and these two arbitrators shall jointly appoint a
third arbitrator, who shall chair the arbitration panel. If the
two arbitrators do not succeed in appointing a third
arbitrator within twenty-eight (28) days after the latter of
the two arbitrators has been appointed, the third arbitrator
shall, at the request of either party, be appointed by the
Appointing Authority as given below:
a)
President, Institution of Engineers in case of an Indian
Consultant.
b)
President, International Chambers of Commerce, Paris in
case of a Foreign Consultant.
74.3.5
If one party fails to appoint its arbitrator within forty-two
(42) days after the other party has named its arbitrator,
the party which has named an arbitrator may request the
Appointing Authority to appoint the second arbitrator.
74.3.6
If for any reason an arbitrator is unable to perform its
function, the mandate of the Arbitrator shall terminate in
accordance with the provisions of applicable laws as
mentioned in GCC Clause 4 (Governing Law) and a
substitute shall be appointed in the same manner as the
original arbitrator.
74.3.7
Arbitration proceedings shall be conducted
(i)
in accordance with the following rules of procedure:-
a)
In case of a foreign Consultant, the arbitration proceeding
shall be conducted in accordance with the United Nations
Commission on International Trade Law (UNCITRAL)
Arbitration Rules of 1976.
b)
In case of an Indian Consultant, adjudication/Arbitration
proceedings shall be conducted in accordance with Indian
Arbitration and Conciliation Act 1996. In case the Indian
Consultant is an Indian Public Sector
Enterprise/Government Department (but not a State Govt.
Undertaking or Joint Sector Undertaking which is not a
subsidiary of Central Govt. Undertaking), the dispute
arising between the Employer and the Consultant shall be
referred for resolution to a Permanent Arbitration
Machinery (PAM) of the Department of Public
Enterprises, Government of India.
c) In case of a foreign collaborator/associate of the Consultant,
the arbitration proceedings shall be conducted in
accordance with the United Nation Commission on
International Trade Law (UNCITRAL) Arbitration Rules of
1976.
(ii)
in New Delhi, India (Place for Arbitration) or any other
place as decided by the Employer.
(iii)
in the language in which this Contract has been executed.
74.3.8
The decision of a majority of the arbitrators (or of the third
arbitrator chairing the arbitration, if there is no such
majority) shall be final and binding and shall be
enforceable in any court of competent jurisdiction as
decree of the court. The parties thereby waive any
objections to or claims of immunity from such
enforcement.
74.3.9
The arbitrator(s) shall give reasoned award.
74.3.10
Fee Schedule for Arbitrators
(A)
Arbitrators Fee
(I)
The Arbitrators shall be paid fees at the following rates:
Amount of Claims and Lump sum fees (including fees for
Counter Claims study of pleadings, case material,
(excluding interest) writing of the award, secretarial
Charges etc.) Payable to each
arbitrator (to be shared equally by
the parties)
Up to Rs.50 lakhs Rs.10, 000/- per meeting subject to a
ceiling of Rs. 1,00,000/-.
Above Rs.50 lakhs to Rs.1, 35,000/- plus Rs.1, 800/- per
lakh Rs.1 Crore or a part there of subject to a ceiling
of Rs. 2,25,000/-.
Above Rs.1 crore and Rs.2, 25,000/- plus Rs.33, 750/-
per up to Rs.5 Crore crore or a part thereof subject to a
ceiling of Rs.3,60,000/-.
Above Rs. 5 Crore and Rs.3,60,000/- plus Rs.22,500/- per
up to Rs.10 Crore crore or a part thereof subject to a
ceiling of Rs. 4,72,500/-.
Above Rs.10 Crore Rs.4,72,500 plus Rs.18,000/- per crore
or part thereof subject to a ceiling of
Rs. 10,00,000/-.
If the claim is in foreign currency, the SBI Bills Selling
Exchange rate prevailing on the date of claim shall be
used for the purpose of converting the claim in Indian
Rupee which may be used for determining the arbitration
fee as brought out above.
(II)
If after commencement of the Arbitration proceedings, the
parties agree to settle the dispute mutually or refer the
dispute to conciliation, the arbitrators shall put the
proceedings in abeyance until such period as requested
by the parties. Where the proceedings are put in abeyance
or terminated on account of mutual settlement of dispute
by the parties, the fees payable to the arbitrators shall be
determined as under:
(i)
20% of the fees if the claimant has not submitted
statement of claim
(ii)
40% of the fees if the pleadings are complete
(iii)
60% of the fees if the hearing has commenced
(iv)
80% of the fees if the hearing is concluded but the award
is yet to be passed
(III)
Each party shall pay its share of arbitrator’s fees in
stages as under:
(i)
20% of the fees on filing of reply to the statement of
claim
(ii)
40 % of the fees on completion of pleadings
(iii)
20% of the fees on conclusion of the final hearing
(iv)
20% at the time when award is given to the parties
(IV)
Each party shall be responsible to make arrangements
for the travel and stay etc. of the arbitrator appointed by
it. As regards the Presiding Arbitrator, the expenses
incurred on his travel/stay shall be shared equally by the
parties.
(V)
The parties agree that they shall appoint only those
persons as arbitrators who accept the conditions of
arbitration clause, including the fees schedule provided
herein. No person shall be appointed as arbitrator or
presiding arbitrator who does not accept the conditions
of arbitration clause including the fee schedule provided
hereinbefore.
(B)
Arbitration Period
The arbitrators shall make and publish the award within
time stipulated as under:
Amount of Claims and Period for making and publishing
Counter Claims of the award (counted from the
(Excluding interest) date of first meeting of the
arbitrators)
Up to Rs. 5 Crore Within 8 months
Above Rs. 5 Crore Within 12 months
The above time limit can be extended by the arbitrators,
for reasons to be recorded in writing, with the consent of
the parties.
74.4
Notwithstanding any reference to the Conciliation or
Arbitration herein,
(a)
the parties shall continue to perform their respective
obligations under the Contract unless they otherwise
agree.
(b)
the Employer shall pay the Consultant any monies due to
the Consultant.
75 Performance Security 75.1 The Consultant shall, within twenty-eight (28) days of the
Letter of Award; provide securities for the due performance
of the Contract for ten percent (10%) of all the Contracts,
with an initial validity upto ninety (90) days beyond the
completion date for consultancy work.
