rfp draft umpp sbd 17082015

8/17/2019 Rfp Draft Umpp Sbd 17082015

1/85

RFP for Long-Term Power Procurement from a Specified location and fuel source

(17.08.15)

i

STANDARD

REQUEST FOR PROPOSAL

For

Procurement of Power on a Long-Term basis from the [insert capacity in MW] Ultra Mega

Power Project to be set up at [specify location, district and State] sourcing coal from the

[insert the name of allocated domestic Captive Coal Blocks]

(As per the Guidelines issued by the Ministry of Power in terms of Section 63 of the

Electricity Act, 2003)

Issued by [Name of the Lead Procurer]

Through

Project Incharge, [Name of UMPP]

[address][Phone No.]

[Fax No.]

[Email id]

ON BEHALF OF PROCURERS

[Date of issuance(dd-mm-yyyy)]

Ministry of Power

Government of India


2/85


(17.08.15)

ii

TABLE OF CONTENTS

S. No. Contents Page No.

Letter of Invitation ivDisclaimer v

Glossary vii

1 Introduction 1

1.1 Background 1

1.2 Brief description of Bidding Process 2

1.3

1.4

1.5

Schedule of Bidding Process

Phased Implementation

Price of the Power Station Land, Captive Coal BlockLand and R&R Cost

3

5

5

2 Instructions to Bidders 7

A General 7

2.1 General terms of Bidding 7

2.2 Change in composition of the Consortium 11

2.3 Change in Ownership 12

2.4 Cost of Bidding 13

2.5 Visit to the Power Station Land and the Captive Coal

Block Land

13

2.6 Request for Information 14B Documents 15

2.7 Contents of the RFP 15

2.8 Clarifications 16

2.9 Amendment of RFP 16

C Preparation and Submission of Bids 17

2.10 Format and Signing of Bid 17

2.11 Bid Due Date 18

2.12 Late Bids 18

2.13 Contents of the Bid 18

2.14 Modifications/ Substitution/ Withdrawal of Bids 19

2.15 Rejection of Bids 19

2.16 Bid Validity 19

2.17 Confidentiality 19

2.18 Correspondence with the Bidder 20


3/85


(17.08.15)

iii

D Bid Security 20

2.19 Bid Security 20

2.20 Performance Guarantee 21

E BID PARAMETERS 22

2.21 Bid Parameters 22

3 Evaluation of Bids 23

3.1 Evaluation of Bids 23

3.2 Opening and Evaluation of Non-Financial Bids 23

3.3 Step I - Responsiveness check of Non-Financial Bids 23

3.4 Step II - Evaluation of Bids 24

3.5 Step III– Successful Bidder Selection 25

3.6 Selection of Bidder 25

3.7 Contacts during Bid Evaluation 26

4 Fraud and Corrupt Practices 27

5 Pre-Bid Conference 29

6 Miscellaneous 30

Appendices 31

I Letter comprising the Bid 31

II Bank Guarantee for Bid Security 36

III Power of Attorney for signing of Bid 39

IV Power of Attorney for Lead Member of Consortium 41

V Format for the Bid 43VI Performance Guarantee Format 45

VII Draft Share Purchase Agreement 48

VIII Draft Default Escrow Agreement 49

IX Draft Agreement to Hypothecate cum Deed of Hypothecation 70

X Draft Land Lease Agreement – I 71

XI Draft Allocated Coal Block Land Lease Agreement 72

XII Methodology of computation of Levelised Tariff and LevelisedFixed Charge 73

XIII Draft Power Purchase Agreement 74

XIV List of Bid-specific Clauses 75

XV List of Project-specific Clauses 76


4/85


(17.08.15)

iv

[NAME AND ADDRESS OF THE LEAD PROCURER/AUTHORISED R EPRESENTATIVE]

LETTER OF INVITATION

Dated ……….

To,

……………………………………

…………………Sub: RFP for *** Project

Dear Sir,

Pursuant to your application in response to our Request for Qualification for the

aforesaid project ("RFQ"), you were qualified as a Bidder, and asked vide our letter dated…………. to remit the fee for Bidding Documents. We acknowledge your remittance of

[Rs. *** (Rs. ***)]1 as the cost of procuring the Bidding Documents, which are enclosed.

You are requested to participate in the Bid Stage and submit your financial

proposal ("Bid”) for the aforesaid project in accordance with the Request for Proposal(“RFP”).

Please note that the Procurers reserve the right to accept or reject all or any of theBids without assigning any reason whatsoever.

Thanking you,

Yours faithfully,

(Signature, name and designation of the Signatory)

1Rs20,000 (Rupees twenty thousand) for every Rs. 100 crore (Rupees hundred crores) of the Estimated

Project Cost.


5/85


(17.08.15)

v

DISCLAIMER

The information contained in this Request for Proposal document (the “RFP”) or

subsequently provided to Bidder(s), whether verbally or in documentary or any other

form by or on behalf of the Procurers or any of its employees or advisors, is provided to

Bidder(s) on the terms and conditions set out in this RFP and such other terms andconditions subject to which such information is provided.

This RFP is not an agreement and is neither an offer nor invitation by the Procurers to the

prospective Bidders or any other person. The purpose of this RFP is to provide interested

parties with information that may be useful to them in making their financial offers (Bids) pursuant to this RFP. This RFP includes statements, which reflect various assumptions

and assessments arrived at by the Procurers in relation to the Project. Such assumptions,

assessments and statements do not purport to contain all the information that each Biddermay require. This RFP may not be appropriate for all persons, and it is not possible for

the Procurers, its employees or advisors to consider the investment objectives, financial

situation and particular needs of each party who reads or uses this RFP. The assumptions,assessments, statements and information contained in the Bidding Documents, especially

the Feasibility Report, may not be complete, accurate, adequate or correct.

Information provided in this RFP to the Bidder(s) is on a wide range of matters, some of

which may depend upon interpretation of law. The information given is not intended to

be an exhaustive account of statutory requirements and should not be regarded as a

complete or authoritative statement of law. The Procurers accepts no responsibility forthe accuracy or otherwise for any interpretation or opinion on law expressed herein.

The Procurers, its employees and advisors make no representation or warranty and shall

have no liability to any person, including any Applicant or Bidder under any law, statute,

rules or regulations or tort, principles of restitution or unjust enrichment or otherwise forany loss, damages, cost or expense which may arise from or be incurred or suffered on

account of anything contained in this RFP or otherwise, including the accuracy,adequacy, correctness, completeness or reliability of the RFP and any assessment,

assumption, statement or information contained therein or deemed to form part of this

RFP or arising in any way for participation in this Bid Stage.

The Procurers also accepts no liability of any nature whether resulting from negligence or

otherwise howsoever caused arising from reliance of any Bidder upon the statements

contained in this RFP.

The Procurers may in its absolute discretion, but without being under any obligation to doso, update, amend or supplement the information, assessment or assumptions contained inthis RFP.

The issue of this RFP does not imply that the Procurers is bound to select a Bidder or toappoint the Successful Bidder, for the Project and the Procurers reserve the right to reject

all or any of the Bidders or Bids without assigning any reason whatsoever.


6/85


(17.08.15)

vi

The Bidder shall bear all its costs associated with or relating to the preparation and

submission of its Bid including but not limited to preparation, copying, postage, deliveryfees, expenses associated with any demonstrations or presentations which may be

required by the Procurers or any other costs incurred in connection with or relating to its

Bid. All such costs and expenses will remain with the Bidder and the Procurers shall not

be liable in any manner whatsoever for the same or for any other costs or other expensesincurred by a Bidder in preparation or submission of the Bid, regardless of the conduct oroutcome of the Bidding Process.


7/85


(17.08.15)

vii

GLOSSARY2

Associate As defined in Clause 2.1.12

Bank Guarantee As defined in Clause 2.19.1

Bid(s) As defined in Clause 1.2.2

Bidders As defined in Clause 1.1.1Bidding Documents As defined in Clause 1.1.5

Bid Due Date As defined in Clause 1.1.5

Bidding Process As defined in Clause 1.2.1

Bid Security As defined in Clause 1.2.4

Bid Stage As defined in Clause 1.2.1

BOO As defined in Clause 1.1.1 Conflict of Interest As defined in Clause 2.1.12

Damages As defined in Clause 2.1.12

Envelope I As defined in Clause 2.10.3

Envelope II As defined in Clause 2.10.4

Estimated Project Cost As defined in Clause 1.1.3Feasibility Report As defined in Clause 1.2.3

Lowest Bidder As defined in Clause 1.2.6

LOA As defined in Clause 3.6.5

Member Member of a Consortium

Non-Financial Bid As defined in 2.10.3

PPA As defined in Clause 1.1.2

Procurers As defined in Clause 1.1.1

Project As defined in Clause 1.1.1 Qualification Stage As defined in Clause 1.2.1

Re. or Rs. or INR Indian Rupee

RFP or Request for Proposal As defined in the DisclaimerRFQ As defined in Clause 2.1.2

Seller As defined in Clause 1.1.2

Successful Bidder As defined in Clause 3.6.1

Tariff As defined in Clause 1.2.6

The words and expressions beginning with capital letters and defined in thisdocument shall, unless repugnant to the context, have the meaning ascribed thereto

herein. The words and expressions beginning with capital letters and not defined

herein, shall have the meaning ascribed to them in the RFQ.

