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CHAPTER I: INTRODUCTION
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Rule
Rule 1: Short title and commencement
Rule 2: Application
Rule 3: Definitions
Rule 4: Responsibility of Contracting Authority
Rule 5: Probity and transparency
Rule 6: Interpretation
Rule 7: Modifications and guidance materials
Rule 8: Rules not in derogation of other laws
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| Rule 1: Short title and commencement
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- These rules shall be called Public Private Partnership (Preparation, Procurement and Management) Rules 2011.
- Save as otherwise provided in these Rules, they shall come into force on the date of their publication in the Official Gazette.
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| Rule 2: Application
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- Subject to sub-Rules (2) and (3) below, these Rules shall apply to all projects proposed
to be implemented on a PPP basis except where Tender Proceedings have not
commenced by the relevant authority.
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These Rules shall apply to:
- to all Type I Projects
- to all Type II PPP Projects
- Nothing in these Rules shall apply to:
- the Ministry of Defence, Government of India,
- the Department of Atomic Energy, Government of India, and,
- the Department of Space, Department of Science of Technology, Government of India.
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| Rule 3: Definitions
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- Achievement and Exception Report means the report submitted to the Empowered Review Cell by the Contracting Authority in accordance with Rule 98:;
- Applicant means an entity which has submitted or is likely to submit a response to the EOI or RFQ, as the case may be;
- Application means the submission made in response to the RFQ;
- Appointed Date means the date on which the Concession Agreement comes into full force and effect in accordance with the terms outlined therein.
- Appropriate Government means the Central Government, State Government or local government as the case may be.
- Approving Authority means:
- for Type I PPP Projects, the forum for approval of PPP Projects as notified by the Ministry of Finance, Government of India;
- for Type II PPP Projects, the forum for approval notified by the respective State Governments/other government entities to take the investment decision in respect of the PPP Project;
- Best and Final Offer or BAFO means an offer made in accordance with Appendix A. 5;
- Bid means the submission made in response to the RFP;
- Bidder means an entity which has submitted or intends to submit a Bid in response to the RFP;
- Bid Security means a security furnished by the Bidder to the Contracting Authority to secure the performance of any obligation under the RFP and includes such arrangements as bank guarantees, surety bonds, stand-by letters of credit, cheques on which a bank is primarily liable, cash deposits, promissory notes and bills of exchange;
- Competitive Dialogue means competitive dialogue conducted in accordance with Rule 26:;
- Concessionaire means the entity to which a PPP Project is awarded in accordance with these Rules.
- Concession Agreement means the contract entered into between the Contracting Authority and Preferred Bidder for implementing a PPP Project;
- Conditions Precedent mean the obligations which the Contracting Authority or the Concessionaire may be required to fulfil prior to financial close of the PPP Project, unless waived in writing by the relevant party in accordance with the terms of the Concession Agreement;
- Consortium means a Respondent comprising of two or more private entities for the purpose of responding to a Tender Document. It is clarified that such consortium may include public sector entity/entities subject to the condition that such public sector entity/entities do not have a controlling stake in the consortium;
- Contingent Liability means a liability accruing to a Contracting Authority through the Concession Agreement or PPP Project on the occurrence or non-occurrence of an uncertain future event.
- Contracting Authority means the Appropriate Government, or an agency of the Appropriate Government, or a statutory authority or an entity under control of the Appropriate Government, or a Central Public Sector Undertaking, which is a signatory to the Concession Agreement.
- Contract Management means activities of the Contracting Authority relating to supervision of a PPP or Concession Agreement;
- Contract Management Plan means the contract management plan prepared in accordance with Rule 102:
- Contract Management Team or CMT means the contract management team appointed under Rule 96:;
- Database means the database maintained by the Contracting Authority in accordance with Rule 71:; 3
- DEA means the Department of Economic Affairs, Ministry of Finance, Government of India;
- DOE means the Department of Expenditure, Ministry of Finance, Government of India;
- Due Date means the last date for the submission of Responses to the Tender Documents.