75.2 The performance security shall be denominated in the
currency or currencies of the Contract, or in a freely
convertible currency acceptable to the Employer, and shall
be in the form of unconditional bank guarantee provided in
Section-VII (Forms and Procedures)-Form of Performance
Security of the Bidding Documents.
76 Fraud Prevention Policy The Consultant along with their sub-consultants / service
Providers, if any shall strictly adhere to the Fraud
Prevention policy of the Employer displayed on its tender
website http://www.ntpctender.com. The Consultant along
with their sub-consultants / service providers shall observe
the highest standard of ethics and shall not indulge or allow
anybody else working in their organization to indulge in
fraudulent activities during execution of the contract. The
Consultant shall immediately apprise the Employer about
any fraud or suspected fraud as soon as it comes to their
notice.
77 Withholding/Banning The Employer has in place a Policy for withholding and
78 Banning of Business Dealings as enclosed at Annexure-I to General Conditions of Contract (GCC)
of the Bidding Documents. Business dealings may be withheld or banned with the Consultant on
account of any Default by the Consultant under GCC or any of the grounds as detailed in the said
Banning Policy.
1
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
Annexure-I
Policy & Procedure for Withholding and Banning of
Business Dealings
INDEX
S.No.
TOPIC
1)
Introduction
2)
Scope
3)
Definitions
Withholding of business dealings
4.1
Grounds
4.2
Procedure
4.3
Notice of Default
4.4
Area of Operation
4.5
Effect of Withholding
4.6
Duration of Withholding
4)
4.7
Revocation of Orders
5)
Banning of Business Dealings
5.1
Grounds
5.2
Procedure
5.3
Show Cause Notice
5.4
Speaking Orders
5.5
Communication to Agencies
5.6
Period of banning
5.7
Area of operation
5.8
Effect of Banning
5.9
Process of reply
5.10
Hosting at NTPC Website
5.11
Appeal
5.12
Revocation
6)
Participation of Agency under Different Name
7)
Participation of Agency as an Associate/Collaborator/Sub-Vendor &
Procurement in Operating Stations
2
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
1.
Introduction
1.1 NTPC Ltd. deals with Agencies, who are expected to adopt ethics of
highest standards and a very high degree of integrity, transparency,
commitments and sincerity towards the work undertaken. It is not in
the interest of NTPC to deal with any Agency who commit deception,
fraud or other misconduct of whatsoever nature in the tendering
process and/or execution. NTPC is committed for timely completion of
the projects within the awarded value without compromising on
quality.
1.2 Since suspension/banning of business dealings involves civil
consequences for an Agency concerned it is incumbent that adequate
opportunity of hearing is provided and the explanation, if tendered, is
considered before passing any order in this regard keeping in view the
facts and circumstances of the case.
2.
Scope
2.1 NTPC reserves its right to withhold or ban business dealings with any
Agency, if such Agency is found to have committed misconduct or any
of its action(s) fall into any such categories as laid down in this policy.
2.2 The procedure for (i) Withholding and (ii) Banning of Business Dealing
with any Agency, has been laid down in these guidelines.
2.3 The provisions of this Policy supersede and will have overriding effect
on all earlier guidelines, procedures & system circulars issued for the
similar purpose.
2.4 This policy comes into force from the date of its issuance.
2.5 The provisions of this policy will be effective on investigations conducted
or misconduct/irregularities noticed on the part of any Agency in all
contracts awarded on or after the date of implementation of this policy
and in the contracts under execution or contracts not yet closed, on
the date of the implementation of this policy.
3.
Definitions
In these Guidelines, unless the context otherwise requires:
i) Agency shall mean Contractor / Supplier / Purchaser / Bidder/
NTPC approved Sub-contractor of a Contractor’ to whom work has
been awarded. It shall include, but not limited to, a public limited
3
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
company or a private limited company, a firm whether registered or
not, any individual, a cooperative society or an association or a
group of persons engaged in any commerce, trade industry, or
constituents of an unincorporated Joint Venture Company, etc.
ii) Competent Authority and ‘Appellate Authority’ shall mean
the following :-
a) For Company (entire NTPC) wide Banning/Contracts awarded from
Corporate Centre
The CMD shall be the ‘Competent Authority’ for the purpose of
these guidelines. Board of Directors / Sub-committee of the Board
of Directors / Group of Directors, nominated for the said purpose
shall be the ‘Appellate Authority’ in respect of such cases.
b) For Region wide Banning /Contracts awarded from Regions
The Regional ED shall be the Competent Authority for the purpose
of these guidelines. The CMD shall be Appellate authority in respect
of such cases.
c) For Contracts awarded from individual Projects / Units
The Head of Project shall be the ‘Competent Authority’ for the
purpose of these guidelines. The Regional Executive Director shall
be the ‘Appellate Authority’ in respect of such cases.
iii) ‘Investigating Department’ shall mean any Department or Unit
of NTPC, investigating into the conduct of the Agency and shall
include the NTPC Vigilance Department, Central Bureau of
Investigation, the State Police or any other department set up by
the Central or State Government having powers to investigate.
iv) ‘List of Enlisted Agencies –shall mean and include list of Enlisted
Parties / Contractors / Suppliers / Bidders, etc.
v) State – includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local
or other authorities within the territory of India or under the control
of the Government of India.
4
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
vi) Fraud Prevention Policy – shall mean the policy related to
prevention of fraud displayed on NTPC tender website
http://www.ntpctender.com.
vii) Contractor Performance Feedback and Evaluation System –
The guidelines outlined in relevant NTPC circular for evaluating the
Contractor’s performance by the Screening Committee in respect of
Contracts awarded by Corporate Contracts Services.
viii) Completion of Facilities shall mean the term ‘Completion of
Facilities ’ as defined in the Contract.
ix) Standing Committee shall mean the following :-
a) For Contracts awarded from Corporate Centre
A Committee constituted for the purpose of these guidelines
and comprising members from CC&M (Convener), Finance and
Engineering/Indenting department. Additional member(s) from
any other deptt/site/region as considered appropriate may also
be co-opted on case to case basis. The level of the committee
members shall be E8 and above.
b) For Contracts awarded from Regions
A Committee constituted for the purpose of these guidelines
and comprising HODs (not below E-7 level) from C&M
(Convener), Finance and Indenting department. Additional
member(s) from any other deptt/site as considered appropriate
may also be co-opted on case to case basis.
c) For Contracts awarded from individual Projects / Units
A Committee constituted for the purpose of these guidelines
and comprising HODs (not below E-7 level) from C&M
(Convener), Finance and Indenting department. Additional
member(s) from any other deptt. as considered appropriate
may also be co-opted on case to case basis.
x) Suspension/Banning – In the context of these guidelines, the
words suspension and banning are interchangeable and shall have
same connotation & meaning.