2Serially numbered footnotes are for guidance of the Procurers and should be omitted prior to issue of RFP.

Footnotes marked in non-numerical characters shall be retained in the RFP.


8/85


(17.08.15)

viii


9/85


(17.08.15)

1

[Name of the Procurers]3

(Collectively referred to as the “Procurers”)

1. INTRODUCTION

1.1 Background

1.1.1 The Procurers have decided to procure the entire power from the Power Stationwith an Installed Capacity of about [***] MW located at [***]

4 to be developed

on a Build, Own, and Operate (BOO) on Supercritical Technology throughPublic-Private Partnership ( “PPP”) basis on the Power Station Land located at

[***]; by sourcing coal from the domestic Captive Coal Blocks to be developed

by the Seller (“Project”) , and have decided to carry out the Bidding Process forselection of a corporate entity or Consortium as the Bidder to whom the Project

may be awarded.

The Procurers have qualified the suitable Applicants (“Bidders”) who are eligible

for participation in the Bid Stage, for awarding the Project through an open

competitive bidding process in accordance with the procedure set out herein.

1.1.2 The Successful Bidder shall acquire the entire shares of the [***]5(“Seller”)

which has been incorporated by [***]6 on behalf of the Procurers, by executing

the Share Purchase Agreement. Pursuant to the acquisition, the Seller shall beresponsible for developing, managing, operating and maintaining the Project and

supplying the power to the Procurers under and in accordance with the provisions

of a long term agreement for purchase of power (“Power Purchase Agreement”

or the “PPA”, in the form attached herein as Appendix XIII as amended ormodified prior to the Bid Due Date) to be entered into between the Seller and the

Procurers in the form provided by the Procurers as part of the Bidding Documents pursuant hereto.

1.1.3 The estimated cost of the Project is [***]7(“Estimated Project Cost”). The

assessment of actual costs, however, will have to be made by the Bidders.

1.1.4 The statements and explanations contained in this RFP are intended to provide a

better understanding to the Bidders about the subject matter of this RFP andshould not be construed or interpreted as limiting in any way or manner the scope

of services and obligations of the Successful Bidder/Seller set forth in the PPA orthe Procurers’ rights to amend, alter, change, supplement or clarify the scope of

3 Insert the name of the Procurers4 Specify the location, District and State5Insert the name of the Operating SPV6Insert the name of the entity authorised by the Procurers7This amount shall be determined by the CEA and should be obtained by the Procurers from the CEA prior

to initiating the Bidding Process.


10/85


(17.08.15)

2

work, the Project to be awarded pursuant to this RFP or the terms thereof or

herein contained. Consequently, any omissions, conflicts or contradictions in theBidding Documents including this RFP are to be noted, interpreted and applied

appropriately to give effect to this intent, and no claims on that account shall be

entertained by the Procurers.

1.1.5 The Procurers shall receive Bids pursuant to this RFP in accordance with theterms set forth in this RFP and other documents to be provided by the Procurers

pursuant to this RFP, as modified, altered, amended and clarified from time to

time by the Procurers (collectively "Bidding Documents"), and all Bids shall be

prepared and submitted in accordance with such terms on or before the datespecified in Clause 1.3 for submission of Bids (“Bid Due Date”).

1.2 Brief description of Bidding Process

1.2.1 The bidding shall be conducted by adopting a two-stage process (collectively

referred to as "Bidding Process") for selection of the Successful Bidder for awardof the Project. The first stage ("Qualification Stage") of the process involved

qualification of interested parties/ Consortia in accordance with the provisions of

the RFQ. At the end of the Qualification Stage, the Procurers announced the listof qualified Applicants who are eligible for participation in this second stage of

the Bidding Process (“Bid Stage”) comprising Request for Proposals.

1.2.2 In the Bid Stage, the aforesaid qualified Applicants, including their successors,("Bidders”,which expression shall, unless repugnant to the context, include the

Members of the Consortium) are being called upon to submit their financial offers

(“Bids”) in accordance with the terms specified in the Bidding Documents. The

Bid shall be valid for a period of not less than 120 days from the Bid Due Date.

1.2.3 The PPA had been enclosed alongwith the RFQ. The draft/approved R&RPackage, Feasibility Report prepared by the Procurers/consultants of the Procurers

("Feasibility Report") and other study reports has been enclosed/ will be

provided to the Bidders at least 45 days prior to the Bid Due Date. Subject to the

provisions of Clause 2.1.3, the aforesaid documents and any addenda issuedsubsequent to this RFP, will be deemed to form part of the Bidding Documents.

1.2.4 A Bidder is required to deposit, along with its Bid, a bid security of Rs ***8 ("Bid

Security")in the form of a bank guarantee as per format at Appendix-II,

refundable not later than 60(sixty) days from the Bid Due Date, except in the caseof the Successful Bidder whose Bid Security shall be retained till it has provided aPerformance Guarantee in the format annexed hereto as Appendix-VI and

executed the PPA. The validity period of the Bid Security shall not be less than

180 (one hundred and eighty) days from the Bid Due Date, inclusive of a claim period of 60 (sixty) days, and may be extended as may be mutually agreed

8 The Bid Security shall be an amount equivalent to 0.5% of the Estimated Project Cost.


11/85


(17.08.15)

3

between the Procurers and the Bidder from time to time. The Bid shall be

summarily rejected if it is not accompanied by the Bid Security.1.2.5 During the Bid Stage, Bidders are invited to examine the Project in greater detail,

and to carry out, at their cost, such studies as may be required for submitting their

respective Bids for award and implementation of the Project.

1.2.6 Bids are invited for the Project on the basis of a tariff to be offered by a Bidder forand in respect of the Project. For the purposes of bidding hereunder, the Fixed

Charge and Variable Charge will constitute the tariff for the Power Station

(“Tariff”). The Term of the PPA shall be pre-determined and specified in the

Bidding Documents.

In this RFP, the term “Lowest Bidder” shall mean the Bidder who is offering the

lowest Tariff.

1.2.7 Generally, the Lowest Bidder shall be the Successful Bidder. The remaining

Bidders shall be kept in reserve and may, in accordance with the process specifiedin Clause 3 of this RFP, be invited to match the Bid submitted by the Lowest

Bidder in case such Lowest Bidder withdraws or is not selected for any reason. In

the event that none of the other Bidders match the Bid of the Lowest Bidder, theProcurers may, in its discretion, either invite fresh Bids from the remaining

Bidders or annul the Bidding Process.

1.2.8 Other details of the process to be followed at the Bid Stage and the terms thereofare spelt out in this RFP.

1.2.9 Any queries or request for additional information concerning this RFP shall be

submitted in writing or by fax and e-mail to the officer designated in Clause2.10.7below.The envelopes/ communication shall clearly bear the following

identification/ title:

"Queries/Request for Additional Information: RFP for ***UMPP".

1.3 Schedule of Bidding Process

The Procurers shall endeavour to adhere to the following schedule:

Event Description Date

1 Last date for receiving queries (25 days from the date of RFP) 2 Pre-Bid conference-1 (To be specified)

3 Procurers response to queries

latest by

(35 days from the date of RFP)9

4 (Pre-Bid conference -2)10

(To be specified)

9Insert a date that is atleast 10 days prior to the Bid Due Date10 In case of complex projects, the number of pre-bid meetings could be more than two.


12/85


(17.08.15)

4

5 Bid Due Date (To be specified)

6 Opening of Non-FinancialBids

On Bid Due Date (at least 45 daysfrom the date of RFP)

7 Opening of Bids (Within 15 days of the Bid Due

Date)

8 Letter of Award (LOA) Within 30 days of Bid Due Date9 Bid Validity 120 days of Bid Due Date

10

Execution of the followingdocuments:

(i) Share PurchaseAgreement and

acquisition of 100%

Equity in the Seller as per the format attached

herein as Appendix-

VII;(ii) Performance Guarantee

as per the format

attached herein as

Appendix-VI;(iii) Execution of the

Default Escrow

Agreement and theAgreement to

Hypothecate cum Deed

of Hypothecation by

the Procurers with theconcerned parties as

per the formats

attached herein as

Appendix-VIII and

Appendix- IX respectively, if notalready executed;

(iv) Execution of the LandLease Agreement-1 between the [***]

11and

the Seller as per theformat attached herein

as Appendix-X, if notalready executed;

(v) Execution of theAllocated Captive Coal

Within 60 days of award of LOA

11 Insert name of Infrastructure SPV


13/85


(17.08.15)

5

Block Land LeaseAgreement between the

[***]12

and the Seller

in the format attachedherein as Appendix-

XI, if not alreadyexecuted; and

(vi) Execution of the PPA.