- Empowered Review Cell means the empowered review cell constituted in accordance with Rule 97:;
- Expression of Interest or EOI means the submission made in response to the REOI;
- Final Offer means the commercial offer made by a Bidder on the basis of the single criterion specified in the RFP;
- first round of bidding means the first round of bidding conducted in accordance with Rule 91:;
- Independent Engineer means the Independent Engineer appointed under Rule 100:;
- Lead Financial Institutions mean the Lead Financial Institution identified by the Concessionaire under Rule 101:;
- Letter of Award or LOA means the letter of award issued by the Contracting Authority to the Preferred Bidder in accordance with Rule 91:;
- Model Concession Agreement(s) or MCA are documents approved by the Ministerin- Charge of the concerned Ministry/Department, after obtaining concurrence of all such Ministries/Departments, as are required to be consulted in terms of Rule 4 of the Government of India (Transaction of Business) Rules, 1961;
- Minimum Technical Requirements or MTR shall mean the minimum technical requirements as described in Rule 73:;
- Management Information System or MIS means the information system and information requirements as may be specified by a Contracting Authority or Approving Authority, which is required to be implemented by a Concessionaire or any other entity as may be specified by the Contracting Authority or Approving Authority.
- PPPAC means Public Private Partnership Appraisal Committee, set up by DEA by Notification F.No.2/10/2004-INF, dated November 29, 2005 pursuant to the decision of the Cabinet Committee on Economic Affairs (CCEA) in its meeting dated October 27, 2005;
- PPP Projects mean projects proposed or being implemented on a PPP basis;
- PPP Rules or Rules means the Public Private Partnership (Preparation, Procurement and Management) Rules 2011;
- Performance Security means the bank guarantee furnished by the Concessionaire to the Contracting Authority for the performance of its obligations under the Concession Agreement; 4
- Public Private Partnership or PPP means an arrangement between the Appropriate Government or a statutory entity or a government-owned entity or Central Public Sector Undertaking on one side and a private entity on the other, for the provision of public assets and/or public services, through investments being made and/or management being undertaken by the private entity, for a specified period of time, where there is well defined allocation of risk between the private entity and the public entity and the private entity receives performance linked payments that conform (or are benchmarked) to specified and pre-determined performance standards, measurable by the public entity or its representative.
- Project Affordability means the affordability of the PPP Project as specified in Rule 17:;
- private entity means:
- in case of a company, a company that is outside the purview of Sections 617 and 619B of the Companies Act, 1956;
- in case of other entities, those which are not under the control of the Government;
For the purpose of this definition, control means the ownership, directly or indirectly, of
more than one half of the voting power of the entity;
- Project Officer means the project officer appointed under Rule 10:;
- pre-Feasibility Study means the pre-feasibility study carried out in accordance with Rule 11:;
- pre-Feasibility Report means the pre-feasibility report prepared in accordance with Rule 11:;
- Preferred Bidder means the Bidder who has been ranked number one as per the process laid out in the RFP and criteria outlined therein after evaluation of all Bids;
- Project Value means:
- in case of PPP Projects where the private entity is expected to make capital investments, the value of the asset or facility to be constructed including the cost of land, if the cost of land is to be borne by the private entity; or
- in case the PPP Projects where the private entity is not expected to make substantial capital investments, the current replacement value of the asset or facility, whose operation and maintenance is proposed to be the responsibility of private entity.