5
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
4.
5.
6.
Withholding of business dealings
6.1 Grounds
The business dealing with the Agency may be withheld, if they are found
to be in breach of the terms & conditions of the Contract, on account of
the reasons attributable to them, which shall include, but not be limited to
the following:
if the Agency
a) Either fails to commence work on the Facilities in terms of contract or
suspends the progress of Contract performance.
b) Fails to achieve the `Completion of Facilities’ or execute the contract
milestones within time schedule stipulated in the contract
c) Suspends/stops work on any unfounded pretext including seeking
higher compensation.
d) Fails to conduct the Guarantee test in the time limit stipulated in the
contract.
e) Diverts funds advanced to the Contractor for purpose other than the
Contract.
f) Does not deploy or withdraws the technical staff or equipment
considered necessary as per the terms & conditions of contract;
g) Fails to furnish the required documents / information as required under
the terms & conditions of contract;
h) Does not fulfill the obligations as required under the Contract .
i) Violates terms & conditions of the contract.
j) Does not Supply material /supplies material of inferior quality with
respect to Technical Specifications under the Contract.
k) On prima-facie scrutiny, work executed found to be of poor quality
beyond acceptable limits stipulated in the Technical Specifications
6
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
under the Contract.
7
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
l) If a disaster / major failure / accident / collapse of a structure/ system
caused during erection or during defect liability period
prima facie
appears to be due to negligence of contractor or design deficiency or
poor quality of execution.
m) Assigns, transfers, sublets or attempts to assign, transfer or sublet the
entire Works or any portion thereof without the prior written approval of
the Employer;
n) Misbehavior or physical manhandling by the Agency or his
representative or any person acting on his behalf with any official of
the company dealing with the concerned contract.
o) If NTPC prima-facie of the view that the Agency is guilty of an offence
involving corrupt, fraudulent practices including misrepresentation of
facts as per NTPC Fraud Prevention Policy, moral turpitude in relation
to the business dealings.
p) If the Central Vigilance Commission, Central Bureau of Investigation or
any other Central Government investigation Agency or any other
Central Government Department recommends such a course in
respect of a case under investigation;
q) If the security consideration, including questions of loyalty of the
Agency to the state, so warrants ;
r) The finished work either prematurely fails or fails to give the desired
output/service during the defect liability period and the Agency fails to
rectify it.
s) On any ground as per which doing business dealings with the Agency
is not in the public interest in the opinion of Competent Authority.
t) If the Agency fails to comply with any of the statutory laws and
regulations in force, in totality, even after completion of work.
6.2 Procedure
(a) For Site/Regional/Corporate Packages
The concerned department at Site/Region/Corporate Centre on noticing
any non/under performance and/or irregularities and/or misconduct and/or
unethical practice as mentioned above, shall refer the matter to Convener
of the Standing Committee along with relevant details. The Standing
8
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
Committee shall analyze the referred case and if considered appropriate,
shall put up the proposal for issuing Notice of Default for the purpose of
withholding of business dealings with the Agency for approval of the Head
of Project (for Site packages)/RED (for Regional packages)/CMD (for
Corporate Packages).
In case the Standing Committee recommends waiver of withholding of
business dealings with the Agency, the proposal along with reasons
thereof shall be put up for approval of the RED (for Site packages)/CMD
(for Regional packages)/CMD (for Corporate packages).
All the above proposals shall be routed through Vigilance department.
Besides the Standing Committee, Vigilance Department of each Project /
Unit / Corporate Vigilance may also be competent to initiate the proposal
for withholding.
6.3 Notice of Default
Once the proposal for issuance of Notice of default is approved by the
Competent Authority, a ‘Notice of Default’ duly vetted by legal deptt shall
be issued by the Competent Authority himself or by a person authorized
for the said purpose to the Agency giving them a period of twenty eight
(28) days to remedy the default.
If Agency fails to remedy or take adequate steps to remedy the default to
the satisfaction of NTPC within the notice period mentioned above, then
business dealings shall be withheld with the Agency after approval of the
Competent Authority. The order of such withholding of business dealings
shall be communicated to the Agency (after vetting by legal deptt) by the
Competent Authority himself or by a person authorized for the said
purpose.
6.4 Area of Operation
A decision to withhold business dealings with any Agency for Regional/Site
awarded contracts shall be restricted to such Regions/Sites only and for
Corporate awarded contracts withholding shall apply throughout the
Company.
For Regional/Site wise withholding of any Agency, circular for such
withholding shall be issued by respective Regions/Sites under intimation to
RED and ED (CC&M) and also uploaded at intranet of respective
Regions/Sites. However, in case of company wide withholding of any
9
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
Agency, circular shall be issued by Corporate Contracts and uploaded at
intranet of CC&M.
6.5 Effect of Withholding
The Agency, after issue of order of withholding of business dealings,
would not be allowed to participate in any future tender enquiry and if the
Agency has already participated in any tender process and the price bids
are not opened, his techno-commercial bid will be rejected and price bid
will be returned unopened. However, where the price bids of Agency have
been opened prior to order of withholding, bids of the Agency shall not be
rejected.
6.6 Duration of Withholding
Duration of withholding the Agency shall be for a period of one year.
Within this period, if the Agency rectifies the reason / ground on which
the Agency has been withheld, to the satisfaction of the Competent
Authority, then on written representation of the Agency, the Competent
Authority can review and, if satisfied, may revoke the order of withholding
of business dealing. Provided further that, even till completion of one year
of withholding period, if the Agency does not rectify, then the Competent
Authority after reviewing the situation may issue order extending the
period of withholding for one more year or advise initiation of action for
banning of business dealings with Agency in accordance with the
procedure prescribed in Para 5.2 below.