1.4 Phased Implementation

The Bidders may, at their option, undertake the financing and construction of theProject in two phases, in accordance with the terms specified in the PPA with the

first phase comprising of atleast50% of the Installed Capacity.

1.5 Price of the Power Station Land, Captive Coal Block Land and R&R Cost

The cost of the following shall be made known to the bidders At least thirty (30)

days prior to Bid Due Date:

1.5.1 Power Station Land: The estimated cost of the Power Station Land (“DeclaredPrice of the Power Station Land”), comprising of the cost of Land -1 which shall be paid in the form of lease rent by the Seller to the [***]

13 in terms of the Land

Lease Agreement-1 and the estimated price for the acquisition of Land -2

(“Declared Price of the Power Station Land-2”). Any amount expended by theSeller over and above the Declared Price of Land-2 shall be dealt with in

accordance with the provisions of the PPA.

1.5.2 Captive Coal Block Land: The estimated cost of the Captive Coal Block Landalongwith the mining rights therein (“Declared Price of the Captive Coal BlockLand”), comprising of the cost of Allocated Captive Coal Block Land, which shall

be paid in the form of lease rent by the Seller to the [***]14

in terms of the CaptiveCoal Block Lease Agreement and the estimated price for the acquisition of the

Remaining Captive Coal Block Land (“Declared Price of the Remaining CaptiveCoal Block Land”). Any amount expended by the Seller over and above theDeclared Price of the Remaining Captive Coal Block Land shall be dealt with in


1.5.3 R&R Cost-The estimated cost of the R&R package as furnished to the Bidderswith regard to the Power Station Land and the Captive Coal Block Land(“Declared Price of the R&R Package”). Any amount expended by the Seller

over and above the Declared Price of the R&R Package shall be dealt with in


12 Insert name of Infrastructure SPV13 Insert name of Infrastructure SPV14 Insert name of Infrastructure SPV


14/85


(17.08.15)

6

1.5.4 Acquisition of the 100% Equity in the Seller-The acquisition price of the

100%Equity in the Seller.


15/85


(17.08.15)

7

2. INSTRUCTIONS TO BIDDERS

A. GENERAL

2.1. General terms of Bidding

2.1.1 No Bidder shall submit more than one Bid for the Project. A Bidder biddingindividually or as a member of a Consortium shall not be entitled to submit

another bid either individually or as a member of any Consortium, as the case may

be.

2.1.2 Unless the context otherwise requires, the terms not defined in this RFP, butdefined in the Request for Qualification document for the Project (the “RFQ”)

shall have the meaning assigned thereto in the RFQ.

2.1.3 The Feasibility Report and other study reports of the Project are being provided

only as a preliminary reference document by way of assistance to the Bidders whoare expected to carry out their own surveys, investigations and other detailed

examination of the Project before submitting their Bids. Nothing contained in the

Feasibility Report and other study reports shall be binding on the Procurers norconfer any right on the Bidders, and the Procurers shall have no liability

whatsoever in relation to or arising out of any or all contents of the Feasibility

Report and other study reports.

2.1.4 Notwithstanding anything to the contrary contained in this RFP, the detailed termsspecified in the PPA shall have overriding effect; provided, however, that any

conditions or obligations imposed on the Bidder hereunder shall continue to have

effect in addition to its obligations under the PPA.

2.1.5 The Bid should be furnished in the format at Appendix -V, clearly indicating the bid amount in figures, in Rupees/kWh upto three decimals, and signed by the

Bidder’s authorised signatory.

2.1.6 The Bid shall consist of a Tariff to be quoted by the Bidder, as per the terms andconditions of this RFP and the provisions of the PPA.

2.1.7 The Bidder should submit a Power of Attorney as per the format at Appendix– III, authorising the signatory of the Bid to commit the Bidder.

2.1.8 In case the Bidder is a Consortium, the Members thereof should furnish a Powerof Attorney in favour of the Lead Member in the format at Appendix–IV.

2.1.9 Any condition or qualification or any other stipulation contained in the Bid shallrender the Bid liable to rejection as a non-responsive Bid.


16/85


(17.08.15)

8

2.1.10 The Bid and all communications in relation to or concerning the BiddingDocuments and the Bid shall be in English language.

2.1.11 The documents including this RFP and all attached documents, provided by theProcurers are and shall remain or become the property of the Procurers and are

transmitted to the Bidders solely for the purpose of preparation and thesubmission of a Bid in accordance herewith. Bidders are to treat all information asstrictly confidential and shall not use it for any purpose other than for preparation

and submission of their Bid. The provisions of this Clause 2.1.11 shall also apply

mutatis mutandis to Bids and all other documents submitted by the Bidders, and

the Procurers will not return to the Bidders any Bid, document or any information provided along therewith.

2.1.12 A Bidder shall not have a conflict of interest (the “Conflict of Interest”) thataffects the Bidding Process. Any Bidder found to have a Conflict of Interest shall

be disqualified. In the event of disqualification, the Procurers shall be entitled to

forfeit and appropriate the Bid Security or Performance Guarantee, as the casemay be, as mutually agreed genuine pre-estimated loss and damage likely to be

suffered and incurred by the Procurers and not by way of penalty for, inter alia,

the time, cost and effort of the Procurers, including consideration of such Bidder’s proposal (the “Damages”), without prejudice to any other right or remedy that

may be available to the Procurers under the Bidding Documents and/ or the PPA

or otherwise.

(i) the Bidder , its Member or Associate (or any constituent thereof) and any

other Bidder, its Member or any Associate thereof (or any constituent

thereof) have common controlling shareholders or other ownershipinterest;

Provided that this disqualification shall not apply in cases where

(a) the direct or indirect shareholding of a Bidder, its Member or an

Associate thereof (or any shareholder thereof) in the other Bidder, itsMember or Associate, is less than 5% (five per cent) of the subscribed

and paid up equity share capital thereof;

(b) the ownership is by a bank, insurance company, pension fund or a public financial institution as defined in section 2(72) of the

Companies Act, 2013.

The provisions of Clause 2.1.12 (i), (iii) and (v) shall not apply to government entities.

Shareholder for the purposes of clause 2.1.12 (i) shall be the shareholder having a shareholding of morethan5% (five percent) of the paid up and subscribed share capital of such Bidder, Member or Associate, as

the case may be.


17/85


(17.08.15)

9

Computation of Indirect Shareholding - For the purposes of this Clause

2.1.12, indirect shareholding held through one or more intermediate persons shall be computed as follows:

(aa) where any intermediary (for example ‘entity B’) is controlled by a

person (for example ‘entity A’) through management control or otherwise,

the entire shareholding held by such controlled intermediary, i.e. ‘entity B’in any other person for example ‘entity C’ shall be taken into account forcomputing the shareholding of such controlling person i.e. ‘entity A’ in

‘entity C’; and

(bb) where a person i.e. ‘entity A’ does not exercise control over anintermediary i.e. ‘entity B’, which has shareholding in another entity i.e.

‘entity C’ , the computation of indirect shareholding of such person in the

Subject Person shall be undertaken on a proportionate basis; provided,however, that no such shareholding shall be reckoned under this sub-

clause (bb) if the shareholding of such person in the intermediary is less

than 26% of the subscribed and paid up equity shareholding of suchintermediary; or

(ii) a constituent of such Bidder is also a constituent of another Bidder; or

(iii) such Bidder, its Member or any Associate thereof receives or has received

any direct or indirect subsidy,grant, concessional loan or subordinated debt

from any other Bidder, its Member or Associate, or has provided any suchsubsidy, grant, concessional loan or subordinated debt to any other Bidder,

its Member or any Associate thereof; or

(iv) such Bidder has the same legal representative for purposes of this Bid asany other Bidder; or

(v) such Bidder, or any Associate thereof, has a relationship with another

Bidder, or any Associate thereof, directly or through common third party/

parties, that puts either or both of them in a position to have access to each

others’ information about, or to influence the Bid of either or each other;or

(vi) such Bidder or any Associate thereof has participated as a consultant to theProcurers in the preparation of any documents, design or technical

specifications of the Project.

Explanation:

In case a Bidder is a Consortium, then the term Bidder as used in this Clause2.1.12, shall include each Member of such Consortium.


18/85


(17.08.15)

10

For purposes of this RFP, Associate means, in relation to the Bidder/ Consortium

Member, a person who controls, is controlled by, or is under the common controlwith such Bidder/ Consortium Member (the “Associate”). The expression

“control” means, with respect to a person which is a company or corporation, the

ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting

shares of such person, and with respect to a person which is not a company orcorporation, the power to direct the management and policies of such person byoperation of law.