- Qualified Applicant means an Applicant that has been qualified in the RFQ Stage;
- Registeree means a potential participant in Tender Proceedings registered by the Contracting Authority in accordance with Rule 71:;
- Request for Expression of Interest or REOI means the Tender Document prepared and issued in accordance with Chapter VI; 5
- Request for Proposal or RFP means the Tender Document prepared and issued in accordance with Chapter IX;
- Request for Qualification or RFQ means the Tender Document prepared and issued in accordance with Chapter VII;
- Request for Technical Proposal or RTP means the Tender Document prepared and issued in accordance with Chapter VIII;
- REOI Stage means that part of the Tender Proceedings following the issue of the REOI by the Contracting Authority;
- Response means any submission required to be made to the Contracting Authority as per the Tender Documents;
- Respondent means any entity that has submitted or is likely to submit a Response to the Tender Documents. It is clarified that any reference to a Respondent shall include both individuals and consortia;
- RFP Stage means that part of the Tender Proceedings following the issue of the RFP by the Contracting Authority;
- RFQ Stage means that part of the Tender Proceedings following the issue of the RFP by the Contracting Authority;
- RTP Stage means that part of the Tender Proceedings following the issue of the RTP by the Contracting Authority;
- second round of bidding means the second round of bidding conducted in accordance with Rule 91:;
- Technical Proposal means the submission made in response to the RTP;
- Tender Documents mean, as applicable, the REOI, RFQ, RTP, RFP, draft Concession Agreement and any addenda or corrigenda issued by the Contracting Authority in respect thereof as part of the Tender Proceedings;
- Tender Evaluation Committee means the team constituted by Contracting Authority as per Rule 31:;
- Tender Proceedings mean the process adopted by the Contracting Authority for the award of the PPP Project;
- Type I PPP Projects shall mean all projects proposed to be implemented on a PPP basis, which are sponsored by the Government of India or an agency of the Government of India or a statutory authority or other entities under control of Government of India or its agencies, Central Public Sector Undertaking and other entities under their administrative control
- Type II PPP Projects means all projects proposed to be implemented on a PPP basis, not under the administrative jurisdiction of Government of India, for which:
- a capital grant of Rs. 50,000,000 (Rupees fifty crore) or more, or 20% (twenty percent) or more of the project value, whichever is lower, is sought or provided from Government of India; and
- assistance is sought as Viability Gap Funding, in conformity with the Guidelines for Financial Support to Public Private Partnerships in Infrastructure issued by Department of Economic Affairs, Ministry of Finance vide OM No. I/4/2005- PPP dated January 23, 2006, as amended from time to time.
- Value for Money Assessment means the value for money assessment undertaken in
accordance with Rule 19:;
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| Rule 4: Responsibility of Contracting Authority
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- Every Contracting Authority shall be responsible for the implementation of these Rules while preparing, procuring, and managing PPP Projects.
- The Contracting Authority shall apply for the approval of any deviations from the Rules to:
- PPPAC, for Type I PPP Projects, and
- Approving Authority, for Type II PPP Projects.
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| Rule 5: Probity and transparency
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- A Contracting Authority must carry out the responsibilities related to preparation, procurement and management of PPP Projects with complete probity and in a fair and transparent manner.
- A Contracting Authority shall not include in the Tender Documents any condition or specification which favours or is likely to favour any individual Respondent or a group of Respondents.
- All members of the Project Management Team and Tender Evaluation Committee, including the transaction advisor and/or consultants, as the case may be, must disclose any potential conflict of interest with the PPP Project.
- The Contracting Authority shall evaluate such disclosure and formulate and implement an appropriate response to such conflict of interest, such as recusal of the official from any position where the conflict of interest could affect a decision.
- The Contracting Authority shall record all such disclosures in the personnel file of the declarant and in the record of the Tender Proceedings.
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| Rule 6: Interpretation
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- If any difficulty arises as to the interpretation of any of the provisions of the Rules, the Contracting Authority shall refer such matter to the Department of Economic Affairs, Ministry of Finance for clarification.
- The guidance provided by the Department of Economic Affairs, Ministry of Finance is final and binding on the Contracting Authority.
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| Rule 7: Modifications and guidance materials
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DEA and/or DOE may issue from time to time general or special instructions/orders:
- modifying the systems and procedures established by these Rules;
- for guidance in respect of the application and furtherance of these Rules.
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| Rule 8: Rules not in derogation of other laws
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| The Rules are in addition to and not in derogation of any other central law or state law for the
time being in force. |
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