6.7 Revocation of Orders
An order for withholding of business dealing passed for a certain specified
period, including extension thereof, shall not be revoked automatically.
Such withholding shall be revoked only after order in this respect is issued
with the approval of Competent Authority.
7.
Banning of business dealings
7.1 Grounds on which Banning of business dealings can be initiated
Banning of business dealings can be initiated against Agency, on following
grounds :-
10
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
a) If the Agency fails to accept the award of contract or has abandoned or
repudiated the Contract.
b) If the Contractor is found to be non-performing in execution of contract by
the Screening Committee (nominated as per NTPC established `Contractor
Performance Feedback and Evaluation System’).
c) If a disaster / major failure / accident / collapse of a structure / system is
caused during erection or during defect liability period due to negligence of
contractor or design deficiency or poor quality of execution.
d) Misbehavior or physical manhandling by the Agency or his representative or
any person acting on his behalf with any official of the Company dealing
with the concerned contract is established.
e) If the Director / Owner of the Agency, proprietor or partner of the Agency,
is convicted by a court of law for offences involving corrupt and fraudulent
practices including moral turpitude in relation to its business dealings with
the government or NTPC or NTPC’s group companies, during the last five
years.
f) If the proprietor of the Agency have been guilty of malpractices such as
bribery, corruption, fraud, substitution of the tenders, interpolations, etc.
g) If the Agency continuously refuses to return / refund the dues of NTPC or
NTPC’s group companies, without showing adequate reason and this is not
due to any reasonable dispute which would attract proceedings in
arbitration or court of Law;
h) If the Agency employs a public servant dismissed / removed or employs a
person convicted for an offence involving corruption or abetment of such
offences ;
i) If business dealings with the Agency have been banned by the Ministry of
Power or Government of India and the ban is still in force,
j) If it is established that Agency has resorted to corrupt, fraudulent practices
including misrepresentation of facts;
k) If the Agency uses intimidation/threatening or brings undue outside
pressure on the NTPC or NTPC’s group companies, or its official in
acceptance / performance of the job under the contract.
11
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
l) If the Agency indulges in repeated and / or deliberate use of delay tactics in
complying with contractual stipulations;
m) If the Agency is found to be involved in cartel formation during bidding.
n) On willful indulgence by the Agency in supplying sub-standard material with
respect to Technical Specifications under the Contract irrespective of
whether pre-dispatch inspection was carried out by Company (NTPC) or
not;
o) Based on the findings of the investigation report of CBI/Police against the
Agency for malafide/unlawful acts or improper conduct on his part in
matters relating to the Company (NTPC) or even otherwise;
p) If the Agency is declared bankrupt or insolvent or its financial position has
become unsound, and in the case of a limited company, it is wound up or
liquidated.
q) Established litigant nature of the Agency to derive undue benefit;
r) Continued poor performance of the Agency;
s) If the Agency violates the provisions of the Integrity Pact provided in the
Contract.
t) If the Agency commits fraud as defined under the Fraud Prevention Policy
of NTPC.
u) If the Agency has assigned or transferred the contract or engaged sub-
contractor(s) without the prior approval of the Competent Authority in
violation of the provisions of the contract.
v) If the Agency misuses the premises or facilities of the NTPC forcefully
occupies, tampers or damages the Company’s properties including land,
water resources, forests / trees, etc.
w) If the security consideration, including questions of loyalty of the Agency
to the state, so warrants;
(Note: The examples given above are only illustrative and not exhaustive. The
Competent Authority may decide to ban business dealing for any good and
sufficient reason).
12
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
7.2 Procedure
(a) For Site/Regional Packages where banning is proposed at
Site/Regional level respectively
The concerned department on noticing any non/under performance and/or
irregularities and/or misconduct and/or unethical practice as mentioned
above, shall refer the matter to Convener of the Standing Committee
along with relevant details. The Standing Committee shall analyze the
referred case and if considered appropriate, shall put up the proposal for
issuing Show Cause Notice for the purpose of banning of business
dealings with the Agency for approval of the Competent Authority
In case the Standing Committee recommends waiver of banning of
business dealings with the Agency, the proposal along with reasons
thereof shall be put up for approval of one level above the Competent
Authority.
All the above proposals shall be routed through Vigilance department.
Besides the Standing Committee, Vigilance Department of each Project /
Unit / Corporate Vigilance may also be competent to initiate the proposal
for banning.
(b) For Site Packages where Region wide banning is proposed
For Site cases, if the gravity of the misconduct is such that it would not be
in the interest of the concerned Region as a whole to deal with such an
Agency, the Competent Authority of the Site may put up his
recommendation to RED.
(c) For Site/Regional Packages where Company wide banning is
proposed
For Regional/Site cases, if the gravity of the misconduct is very serious
and it would not be in the interest of NTPC as a whole to deal with such
an Agency, the Competent Authority of the Site/Region may put up his
recommendation to CMD through RED (for site cases), ED(CC&M) and
Chief Vigilance Officer (CVO), NTPC.
13
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
(d) For Corporate Packages
The concerned department on noticing any non/under performance and/or
irregularities and/or misconduct and/or unethical practice as mentioned
above, shall refer the matter to Convener of the Standing Committee along
with relevant details. The Standing Committee shall analyze the referred
case and if considered appropriate, shall put up the proposal for issuing
Show Cause Notice for the purpose of banning of business dealings with
the Agency for approval of the Competent Authority.
In case the Standing Committee recommends waiver of banning of business
dealings with the Agency, the proposal along with reasons thereof shall be
put up for approval of CMD.
All the above proposals shall be routed through Vigilance department.
Besides the Standing Committee, Corporate Vigilance and Screening
Committee (under Contractor Performance Feedback and Evaluation
System) may also be competent to initiate the proposal for banning.
7.3 Show Cause Notice
Once the proposal for issuance of Show Cause Notice is approved by the
Competent Authority, a ‘Show Cause Notice’ duly vetted by legal
department shall be issued by the Competent Authority himself or by a
person authorized for the said purpose to the delinquent Agency. The
Agency shall be asked to submit the reply of Show Cause Notice within 15
days of its issuance. Further, the Agency shall be given an opportunity for
Oral hearing to present its case in person, if it so desires, and the date for
Oral Hearing shall be necessarily indicated in the Show Cause Notice.