2.1.13 A Bidder shall be liable for disqualification and forfeiture of Bid Security if any

legal, financial or technical adviser of the Procurers in relation to the Project isengaged by the Bidder, its Members or any Associate thereof, as the case may be,

in any manner for matters related to or incidental to such Project during the

Bidding Process or subsequent to the (i) issue of the LOA or (ii) execution of thePPA. In the event any such adviser is engaged by the Successful Bidder or Seller,

as the case may be, after issue of the LOA or execution of the PPA for matters

related or incidental to the Project, then notwithstanding anything to the contrarycontained herein or in the LOA or the PPA and without prejudice to any other

right or remedy of the Procurers, including the forfeiture and appropriation of the

Bid Security or Performance Guarantee, as the case may be, which the Procurersmay have thereunder or otherwise, the LOA or the PPA, as the case may be, shall

be liable to be terminated without the Procurers being liable in any manner

whatsoever to the Successful Bidder or Seller for the same.For the avoidance of

doubt, this disqualification shall not apply in cases as provided in the RFQ.

2.1.14 This RFP is not transferable.

2.1.15 The award of the Project pursuant to this RFP shall be subject to the terms ofBidding Documents.

2.1.16 The Bidder, its Members or Associate (or any constituent thereof) or any Group

Company of all or any of the aboveshall not have 3 (three) or more Ultra Mega

Power Projects, which have not achieved COD of the power plant on the

Application Due Date.

As used in this definition, the expression “Group Company” of a company means

(i) a company which, directly or indirectly, holds 10% (ten percent) or more of theshare capital of the company or

(ii) a company in which the company, directly or indirectly, holds 10% (ten percent) or more of the share capital of such company or(iii) a company in which the company, directly or indirectly, has the power to

direct or cause to be directed the management and policies of such company

whether through the ownership of securities or agreement or any otherarrangement or otherwise or


19/85


(17.08.15)

11

(iv) a company which, directly or indirectly, has the power to direct or cause to be

directed the management and policies of the Company whether through theownership of securities or agreement or any other arrangement or otherwise or

(v) a company which is under common control with the company, and

notwithstanding anything else contained in this RFP, control for the purposes of

this clause 2.1.16 means ownership by one company of at least 10% (ten percent)of the share capital of the other company or power to direct or cause to be directedthe management and policies of such company whether through the ownership of

securities or agreement or any other arrangement or otherwise.

Provided that a financial institution, scheduled bank, foreign institutional investor,non-banking financial company, and any mutual fund shall not be deemed to be

Group Company, and its shareholding and the power to direct or cause to be

directed the management and policies of a company shall not be considered forthe purposes of this definition unless it is the Bidding Company or a Member of

the Bidding Consortium.

Further, as used in this definition, the expression “UMPP” shall mean an ultra

mega power project based on super critical coal thermal technology, with installed

capacity of 3960 MW or above or such other capacity as may be stipulated by theCentral Government, from which power procurement has been tied through tariff

based competitive bidding initiated through a Central Government initiative.

2.1.17 Only Bidders who agree and undertake to procure the boilers, turbines, andgenerators of their Projects from manufacturing facilities situated in India and

owned and operated in India by an Indian company, a foreign company or a joint

venture between an Indian and foreign company shall be eligible hereunder.

2.2.18 The Bidder who is the Successful Bidder shall ensure that the Associate whose

credentials the Successful Bidder has relied upon during the bidding process shallcontinue to remain an Associate till the actual COD of the Power Station.

2.2 Change in composition of the Consortium

2.2.1 Where the Bidder is a Consortium, change in composition of the Consortium may

be permitted by the Procurers during the Bid Stage, only where:

(a) the Lead Member continues to be the Lead Member of the Consortium;

(b) the substitute is at least equal, in terms of Technical Capacity or FinancialCapacity, to the Consortium Member who is sought to be substituted andthe modified Consortium shall continue to meet the qualification criteria

for Bidders; and(c) the new Member(s) expressly adopt(s) the Application already made on

behalf of the Consortium as if it were a party to it originally, and is not an

Applicant/Member/ Associate of any other Consortium bidding for thisProject.


20/85


(17.08.15)

12

The option of change in composition of the Consortium which is available underClause 2.2.1 may be exercised by a Bidder who is qualified either as a Consortium

or as a single entity. In the case of a single entity Bidder adding a Consortium

Member at the Bid Stage, the single entity Bidder shall be the Lead Member of

the Consortium. Provided, however, that no member of such Consortium shall bea Bidder or the member of a Consortium which has been qualified.

2.2.2 Approval for change in the composition of a Consortium shall be at the sole

discretion of the Procurers and must be approved by the Procurers in writing. The

Bidder must submit its application for change in composition of the Consortiumno later than 15 (fifteen) days prior to the Bid Due Date.

2.2.3 The modified/ reconstituted Consortium shall submit a revised Jt. BiddingAgreement and a Power of Attorney, substantially in the form at Appendix-IV,

prior to the Bid Due Date.

2.3 Change in Ownership

2.3.1 The Bidder shall ensure that, if it is the Successful Bidder, its Equity holding inthe Seller shall not decline below (a) 51% (fifty one per cent) during the

Construction Period, (b) 33% (thirty three per cent) during a period of 3 (three)

years following COD of the Power Station and (c) 26% (twenty six per cent)

thereof, or such lower proportion as may be permitted by the Lead Procurerduring a period of 10 (ten) years following the COD of the Power Station.

Further, The Bidder shall also ensure that till end of the Construction Period there

shall not be any change in control, directly or indirectly of the Board of Directors

of the Seller by any person either by himself or together with any person or persons acting in concert with him, except with the prior written approval of the

Procurers.

2.3.2 In case of a Consortium, by submitting the Bid, the Bidder acknowledges that itwas qualified on the basis of Technical Capacity and Financial Capacity of those

of its Consortium Members who shall, each hold at least 26% (twenty six percent) Equity in the Seller until the COD of the Power Station specified in the PPA

and shall further commit that the combined Equity holding of all the Member(s)

whose Technical Capacity and Financial Capacity has been evaluated for the purposes of this RFQ shall be at least (a) 51% till the COD of the Power Station

specified in the PPA (b) 33% (thirty percent) till 3 (three) years following theCOD of the Power Station specified in the PPA and (c) 26% (twenty six percent)or such lower proportion as may be permitted by the Procurers during a period of

10 (ten) years of the COD of the Power Station specified in the PPA; The Bidder

further acknowledges and agrees that the aforesaid obligation shall be theminimum, and shall be in addition to such other obligations as may be contained

in the PPA, and a breach hereof shall, notwithstanding anything to the contrary


21/85


(17.08.15)

13

contained in the PPA, be deemed to be a breach of the PPA and dealt with as such

thereunder.

2.3.3 The Bidder shall ensure that, if it is the Successful Bidder, the SuccessfulBidder/Consortium Members shall continue to hold 100% Equity in the Seller

uptil the satisfaction of the Conditions Subsequent by both the Seller and theProcurers in terms of the PPA.

2.3.4 By submitting the Bid, the Bidder shall also be deemed to have acknowledged andagreed that in the event of a change in control of an Associate whose Technical

Capacity and/ or Financial Capacity was taken into consideration for the purposesof qualification under and in accordance with the RFQ, the Bidder shall be

deemed to have knowledge of the same and shall be required to inform the

Procurers forthwith along with all relevant particulars about the same and theProcurers may, in its sole discretion, disqualify the Bidder or withdraw the LOA

from the Successful Bidder, as the case may be. In the event such change in

control occurs after Effective Date but prior to the COD of the Power Station, itwould, notwithstanding anything to the contrary contained in the PPA, be deemed

to be a breach of the PPA, and the same shall be liable to be terminated without

the Procurers being liable in any manner whatsoever to the SuccessfulBidder/Seller. In such an event, notwithstanding anything to the contrary

contained in the PPA, the Procurers shall be entitled to forfeit and appropriate the

Bid Security or Performance Guarantee, as the case may be, as Damages, without

prejudice to any other right or remedy that may be available to the Procurersunder the Bidding Documents and/ or the PPA or otherwise.

2.4 Cost of Bidding

The Bidders shall be responsible for all of the costs associated with the

preparation of their Bids and their participation in the Bidding Process. TheProcurers will not be responsible or in any way liable for such costs, regardless of

the conduct or outcome of the Bidding Process.

2.5 Visit to the Power Station Land and the Captive Coal Block Land and

verification of information

2.5.1 Bidders are encouraged to submit their respective Bids after visiting thePowerStation Land and the Captive Coal Block Land and ascertaining for themselves

the site conditions, traffic, location, surroundings, climate, availability of power,water and other utilities for construction, access to site, handling and storage ofmaterials, weather data, applicable laws and regulations, and any other matter

considered relevant by them.

2.5.2 It shall be deemed that by submitting a Bid, the Bidder has:

(a) made a complete and careful examination of the Bidding Documents;


22/85


(17.08.15)

14

(b) received all relevant information requested from the Procurers;

(c) accepted the risk of inadequacy, error or mistake in the information provided in the Bidding Documents or furnished by or on behalf of the

Procurers relating to any of the matters referred to in Clause 2.5.1 above;

(d) satisfied itself about all matters, things and information including matters

referred to in Clause 2.5.1 hereinabove necessary and required forsubmitting an informed Bid, execution of the Project in accordance withthe Bidding Documents and performance of all of its obligations

thereunder;

(e) acknowledged and agreed that inadequacy, lack of completeness or

incorrectness of information provided in the Bidding Documents orignorance of any of the matters referred to in Clause 2.5.1 hereinabove

shall not be a basis for any claim for compensation, damages, extension of

time for performance of its obligations, loss of profits etc. from theProcurers, or a ground for termination of the PPA by the Bidder/Seller;

(f) acknowledged that it does not have a Conflict of Interest; and

(g) agreed to be bound by the undertakings provided by it under and in termshereof.

2.5.3 The Procurers shall not be liable for any omission, mistake or error in respect ofany of the above or on account of any matter or thing arising out of or concerning

or relating to RFP, RFQ, the Bidding Documents or the Bidding Process,

including any error or mistake therein or in any information or data given by the

Procurers.

2.6 Request for Information

2.6.1 The Bidder shall, as and when required by the Procurers, make available all suchinformation, evidence and documents as may be necessary for evaluation..

2.6.2 The Procurers reserves the right to reject any Bid and appropriate the Bid Security

if:

(a) at any time, a material misrepresentation is made or uncovered, or(b) the Bidder does not provide, within the time specified by the Procurers, the

supplemental information sought by the Procurers for evaluation of the Bid.

Such misrepresentation/ improper response shall lead to the disqualification of the

Bidder. If the Bidder is a Consortium, then the entire Consortium and eachMember may be disqualified / rejected. If such disqualification / rejection occurs

after the Bids have been opened and the Lowest Bidder gets disqualified /

rejected, then the Procurers reserves the right to:

(i) invite the remaining Bidders to submit their Bids in accordance withClauses 3.6.3and 3.6.4; or


23/85


(17.08.15)

15

(ii) take any such measure as may be deemed fit in the sole discretion of

the Procurers, including annulment of the Bidding Process.

2.6.3 In case it is found during the evaluation or at any time before the signing of the

Share Purchase Agreement, that one or more of the qualification conditions have

not been met by the Bidder, or the Bidder has made material misrepresentation orhas given any materially incorrect or false information, the Bidder shall bedisqualified forthwith whether or not the LOA has been issued, by a

communication in writing by the Procurers to the Bidder, without the Procurers

being liable in any manner whatsoever to the Bidder and without prejudice to any

other right or remedy which the Procurers may have under this RFQ, the BiddingDocuments, or under applicable law.

In the event it is found after the execution of the Share Purchase Agreementand/or the execution of the PPA, that one or more of the qualification conditions

have not been met by the Bidder or that the Bidder has made material

misrepresentation or has given any materially incorrect or false information, theconsequences shall be as laid down in the Share Purchase Agreement and/or the

PPA.

B. DOCUMENTS

2.7 Contents of the RFP

2.7.1 This RFP comprises the Disclaimer set forth hereinabove, the contents as listed

below, and will additionally include any Addenda issued in accordance with

Clause 2.9.

Invitation for Bids

Section 1. Introduction

Section 2. Instructions to Bidders

Section 3. Evaluation of Bids

Section 4. Fraud and Corrupt PracticesSection 5. Pre-Bid Conference

Section 6. Miscellaneous

Appendices

I. Letter comprising the BidII. Bank Guarantee for Bid SecurityIII. Power of Attorney for signing of BidIV. Power of Attorney for Lead Member of ConsortiumV. Format for the BidVI. Performance Guarantee FormatVII. Draft Share Purchase Agreement


24/85


(17.08.15)

16

VIII. Draft Default Escrow AgreementIX. Draft Agreement to Hypothecate cum Deed of HypothecationX. Draft Land Lease Agreement – IXI. Draft Allocated Coal Block Land Lease AgreementXII. Methodology of computation of Levelised Tariff and Levelised Fixed

ChargeXIII. Draft Power Purchase Agreement

2.7.2 The Feasibility Report and other study reports provided by the Procurers as part of

the Bidding Documents shall be deemed to be part of this RFP.

2.8 Clarifications

2.8.1 Bidders requiring any clarification on the RFP may notify the Procurers in writingor by fax and e-mail attaching the queries in microsoft word format in accordance

with Clause 1.2.9. They should send in their queries on or before the datementioned in the Schedule of Bidding Process specified in Clause 1.3. The

Procurers shall endeavour to respond to the queries within the period specified

therein, but no later than 15 (fifteen) days prior to the Bid Due Date. The

responses will be sent by fax or e-mail. The Procurers will forward all the queriesand its responses thereto, to all Bidders without identifying the source of queries.

2.8.2 The Procurers shall endeavour to respond to the questions raised or clarificationssought by the Bidders. However, the Procurers reserves the right not to respond to

any question or provide any clarification, in its sole discretion, and nothing in this

Clause shall be taken or read as compelling or requiring the Procurers to respond

to any question or to provide any clarification.

2.8.3 The Procurers may also on its own motion, if deemed necessary, issueinterpretations and clarifications to all Bidders. All clarifications and

interpretations issued by the Procurers shall be deemed to be part of the Bidding

Documents. Verbal clarifications and information given by Procurers or its

employees or representatives shall not in any way or manner be binding on theProcurers.

2.9 Amendment of RFP

2.9.1 At any time prior to the Bid Due Date, the Procurers may, for any reason, whetherat its own initiative or in response to clarifications requested by a Bidder, modifythe RFP by the issuance of Addenda.

2.9.2 Any Addendum issued hereunder will be in writing and shall be sent to all theBidders.


25/85


(17.08.15)

17

2.9.3 In order to afford the Bidders a reasonable time for taking an Addendum intoaccount, or for any other reason, the Procurers may, in its sole discretion, extend

the Bid Due Date.

C. PREPARATION AND SUBMISSION OF BIDS

2.10 Format and Signing of Bid

2.10.1 The Bidder shall provide all the information sought under this RFP. The Procurerswill evaluate only those Bids that are received in the required formats and

complete in all respects.

2.10.2 The Bid and its copy shall be typed or written in indelible ink and signed by theauthorised signatory of the Bidder who shall also initial each page, in blue ink.In

case of printed and published documents, only the cover shall be initialled. All the

alterations, omissions, additions or any other amendments made to the Bid shall

be initialled by the person(s) signing the Bid.

2.10.3 The documents accompanying the Bid (“Non-Financial Bid”) shall be placed ina separate envelope (“Envelope-I”) and marked as “Non-Financial Bid”. The

documents shall include:

(a) Letter comprising the Bid at Appendix – I

(b) Bid Security in the format at Appendix–II;

(c) Power of Attorney for signing of Bid in the format at Appendix–III;

(d) If applicable, the Power of Attorney for Lead Member of Consortium inthe format at Appendix – IV; and

2.10.4 The Bid shall be placed in a separate envelope (“Envelope-II”) and marked as“Financial Bid”.

2.10.5 A true copy of the Non-Financial Bid, shall be bound together in hard cover. The pages in the hard cover shall be numbered serially and every page shall be

initialled in blue ink by the authorised signatory of the Bidder. This copy of the

documents shall be placed in a separate envelope and marked “Copy of

Documents”. This Envelope shall not contain the copy of the Bid.

2.10.6 The two envelopes (along with the envelope marked “Copy of Documents”) shall

be placed in an outer envelope, which shall be sealed. Each of the three envelopesshall clearly bear the following identification:

“Bid for the *** UMPP”

While extending the Bid Due Date on account of an addendum, the Procurers shall have due regard for

the time required by Bidders to address the amendments specified therein. In the case of amendments, at

least 15 (fifteen) days shall be provided between the date of amendment and the Bid Due Date.


26/85


(17.08.15)

18

and shall clearly indicate the name and address of the Bidder. In addition, the Bid

Due Date should be indicated on the right hand top corner of each of theenvelopes.

2.10.7 Each of the envelopes shall be addressed to:

ATTN. OF: Mr. ***

DESIGNATION: ***

ADDRESS: ***

FAX NO: ***

E-MAIL ADDRESS: ***

2.10.8 If the envelopes are not sealed and marked as instructed above, the Procurersassumes no responsibility for the misplacement or premature opening of the

contents of the Bid submitted and consequent losses, if any, suffered by the

Bidder.

2.10.9 Bids submitted by fax, telex, or e-mail shall not be entertained and shall be

rejected.