In cases where investigation has been carried out by Vigilance
Department or CBI etc., the show cause notice will also be vetted by
Vigilance Department before issuance. Statement containing the
imputation of misconduct or misbehavior may be appended to the Show
Cause Notice.
The purpose of issuing the Show Cause Notice is only that the Agencies
concerned shall be given an opportunity to explain their stand before any
action is taken. All that is required in such cases is that the grounds on
which action is proposed to be taken shall be disclosed to the Agency
inviting representation and after considering that representation, orders
may be passed. Such orders require only the subjective satisfaction of the
authority that passed the final orders.
14
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
If the Agency requests for inspection of any relevant document in
possession of NTPC, necessary facility for inspection of documents may be
provided.
In cases processed by Vigilance deptt, oral hearing shall be conducted by
a separate committee (constituted on case to case basis) comprising
members from C&M and Vigilance deptt. Additional member(s) from any
other deptt/site as considered appropriate may also be co-opted on case
to case basis.
During the conductance of oral hearing, only the regular employees of
Agency will be permitted to represent the Agency and no outsider shall be
allowed to represent the Agency on its behalf.
Reply to the Show Cause Notice given by the Agency and their
submissions in oral hearing, if any, will be processed by the Standing
Committee for obtaining final decision of the Competent Authority in the
matter. Further, reply to the Show Cause Notice given by the Agency and
submissions in oral hearing, if any, with regards to Vigilance cases shall be
processed by a Separate Committee which shall put up its final
recommendations to the Competent Authority in the matter.
In case, no reply to Show Cause Notice is received from the Agency within
stipulated time, action for processing ex-parte against the concerned
Agency shall be initiated
7.4 Speaking Order
The speaking order for banning the business dealing with the Agency shall
be issued (after vetting by legal deptt) by the Competent Authority himself
or by a person authorized for the said purpose. In cases where
investigation has been carried out by Vigilance Department or CBI etc.,
the speaking order will also be vetted by Vigilance Department before
issuance.
7.5 Communication to Agencies
The decision regarding banning of business dealings taken after the issue
of a Show Cause Notice and consideration of representation, if any, in
reply thereto, shall be communicated to the Agency concerned along with
a reasoned order. The fact that the representation has been considered
shall invariably be mentioned in the communication. Also the fact that if
15
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
no reply was received to the Show Cause Notice shall invariably be
indicated in the final communication to the Agency.
7.6 Period of banning
The period for which the ban would be operative may be mentioned in the
order. The banning shall normally be for a period of three years.
However, in cases processed under provisions of Integrity pact and
Contractor Performance Feedback and Evaluation System, the banning
would be operative for a period as specified therein.
In case the information/documents submitted by Agency in competing for
the tender found to be false/forged then NTPC, without prejudice to any
other rights or remedies it may possess, shall recover from Agency the
cost incurred in carrying out physical assessment for establishing veracity
of such information/documents. In case Agency refuses to reimburse such
cost to NTPC then banning period of Agency shall be extended by another
one year.
7.7 Area of Operation
For contracts awarded by Site, banning shall be restricted to such Site
only except where approval has been obtained for Region/Company wide
banning.
For contracts awarded by Region, banning shall be restricted to such
Region only except where approval has been obtained for Company wide
banning.
For contracts awarded by Corporate Centre banning shall apply
throughout the Company.
For Regional/Site wise banning of any Agency, circular for such banning
shall be issued by respective Regions/Sites under intimation to RED and
ED (CC&M). However, in case of company wide banning of any Agency,
circular shall be issued by Corporate Contracts
7.8 Effect of Banning
The Agency, after issue of the order of banning of business dealings,
would not be allowed to participate in any future tender enquiry and if the
16
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
Agency has already participated in tender process and the price bids are
not opened, his techno-commercial bid will be rejected and price bid will
be returned unopened. However, where the price bids of Agency have
been opened prior to order of banning, bids of Agency shall not be
rejected.
7.9 Process of reply
The Agency shall be separately advised of the decision regarding banning
of business, taken in reply to their representation, if any. As regard any
further representation from the Agency, business dealings with whom
have been banned, the same shall be processed by the concerned C&M
department in consultation with Vigilance department, wherever
applicable. If any reply is considered necessary to be sent to the Agency,
the same shall be sent by the concerned C&M Department.
7.10 Hosting at NTPC website
a) The names of the Agencies with whom Business Dealings have been
banned at Site/Region/Company level shall be hosted at NTPC website by
CC&M.
7.11 Appeal against the Decision of the Competent Authority.
The Agency may file an appeal against the order of the Competent
Authority banning of business dealing before Appellate Authority. Such an
appeal shall be preferred within one month from the date of receipt of the
order of banning of business dealing. Appellate Authority would consider
the appeal and pass appropriate order which shall be communicated to
the Agency as well as the Competent Authority.
7.12 Revocation of Orders
a) The banning under ‘Contractor Performance Feedback and Evaluation
System’ shall not be revoked automatically. Such banning shall be revoked
only after re-evaluation of the performance of the Agency by the
Screening Committee as detailed under the `Contractor Performance
Feedback and Evaluation System’.
b) In all other cases, an order for banning passed for a certain specified
period shall be deemed to have been automatically revoked on the expiry
of that specified period and it will not be necessary to issue a specific
formal orders of revocation, except that an order of banning passed on
account of doubtful loyalty or security consideration shall continue to
remain in force until it is specifically revoked.
17
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
c) An order of banning for the reasons mentioned at para 5.1 (e) above may
be revoked if, in respect of the same facts, the accused has been wholly
exonerated by a Court of Law.
6.0 During the banning/withholding period, if it is found at any stage that
Agency has participated in tender enquiry under a different name then
such Agency would immediately be debarred from the tender/contract and
its Bid Security/Performance Security would be forfeited. Payment, if any,
made shall also be recovered.
7.0
Further in case of banning/withholding following would also be applicable:
(i)
Participation of Agency as an Associate/Collaborator of the Main
Contractor
Where Stage-I bids have been opened prior to banning/withholding of
Agency and such Agency has been proposed as Associate/Collaborator
by any of the bidders, in such cases the tendering process shall not be
annulled on this ground and the Agency shall be permitted to continue as
Associate/Collaborator for such bidding.