2.11 Bid Due Date

2.11.1 Bids should be submitted latest by[***]15

hours IST on the Bid Due Date at theaddress provided in Clause 2.10.7 in the manner and form as detailed in this RFP.

A receipt thereof should be obtained from the person specified at Clause 2.10.7.

2.11.2 The Procurers may, in its sole discretion, extend the Bid Due Date by issuing anAddendum in accordance with Clause 2.9 uniformly for all Bidders.

2.12 Late Bids

Bids received by the Procurers after the specified time on the Bid Due Date shall

not be eligible for consideration and shall be summarily rejected.

2.13 Contents of the Bid

2.13.1 The Bid shall be furnished in the format at Appendix–V and shall consist of the

Tariff to be quoted by the Bidder. The Bidder shall specify in Rupees/kWh, up tothree decimals, the Tariff to undertake the Project in accordance with this RFPand the provisions of the PPA.

2.13.2 Generally, the Project will be awarded to the Lowest Bidder.

15 Insert Time


27/85


(17.08.15)

19

2.13.3 The opening of Bids and acceptance thereof shall be substantially in accordance

with this RFP.

2.13.4 The PPA shall be deemed to be a part of the Bid.

2.14 Modifications/ Substitution/ Withdrawal of Bids

2.14.1 The Bidder may modify, substitute or withdraw its Bid after submission, provided

that written notice of the modification, substitution or withdrawal is received by

the Procurers prior to the Bid Due Date. No Bid shall be modified, substituted or

withdrawn by the Bidder on or after the Bid Due Date.

2.14.2 The modification, substitution or withdrawal notice shall be prepared, sealed,

marked, and delivered in accordance with Clause 2.10, with the envelopes beingadditionally marked “MODIFICATION”, “SUBSTITUTION” or

“WITHDRAWAL”, as appropriate.

2.14.3 Any alteration/ modification in the Bid or additional information supplied

subsequent to the Bid Due Date, unless the same has been expressly sought for by

the Procurers, shall be disregarded.

2.15 Rejection of Bids

2.15.1 Notwithstanding anything contained in this RFP, the Procurers reserves the rightto reject any Bid and to annul the Bidding Process and reject all Bids at any time

without any liability or any obligation for such acceptance, rejection or

annulment, and without assigning any reasons therefor. In the event that the

Procurers rejects or annuls all the Bids, it may, in its discretion, invite all eligibleBidders to submit fresh Bids hereunder.

2.15.2 The Procurers reserves the right not to proceed with the Bidding Process at any

time, without notice or liability, and to reject any Bid without assigning any

reasons.

2.16 Bids Validity

The Bids shall be valid for a period of not less than 120 (one hundred and twenty)days from the Bid Due Date. The Bid Validity may be extended by mutual

consent of the respective Bidders and the Procurers.

2.17 Confidentiality

Information relating to the examination, clarification, evaluation and

recommendation for the Bidders shall not be disclosed to any person who is not

officially concerned with the process or is not a retained professional advisoradvising the Procurers in relation to, or matters arising out of, or concerning the


28/85


(17.08.15)

20

Bidding Process. The Procurers will treat all information, submitted as part of the

Bid, in confidence and will require all those who have access to such material totreat the same in confidence. The Procurers may not divulge any such information

unless it is directed to do so by any statutory entity that has the power under law

to require its disclosure or is to enforce or assert any right or privilege of the

statutory entity and/ or the Procurers or as may be required by law or inconnection with any legal process.

2.18 Correspondence with the Bidder

Save and except as provided in this RFP, the Procurers shall not entertain anycorrespondence with any Bidder in relation to acceptance or rejection of any Bid.

D. BID SECURITY

2.19 Bid Security

2.19.1 The Bidder shall furnish as part of its Bid, a Bid Security referred to in Clause

1.2.4hereinabove in the form of a bank guarantee issued by a nationalised bank, or

a Scheduled Bank in India having a net worth of at least Rs. 1,000 crore (Rs. onethousand crore), in favour of the Procurers in the format at Appendix–II (the

“Bank Guarantee”) and having a validity period of not less than 180 (one

hundred eighty) days from the Bid Due Date, inclusive of a claim period of 60

(sixty) days, and may be extended as may be mutually agreed between theProcurers and the Bidder from time to time. In case the Bank Guarantee is issued

by a foreign bank outside India, confirmation of the same by any nationalised

bank in India is required. For the avoidance of doubt, Scheduled Bank shall mean

a bank as defined under Section 2(e) of the Reserve Bank of India Act, 1934.

2.19.2 Any Bid not accompanied by the Bid Security shall be summarily rejected by theProcurers as non-responsive.

2.19.3 Save and except as provided in Clauses 1.2.4, the Bid Security of unsuccessful

Bidders will be returned by the Procurers, without any interest, as promptly as possible on acceptance of the Bid of the Successful Bidder or when the Bidding

process is cancelled by the Procurers, and in any case within 60 (sixty) days from

the Bid Due Date.

2.19.4 The Successful Bidder’s Bid Security will be retained, without any interest, till ithas provided a Performance Guarantee and executed the PPA.

2.19.5 The Procurers shall be entitled to forfeit and appropriate the Bid Security as

Damages inter alia in any of the events specified in Clause 2.19.6 herein below.The Bidder, by submitting its Bid pursuant to this RFP, shall be deemed to have

acknowledged and confirmed that the Procurers will suffer loss and damage on

account of withdrawal of its Bid or for any other default by the Bidder during the


29/85


(17.08.15)

21

period of Bid validity as specified in this RFP. No relaxation of any kind on Bid

Security shall be given to any Bidder.

2.19.6 The Bid Security shall be forfeited as Damages without prejudice to any other

right or remedy that may be available to the Procurers under the Bidding

Documents and/ or under the PPA, or otherwise, if

(a) a Bidder submits a non-responsive Bid;

(b) a Bidder engages in a corrupt practice, fraudulent practice, coercive

practice, undesirable practice or restrictive practice as specified in Clause

4 of this RFP;(c) a Bidder withdraws its Bid during the period of Bid validity as specified in

this RFP and as extended by mutual consent of the respective Bidder(s)

and the Procurers;(d) the Successful Bidder fails within the specified time limit -

(i) to sign and return the duplicate copy of LOA;

(ii) to sign the SPA and acquire the shares of the Seller; or(iii) to sign the Default Escrow Agreement, Agreement to Hypothecate

cum Deed of Hypothecation, if applicable; or

(iii) to sign the PPA; or(iii) to furnish the Performance Guarantee;

(e) A material misrepresentation is made ore convered;

2.20 Performance Guarantee

2.20.1 The Successful Bidder shall, furnish a Performance Guarantee within the time line

mentioned under Clause 1.3, in the form of a bank guarantee issued by a

nationalised bank, or a Scheduled Bank in India having a net worth of at least Rs.1,000 crore (Rs. one thousand crore), in favour of the Procurers in the format at

Appendix–VI (the “Performance Guarantee”) and having a validity period as perthe PPA. In case the Performance Guarantee is issued by a foreign bank outside

India, confirmation of the same by any nationalised bank in India is required. For

the avoidance of doubt, Scheduled Bank shall mean a bank as defined under

Section 2(e) of the Reserve Bank of India Act, 1934. The amount of thePerformance Guarantee shall be calculated as follows:

Rs. (***)16

x (l + 0.5n).

Where "n" is calculated as follows:(a) In case Successful Bidder is a Bidding Company,

"n" is number of other pre-commissioned UMPPs for which the LOA has been issued to the following:(i) a company (or its Parent/Affiliate/Ultimate Parent) and such company

being the Successful Bidder (or its Parent/Affiliate/ Ultimate Parent), or

(ii) a consortium of which the Successful Bidder (or its Parent/Affiliate/Ultimate Parent) was a member (or Parent/Affiliate/Ultimate Parent of

such member) having 26% or more equity share of such consortium,

16 Insert an amount equivalent to 2% (two percent) of the estimated Project Cost


30/85


(17.08.15)

22

(b) In case Successful Bidder is a Bidding Consortium,

"n" is number(s) of other pre-commissioned UMPPs for which the LOAhas been issued to the following:

(i) a consortium, having a member (or Parent/Affiliate/Ultimate Parent ofsuch member) with 26% or more equity share of such consortium, who is

also a Member (or its Parent/Affiliate/Ultimate Parent) having 26% ormore equity share of the Successful Bidder, or

(ii) a company (or its Parent/Affiliate/Ultimate Parent) and such company

being a Member (or their Parent/Affiliate/Ultimate Parent) having 26% or

more equity share of the Successful Bidder.