However where opening of Stage-I bids (Two Stage Bidding) / Envelope-
I Techno-Commercial bids (Single Stage Two Envelope Bidding) has not
taken place prior to banning/withholding of Agency then in such case
Agency shall not be permitted to participate as Associate/Collaborator in
such bidding.
(ii)
Participation of Agency as an approved Sub-Vendor of the Main
Contractor
After banning/withholding order, the banned/withheld Agency shall not
be allowed to participate as Sub-Vendor in the tenders for
supplying/manufacturing equipment (s)/component (s)/service if it has
been banned on grounds of supplying sub-standard
material/equipment/service.
Further, if the banned/withheld agency is an approved Sub-vendor
under any Contract for such equipment/component/service, the Main
Contractor shall not be permitted to place work order/Purchase
order/Contract on the banned/withheld agency as a sub-vendor after
the date of banning/withholding even though the name of the party has
been approved as a sub-vendor earlier.
18
Policy for Withholding/Banning of Business Dealings – Rev 1 dated 16/09/2014
A Maharatna Company
(iii)
Procurement of spares/awarding of Contracts in operating stations
There would be no bar on procuring the spares and awarding Contracts
towards Annual Maintenance (AMC)/ O&M/ Repair works on Agencies
pertaining to the packages for which they have been banned provided
the Equipment has been supplied by such Agency.
NTPC LIMITED
(A Government of India Enterprise)
SECTION – V
SPECIAL CONDITIONS OF CONTRACT
(SCC)
SECTION - V
SPECIAL CONDITIONS OF CONTRACT
The following Special Conditions of Contract (SCC) shall supplement the General Conditions of Contract
(GCC). Wherever there is a conflict, the provisions herein shall prevail over those in the GCC. The
corresponding clause number of the GCC is indicated.
Name of Package:Refer Section- I (IFB)
GCC Clause
Amendments of, and Supplements to, Clauses in the General Conditions of
Contract
1.1 (g)
1.1 (n)
1.1 (o)
The Company/ Employer/ Owner is: NTPC Limited
The Intended Completion Date shall be as specified in Terms of Reference, Section-VI.
The local currency means Indian National Rupees (INR)
GCC 8.1
Domestic Bidders
GCC 18.1
The date the Contract shall be date of issuance of Letter of Award
GCC 21.1
The completion date shall be as specified in Terms of Reference, Section-VI.
GCC 34.4(a)
The Consultant is notified of such actions, claims, losses or damages not later than 06
(six) months after conclusion of the Services.
GCC 34.4(b)
The ceiling on Consultant’s liability shall be limited to Contract Price.
GCC 35.1 (a)
The risks and the coverage shall be as follows:
(a)
Third Party motor vehicle liability insurance in respect of motor vehicles operated in
India by the Consultant or its Personnel or any Sub-Consultants or their Personnel;
(b)
Third Party liability insurance;
(c)
Professional Liability insurance;
(d)
Employer’s Liability and Workers’ Compensation insurance in respect of the
Personnel of the Consultant and of any Sub-Consultant, in accordance with the
relevant provisions of the Applicable Law, as well as, with respect to such
Personnel, any such life, health, accident, travel, or other insurance as may be
appropriate; and
(e)
Insurance against loss of or damage to (i) equipment and materials purchased in
whole or in part with funds provided under this Contract, (ii) the Consultant’s
property used in the performance of the Services, and (iii) any documents prepared
by the Consultant in the performance of the Services.
GCC 37.1(b)
The other actions that shall require Employer’s approval are:
To be decided during Contract execution.
GCC 39.3
The other restrictions about future use of documents and software are: None.
GCC 50.1
GCC 50.2
The Terms of Payment is specified in Section-VI (Terms of Reference).
The Contract price is fixed for the duration of Contract.
2.0 GCC Clause No.74 to be replaced by the followings:
74.0.0 SETTLEMENT OF DISPUTE
74.1.0 Except as otherwise specifically provided in the Contract all disputes concerning questions of fact arising
under the Contract, shall be decided by the Engineer-in-Charge subject to a written appeal by the
Consultant to the Engineer, whose decision shall be final to the parties hereto.
74.2.0 Any disputes or differences including those considered as such by only one of the parties, arising out of or
in connection with the Contract shall be to the extent possible settled amicably between the parties.
74.3.0 If amicable settlement cannot be reached then all disputed issues shall be settled by arbitration as
provided in Clause 74.4.0 herein below.
74.4.0 Settlement of Disputes
74.4.1 Mutual Consultation
If any dispute of any kind whatsoever shall arise between the Employer and the Contractor in connection
with or arising out of the Contract, including without prejudice to the generality of the foregoing, any
question regarding its existence, validity or termination, or the execution of the Works, whether during
the progress of the Works or after their completion and whether before or after the termination,
abandonment or breach of the Contract, the parties shall seek to resolve any such dispute or difference
by mutual consultation. If the parties fail to resolve such a dispute or difference by mutual consultation,
then the dispute may be settled through Expert Settlement Council / Arbitration / other remedies
available under the applicable laws.
74.4.2 Resolution of Dispute through Expert Settlement Council
If the parties fail to resolve such a dispute or difference by mutual consultation, the dispute if the parties
agree, may be referred to Conciliation in cases involving disputed amount up to Rs 250 crores, which is
to be arrived at considering the claim and counter claim of the parties to the dispute.
74.4.2 Invitation for Conciliation:
74.4.2.1 A party shall notify the other party in writing about such a dispute it wishes to refer for Conciliation within
a period of 30 days from the date of raising of the dispute in case of failure to resolve the same through
mutual consultation. Such Invitation for Conciliation shall contain sufficient information as to the dispute
to enable the other party to be fully informed as to the nature of the dispute, amount of the monetary
claim, if any, and apparent cause of action.
74.4.2.2 Upon acceptance of the invitation to conciliate, the other party shall submit its counter claim, if any,
within a period of 30 days from the date of the invitation to conciliate. If the other party rejects the
invitation or disputed amount exceeds Rs 250 crores, there will be no Conciliation proceedings. There
shall be no Conciliation where claim amount is only up to Rs 5 lakhs.
74.4.2.3 If the party initiating Conciliation does not receive a reply within thirty days from the date on
which it sends the invitation, or within such other period of time as specified in the invitation, it shall treat
this as a rejection of the invitation to conciliate from the other party.
74.4.3 Conciliation:
74.4.3.1 Where Invitation for Conciliation has been furnished under GCC sub clause 74.4.2,the parties shall
attempt to settle such dispute through Expert Settlement Council (ESC) which shall be constituted by
CMD, NTPC.
74.4.3.2 ESC will be formed from experts comprising of three members from the panel of conciliators maintained
by NTPC. However, there will be single member ESC for disputes involving claim and counter claim (if
any) up to Rs. 1 crore. CMD will have authority to reconstitute an ESC to fill any vacancy.
74.4.3.3 The eligible persons for consideration for empanelment in the panel of conciliators shall be amongst
Retired Civil Servants of Govt. of India not below the rank of Joint Secretary, Retired Judges, Retired
Executive directors/Directors/ Chairman of any Maharatna / Navratna company in India other than NTPC
Ltd, Retired Independent Directors who have served on the Board of any Maharatna / Navratna
company in India other than NTPC Ltd and Independent experts in their respective fields preferably
registered with the Indian Council of Arbitration or Delhi International Arbitration Centre or
Federation of Indian Chambers of Commerce and Industry or SCOPE Arbitration Forum.
74.4.4 Proceedings before ESC:
74.4.4.1 The claimant shall submit its statement of claims along with relevant documents to ESC members, and
to the party(s) indicated in the appointment letter within 30 days of the issue of the appointment letter.
The respondent shall file its reply and counter claim (if any) within 30 days of the receipt of the
statement of claims. Parties may file their rejoinder/additional documents, if any in support of their
claim/counterclaim within next 15 days. No documents shall be allowed thereafter, except with the
permission of ESC.
74.4.4.2 The parties shall file their claim and counterclaim in the following format
a. Chronology of the dispute
b. Brief of the contract
c. Brief history of the dispute
d. Issues
Sl. No.
Description of
Claims/ Counter
claims
Amount (in
foreign
currency/INR)
Relevant Contract Clause
e. Details of Claim(s)/Counter Claim(s)
f. Basis/Ground of claim(s)/counter claim(s) (along with relevant clause of contract
Note: Statement of claims shall be restricted to maximum limit of 20 pages.
74.4.4.3 In case of 3 members ESC, 2 members will constitute a valid quorum and the meeting can take place
to proceed in the matter after seeking consent from the member who is not available. However, ESC
recommendations will be signed by all the members.
74.4.4.4 The parties shall be represented by their in house employees. No party shall be allowed to bring any
advocate or outside consultant/advisor/agent to contest on their behalf. Ex-officers of NTPC who have
handled the subject matter in any capacity shall not be allowed to attend and present the case
before ESC on behalf of contractor. However, ex-employees of parties may represent their
respective organizations. Parties shall not claim any interest on claims/counter-claims from the date of
notice invoking Conciliation till execution of settlement agreement, if so arrived. In case, parties are
unable to reach a settlement, no interest shall be claimed by either party for the period from the date of
notice invoking Conciliation till the date of ESC recommendations and 30 days thereafter in any further
proceeding.
74.4.4.5 ESC will conclude its proceedings in maximum 10 meetings, and give its
recommendations within 90 days of its first meeting. ESC will give its recommendations to both the
parties recommending possible terms of settlement. CMD, NTPC may extend the time/number of
meetings, in exceptional cases, if ESC requests for the same with sufficient reasons.
74.4.4.6 Depending upon the location of ESC members and the parties, the venue of the ESC meeting shall be
either Delhi/Mumbai/Kolkata/Chennai or any other city whichever is most economical from the point of
view of travel and stay etc. All the expenditure incurred in ESC proceedings shall be shared by the
parties in equal proportion.
74.4.5
Fees & Facilities to the Members of the ESC
The cost of Conciliation proceedings including but not limited to fees for Conciliator, Airfare, Local
transport, Accommodation, cost towards conference facility etc shall be as provided herein below:
S. No.
Fees/ Facility
Entitlement
1
Fees
As paid to NTPC Independent Directors [Presently Rs.
20,000 per meeting]. In addition each conciliator to be
paid Rs. 10,000 for attending meeting to
authenticate the settlement agreement - max. of Rs.
2,10,000 per case per Conciliator.
2
Secretarial expenses
Rs. 10,000 lump sum (to 1 member only).
3
Transportation in the city of
the meeting
Car as per entitlement or Rs. 2,000 per day
4
Venue for meeting
NTPC conference rooms
Facilities to be provided to the out-stationed member
5
Travel from the city of
residence to the city of
meeting
As per entitlement of Independent Directors. Executive
class air tickets / first class AC train tickets/ Luxury car/
reimbursement of actual fare. However, entitlement of air
travel by Business class shall be subject to austerity
measures, if any, ordered by Govt. of India.
6
Transport to and fro airport/
railway station in the city of
residence
Car as per entitlement or Rs. 3,000
S. No.
Fees/ Facility
Entitlement
7
Stay for out stationed
members
As per entitlement of Independent Directors.
8
Transport in the city of
meeting
Car as per entitlement or Rs. 2000 per day
Aforesaid fees is subject to revision by NTPC from time to time and subject to government guidelines on
austerity measures, if any. All the expenditure incurred in the ESC proceedings shall be shared by the
parties in equal proportions. The Parties shall maintain the account of expenditure and present to the
other for the purpose of sharing on conclusion of the ESC proceedings.
74.4.6 If decision of NTPC is acceptable to the contractor, a Settlement Agreement under section 73 of the
Arbitration and Conciliation Act 1996 will be signed within 15 days of contractor’s acceptance and same
shall be authenticated by all the ESC members. Parties are free to terminate Conciliation proceedings at
any stage as provided under the Arbitration and Conciliation Act 1996.
74.4.7 The parties shall keep confidential all matters relating to the Conciliation proceedings. Parties shall not
rely upon them as evidence in arbitration proceedings or court proceedings.