2.20.2 The Performance Guarantee shall be provided separately to each of the Procurers

for the amount calculated pro-rata in the ratio of the Allocated Contracted

Capacity and rounded off to the nearest Rs. 1,00,000 (Rupees One Lakh) with the principle that amounts below Rs. 50,000 (Rupees Fifty Thousand) shall be

rounded down and amounts of Rs. 50,000 (Rupees Fifty Thousand) and above

shall be rounded up

E. BID PARAMETERS

2.21 Bid Parameters

2.21.1 The Bid shall consist of the Tariff offered by the Bidder for production and supply

of electricity to the Procurers in accordance with the provisions of the PPA. TheTariff comprising the Bid shall be offered in accordance with the provisions of

this Clause 2.21.

2.21.2 The Tariff shall be as specified in the PPA and shall be payable in Indian Rupeesonly.The Bid for the Project shall be the Tariff consisting the Fixed Charge, for

each Contract Year commencing from the COD of the first Unit of the PowerStation until 25 (twenty five) years from COD of the Power Station, and the

Variable Charge, as per the format attached in Appendix-V. The quoted Fixed

Charge for the first Contract Year shall be paid from the COD of the first Unit till

the COD of the Power Station. For the purpose of the Tariff payment, the VariableCharge shall be escalated from the Bid Due Date as per the provisions of the PPA.

2.21.3 This Quoted Tariff of the Selected Bidder shall be inserted in Schedule 17 ofPPA.

2.21.4 The Levelised Fixed Charge shall not be more than 90% of the Levelised Tariffand the Levelised Variable Charge shall not be more than 30% of the Levelised

Tariff. The Levelised Fixed Charge & Levelised Variable Charge shall be

calculated in accordance with Clause 3.4.3. The ratio of minimum and maximumFixed Charge during the term of the PPA shall not be less than 0.7 (zero point

seven).


31/85


(17.08.15)

23

3. EVALUATION OF BIDS

3.1 Evaluation of Bids

The Bid evaluation process comprises of the following three steps:

1. Step I – Opening and Responsiveness check of Non-Financial Bids(Envelope I)

2. Step II –Opening and evaluation of Bids (Envelope II)3. Step III– Successful Bidder selection

3.2 Opening and Evaluation of Non-Financial Bids

3.2.1 The Procurers shall open the Non-Financial Bids at ***17

hours on the Bid DueDate, at the place specified in Clause 2.10.7 and in the presence of the Bidders

who wish to be present.Provided however, in case there is only one Bidder, then

the Bid of such Bidder may be opened if Procurers who procure at least 75% ofthe total allocated capacity give their consent to the opening of the Bid.

3.2.2 The Procurers will subsequently examine the Non-Financial Bids in accordance

with the provisions set out in this Section 3.

3.2.3 The Procurers may, at their sole discretion, ask for additional information and/orseek clarifications from a Bidder after the Bid Due Date, inter alia, for the

purposes of removal of inconsistencies or infirmities in its Bid.

3.3 Step I - Responsiveness check of Non-Financial Bids

The Non-Financial Bids submitted by Bidders shall be initially scrutinized to

establish “Responsiveness”. Subject to Clause 3.2,3, any of the followingconditions may cause the Bid to be considered “Non-responsive”, at the sole

discretion of the Procurers in the event:

(a) it is not received as per the format at Appendix–I;(b) it is not received by the Bid Due Date including any extension thereof

pursuant to Clause 2.11.2;

(c) it is not signed, sealed, bound together in hard cover and marked asstipulated in Clause 2.10;

(d) it is not accompanied by the Bid Security as specified in Clause 1.2.4;

(e) it is not accompanied by the Power(s) of Attorney as specified in Clauses2.1.7 and 2.1.8, as the case may be;

(f) it does not contain the copies of the Non-Financial Bid as per Clause

2.10.5;

(g) it contains any condition or qualification; and(h) it is non-responsive in terms hereof.

17 Insert time


32/85


(17.08.15)

24

The Procurers reserves the right to reject any Bid which is non-responsive and no

request for alteration, modification, substitution or withdrawal shall be entertained by the Procurers in respect of such Bid. The Bids of the Bidders whose Non-

Financial Bid is non-responsive shall be returned unopened.

3.4 Step II - Evaluation of Bids

3.4.1 The Bid(Envelope II) which have been accepted for opening by the Procurers,

based on the responsiveness check as specified above in Clause 3.3, shall be

opened in presence of the representatives of the Bidders, who wish to be present,

as per the timelines indicated in Clause 1.3. The financial evaluation of the Bidswill be carried out based on information furnished in Envelope II. Provided

however, in case Envelope II of only one Bidder remains after the responsiveness

check (Step I) under Clause 3.3 then the Bid of such Bidder may be opened ifProcurers who procure at least 75% of the total allocated capacity give their

consent to the opening of the Bid.

3.4.2 For the purposes of comparison of Financial Bids, the Quoted Variable Charge of

each Bidder shall be uniformly escalated from the Bid Due Date by applying

escalation rate notified by the Commission applicable on the day which is 7(seven) days prior to the Bid Due Date and the escalated Quoted Tariff shall be

computed by adding the quoted Fixed Charge and escalated Variable charge for

each year. Further, the said escalation factors shall be applied as at the mid-point

of each Contract Year. For the actual Tariff payment, however, such factors shall be applied as per the provisions of the PPA.

3.4.3 Computing levelised tariffs and Levelised Fixed Charge

(i) The escalated Quoted Tariffs (Rs/kWh) of each of the Bidders for eachContract Year for the term of PPA, calculated as per provisions of Clause3.4.2, shall then be discounted upto the assumed commissioning date of the

entire Contracted Capacity mentioned in Clause 3.4.3(ii), by applying the

discount factors (based on the discount rate notified by the Commission

applicable on the day which is 7 (seven) days prior to the Bid Due Date)and such aggregate discounted value for the Term of the PPA shall be

divided by the sum of such discount factors so as to calculate the Levelised

Tariff of each Bidder.

(ii) The Levelised Tariff and Levelised Fixed Charge shall be calculated byassuming uniformly for all Bidders that entire Contracted Capacity has been Commissioned on the date which is [Insert date as COD of the first

Unit of the Power Station].

(iii) The methodology of computation of Levelised Tariff and Levelised FixedCharge is explained in the example provided in Appendix XII.


33/85


(17.08.15)

25

3.5 Step III– Successful Bidder Selection

3.5.1 The Levelised Tariff calculated as per Clause 3.4.3 shall be ranked from the

lowest to the highest and the Bidder with lowest Levelised Tariff shall be declaredas the Successful Bidder and the Letter of Award shall be issued to suchSuccessful Bidder.

3.5.2 The Procurers, in their own discretion, have the right to reject any or all Bids if

the Quoted Tariffs are not aligned to the prevailing market prices.

3.6 Selection of Bidder

3.6.1 Subject to the provisions of Clause 2.15.1, the Bidder whose Non-Financial Bid is

adjudged as responsive in terms of Clause 3.3 and with the lowest Levelised

Tariff in conformity with the provisions of Clause 3.4.3shall be declared as thesuccessful Bidder (“Successful Bidder”). In the event that the Procurers rejects orannuls all the Bids, it may, in its discretion, invite all eligible Bidders to submit

fresh Bids hereunder.

3.6.2 In the event that two or more Bidders have the same Levelised Tariff (the "Tie

Bidders"), the Procurers shall identify the Successful Bidder by draw of lots,

which shall be conducted, with prior notice, in the presence of the Tie Bidderswho wish to be present.

3.6.3 In the event that the Lowest Bidder withdraws or is not selected for any reason in

the first instance (the “first round of bidding”), the Procurers may invite all theremaining Bidders to revalidate or extend their respective Bid Security, as

necessary, and match the Levelised Tariff(up to three decimals) of the aforesaid

Lowest Bidder (the “second round of bidding”). If in the second round of bidding, only one Bidder matches the Levelised TariffLowest Bidder, it shall be

the Successful Bidder. If two or more Bidders match the said Levelised Tariff of

the Lowest Bidder in the second round of bidding, then the Bidder whoseLevelised Tariff was lower as compared to other Bidder(s) in the first round of

bidding shall be the Successful Bidder. For example, if the third and fifth lowest

Bidders in the first round of bidding offer to match the said Levelised Tariff of the

Lowest Bidder in the second round of bidding, the said third lowest Bidder shall be the Successful Bidder.

3.6.4 In the event that no Bidder offers to match the Levelised Tariff of the LowestBidder in the second round of bidding as specified in Clause 3.6.3, the Procurers

may, in its discretion, invite fresh Bids (the “third round of bidding”) from allBidders except the Lowest Bidder of the first round of bidding, or annul the

Bidding Process, as the case may be. In case the Bidders are invited in the third

round of bidding to revalidate or extend their Bid Security, as necessary, and offer


34/85


(17.08.15)

26

fresh Bids, they shall be eligible for submission of fresh Bids provided, however,

that in such third round of bidding only such Bids shall be eligible forconsideration which are lower than the Levelised Tariff of the second lowest

Bidder in the first round of bidding.

3.6.5 After selection, a Letter of Award (the “LOA”) shall be issued, in duplicate, bythe Procurers to the Successful Bidder and the Successful Bidder shall, within 7(seven) days of the receipt of the LOA, sign and return the duplicate copy of the

LOA in acknowledgement thereof. In the event the duplicate copy of the LOA

duly signed by the Successful Bidder is not received by the stipulated date, the

Procurers may, unless it consents to extension of time for submission thereof,appropriate the Bid Security of such Bidder as Damages on account of failure of

the Successful Bidder to acknowledge the LOA, and the next eligible Bidder may

be considered.

3.6.6 After acknowledgement of the LOA as aforesaid by the Successful Bidder, it shall

acquire the 100% Equity of the SPV/Seller, cause the SPV/Seller toexecute theagreements mentioned under Clause 1.3, within the period prescribed therein. The

Successful Bidder shall not be entitled to seek any deviation, modification or

amendment in the PPA.

3.7 Contacts during Bid Evaluation

Bids shall be deemed to be under consideration immediately after they are openedand until such time the Procurers make official intimation of award/ rejection to

the Bidders. While the Bids are under consideration, Bidders and/ or their

representatives or other interested parties are advised to refrain, save and except as

required under the Bidding Documents, from contacting by any means, theProcurers and/ or their employees/ representatives on matters related to the Bids

under consideration.


35/85


(17.08.15)

27

4. FRAUD AND CORRUPT PRACTICES

4.1 The Bidders and their respective officers, employees, agents and advisers shall

observe the highest standard of ethics during the Bidding Process and subsequent

to the issue of the LOA and during the subsistence of the PPA.

4.2 If it is determined by the Procurers that the Bidder or the Seller, as the case may be, has directly or indirectly or through an agent, engaged or indulged in any

corrupt practice, fraudulent practice, Bidding Process or after the issuance of the

LOA or the execution of the PPA:

(i) the Procurers may reject a Bid, withdraw the LOA, or terminate the PPA,as the case may be, without being liable in any manner whatsoever to the

Bidder or Seller, as the case may be;(ii) the Procurers shall be entitled to forfeit and appropriate the Bid Security

or Performance Guarantee, as the case may be, as damages, without

prejudice to any other right or remedy that may be available to theProcurers under the Bidding Documents and/ or the PPA, or otherwise;

(iii) the Bidder or Seller, as the case may be, shall not be eligible to participate in any tender or RFP issued by the Procurers during a periodof 2 (two) years from the date such Bidder or Seller, as the case may be,

is found by the Procurers to have directly or indirectly or through an

agent, engaged or indulged in any corrupt practice, fraudulent practice,

coercive practice, undesirable practice or restrictive practices, as the casemay be.

4.3 For the purposes of this Clause 4, the following terms shall have the meaning

hereinafter respectively assigned to them:

(a) “corrupt practice” means(i) the offering, giving, receiving, or soliciting, directly or indirectly, of

anything of value to influence the actions of any person connected with

the Bidding Process; or

(ii) save and except as permitted under the Clause 2.1.13 of this RFP,

engaging in any manner whatsoever, whether during the Bidding Process

orafter the issue of the LOA or after the execution of the PPA, as the casemay be, any person in respect of any matter relatingto the Project or the

LOA or the PPA, who at any time has been or is a legal, financial or

technical adviser of the Procurersin relation to any matter concerning theProject;

For example, offering of employment to or employing or engaging in any manner whatsoever, directly or

indirectly, any official of the Procurers who is or has been associated in any manner, directly or indirectly,with the Bidding Process or the LOA or has dealt with matters concerning the PPA or arising therefrom,

before or after the execution thereof, at any time prior to the expiry of one year from the date such official

resigns or retires from or otherwise ceases to be in the service of the Procurers.


36/85


(17.08.15)

28

(b) “fraudulent practice” means a misrepresentation or omission of facts or

suppression of facts or disclosure of incomplete facts, in order to influencethe Bidding Process;

(c) “coercive practice” means impairing or harming, or threatening to impair

or harm, directly or indirectly, any person or property to influence any

person’s participation or action in the Bidding Process;(d) “undesirable practice” means (i) establishing contact with any person

connected with or employed or engaged by the Procurers with the

objective of canvassing, lobbying or in any manner influencing or

attempting to influence the Bidding Process; or (ii) having a Conflict of

Interest; and(e) “restrictive practice” means forming a cartel or arriving at any

understanding or arrangement among Bidders with the objective of

restricting or manipulating a full and fair competition in the BiddingProcess.


37/85


(17.08.15)

29

5.PRE-BID CONFERENCE

5.1 Pre-Bid conferences of the Bidders shall be convened at the designated date, time

and place. Only those persons who have purchased the RFP document shall be

allowed to participate in the Pre-Bid Conferences. A maximum of five

representatives of each Bidder shall be allowed to participate on production ofauthority letter from the Bidder.

5.2 During the course of Pre-Bid conference(s), the Bidders will be free to seek

clarifications and make suggestions for consideration of the Procurers. The

Procurers shall endeavour to provide clarifications and such further information asit may, in its sole discretion, consider appropriate for facilitating a fair, transparent

and competitive Bidding Process.


38/85


(17.08.15)

30

6. MISCELLANEOUS

6.1 The Bidding Process shall be governed by, and construed in accordance with, the

laws of India and the Courts at ***18

shall have exclusive jurisdiction over all

disputes arising under, pursuant to and/ or in connection with the Bidding Process.

6.2 The Procurers, in its sole discretion and without incurring any obligation orliability, reserves the right, at any time, to;

(a) suspend and/ or cancel the Bidding Process and/ or amend and/ or

supplement the Bidding Process or modify the dates or other terms andconditions relating thereto;

(b) consult with any Bidder in order to receive clarification or further

information;(c) retain any information and/ or evidence submitted to the Procurers by, on

behalf of, and/ or in relation to any Bidder; and/ or

(d) independently verify, disqualify, reject and/ or accept any and allsubmissions or other information and/ or evidence submitted by or on

behalf of any Bidder.

6.3 It shall be deemed that by submitting the Bid, the Bidder agrees and releases the

Procurers, its employees, agents and advisers, irrevocably, unconditionally, fully

and finally from any and all liability for claims, losses, damages, costs, expenses

or liabilities in any way related to or arising from the exercise of any rights and/or performance of any obligations hereunder, pursuant hereto and/ or in

connection with the Bidding Process and waives, to the fullest extent permitted by

applicable laws, any and all rights and/ or claims it may have in this respect,

whether actual or contingent, whether present or in future.

6.4 The Bidding Documents and RFQ are to be taken as mutually explanatory and,unless otherwise expressly provided elsewhere in this RFP, in the event of any

conflict between them the priority shall be in the following order:

(a) the Bidding Documents;(b) the RFQ.

i.e. the Bidding Documents at (a) above shall prevail over the RFQ at (b) above.

18 Insert name of the place


39/85


(17.08.15)

31

APPENDIX – I

Letter comprising the Bid

(Refer Clauses 2.1.5 and 2.13)

Dated:

[The ***,***********

***********] Sub: Bid for *** Project

Dear Sir,

With reference to your RFP document dated ***, I/we, having examined theBidding Documents and understood their contents, hereby submit my/our Bid for the

aforesaid Project. The Bid is unconditional and unqualified.

2. I/ We acknowledge that the Procurers will be relying on the information provided

in the Bid and the documents accompanying the Bid for selection of the

Successful Bidder for the aforesaid Project, and we certify that all information provided therein is true and correct; nothing has been omitted which renders such

information misleading; and all documents accompanying the Bid are true copies

of their respective originals.

3. This statement is made for the express purpose of our selection as Successful

Bidder for the development, construction, operation and maintenance of the

aforesaid Project and for sale of power to the Procurers.

4. I/ We shall make available to the Procurers any additional information it may find

necessary or require to supplement or authenticate the Bid.

5. I/ We acknowledge the right of the Procurers to reject our Bid without assigning

any reason or otherwise and hereby waive, to the fullest extent permitted byapplicable law, our right to challenge the same on any account whatsoever.

6. I/ We declare that:

(a) I/ We have examined and have no reservations to the Bidding Documents,

including any Addendum issued by the Procurers; and

(b) I/ We do not have any conflict of interest in accordance with Clauses2.1.12 and 2.1.13 of the RFP document; and

(c) I/We have not directly or indirectly or through an agent engaged orindulged in any corrupt practice, fraudulent practice, coercive practice,undesirable practice or restrictive practice, as defined in Clause 4 of the

RFP document, in respect of any tender or request for proposal issued by

or any agreement entered into with the Procurers or any other public sectorenterprise or any government, Central or State; and

(d) I/ We hereby certify that we have taken steps to ensure that in conformity

with the provisions of Section 4 of the RFP, no person acting for us or on