74.5 Arbitration
74.5.1 If the process of mutual consultation and/or ESC fails to arrive at a settlement between the parties as
mentioned at GCC Sub-Clauses, Employer or the Contractor may, within Thirty (30) days of such
failure, give notice to the other party, with a copy for information to the ESC (as applicable), of its
intention to commence arbitration, as hereinafter provided, as to the matter in dispute, and no
arbitration in respect of this matter may be commenced unless such notice is given. The mechanism of
settling the disputes through arbitration shall be applicable only in cases where the disputed amount (i.e.
total amount of Claims excluding claims of interest) does not exceed Rs. 25 crores. In case the disputed
amount exceeds Rs. 25 Crores, the parties shall be within their rights to take recourse to remedies as
may be available to them under the applicable laws other than Arbitration after prior intimation to the
other party. There shall be no arbitration where the claim amount is only up to Rs. 5 lakhs.
The parties at the time of invocation of arbitration shall submit all the details of the claims and the
counter-claims including the Heads/Sub-heads of the Claims/Counter-Claims and the documents relied
upon by the parties for their respective claims and counter-claims. The parties shall not file any
documents/details of the claims and counter-claims thereafter.
The claims and the counter claims raised by the parties at the time of invocation of the arbitration shall
be final and binding on the parties and no further change shall be allowed in the same at any stage
during arbitration under any circumstances whatsoever.
The parties to the contract shall invoke arbitration within Six months from the date of completion of the
execution of work under the contract or the termination of the contract as the case may be and the
parties shall not invoke arbitration later on after expiry of the said period of six months. The parties shall
not invoke arbitration other than in the case of completion of execution of work or the termination of the
contract as mentioned above.
Notwithstanding the above, in case of disputes with Indian Contractor who is a Central Government
Department /Enterprise /organisation or a State Level Public Enterprise (SLPE), the aforesaid limit of Rs
25 crores shall not be applicable and arbitration proceeding may be commenced irrespective of the
amount involved in dispute if the dispute could not be resolved through Conciliation as brought out at
GCC Sub Clause 34 above.
74.5.2 Any dispute in respect of which a notice of intention to commence arbitration has been given, in
accordance with GCC, shall be finally settled by arbitration.
74.5.3 Any dispute raised by a party to arbitration shall be adjudicated by a Sole Arbitrator appointed by CMD,
NTPC from the List of empanelled Arbitrators of NTPC in the following manner :-
a) A party willing to commence arbitration proceeding shall invoke Arbitration Clause by giving 60 days
notice to the other party.
b) If the Arbitrator so appointed dies, resigns, becomes incapacitated or withdraws for any reason from the
proceedings, it shall be lawful for CMD, NTPC to appoint another person in his place in the same
manner as aforesaid. Such person shall proceed with the reference from the stage where his
predecessor had left.
c) It is agreed between the parties that the Arbitration proceedings shall be conducted as per the
provisions of Fast Track Procedure as provided under section 29B of the Arbitration and Conciliation
Act, 1996 as amended.
d) Arbitrator shall be paid fees at the following rates:
Amount of Claims and Counter
Claims (excluding interest)
Lump sum fees (including fees for study of pleadings, case
material, writing of the award, secretarial charges etc.) to
be shared equally by the parties.
Upto Rs 50 lakhs
Rs. 10,000 per meeting subject to a ceiling of Rs. 1,00,000/-.
Above Rs 50 lakhs to Rs 1 crore
Rs. 1,35,000/- plus Rs. 1,800/- per lakh or a part there of
subject to a ceiling of Rs. 2,25,000/-.
Above Rs. 1 crore and upto Rs. 5
Crores
Rs. 2,25,000/- plus Rs. 33,750 per crore or a part there of
subject to a ceiling of Rs. 3,60,000/-.
Above Rs. 5 crores and upto Rs.
10 crores.
Rs. 3,60,000/- plus Rs. 22,500/- per crore or a part there of
subject to a ceiling of Rs. 4,72,500/-.
Above Rs. 10 crores
Rs. 4,72,500 plus Rs. 18,000/- per crore or part thereof subject
to a ceiling of Rs. 10,00,000/-.
If the claim is in foreign currency, the SBI Bills Selling Exchange rate prevailing on the date of claim
shall be used for the purpose of converting the claim in Indian Rupee which may be used for
determining the arbitration fee as brought out above.
e) If after commencement of the Arbitration proceedings, the parties agree to settle the dispute mutually
or refer the dispute to Conciliation, the arbitrator shall put the proceedings in abeyance until such
period as requested by the parties. Where the proceedings are put in abeyance or terminated on
account of mutual settlement of dispute by the parties, the fees payable to the arbitrator shall be
determined as under:
(i) 40% of the fees if the Pleadings are complete.
(ii) 60% of the fees if the Hearing has commenced.
(iii) 80% of the fees if the Hearing is concluded but the Award is yet to be passed.
f) Each party shall pay its share of arbitrator’s fees in stages as under:
(i) 40 % of the fees on Completion of Pleadings.
(ii) 40% of the fees on Conclusion of the Final Hearing.
(iii) 20% at the time when arbitrator notifies the date of final award.
g) The Claimant shall be responsible for making all necessary arrangements for the travel/ stay of the
Arbitrator including venue of arbitration, hearings. The parties shall share the expenses for the same
equally.
h) The Arbitration shall be held at Delhi only.
i) The Arbitrator shall give reasoned and speaking award and it shall be final and binding on the parties.
j) Subject to the aforesaid conditions, provisions of the Arbitration and Conciliation Act, 1996 and any
statutory modifications or re-enactment thereof shall apply to the arbitration proceedings under this
clause.
74.5.4 In case the Indian Contractor is a Central Government Department/Enterprise/organisation or a State
Level Public Enterprise (SLPE), the dispute arising between the Employer and the Contractor shall be
referred for resolution to the Permanent Machinery of Arbitrators (PMA) of the Department of Public
Enterprises, Government of India as per Office Memorandum issued by Government of India, Ministry
of Heavy Industries and Public Enterprises, Department of Public Enterprises and its further
modifications and amendments.
74.6 Notwithstanding any reference to the Conciliation or Arbitration herein,
(a) the parties shall continue to perform their respective obligations under the Contract
unless they otherwise agree.
(b) the Employer shall pay the Contractor any monies due to the Contractor.