Section 79 of Rajasthan Transparency In Public Procurement Rules, 2013

Documentary record of procurement proceedings. (1) Subject to the provisions of section 10, the procuring entity shall, in addition to record specified in clause (a) to (h) of sub-section (1) of the said section, maintain the following record, namely :- (a) the names and addresses of all bidders with bid prices and conditions of bid if bid is conditional; (b) the name and address of the successful bidder with price on which procurement is made; (c) in case of rate contract method, the names and addresses of the bidders with whom the rate contract is concluded; (d) a summary of modification, if any, made in the bidding documents; (e) details of qualification required, bidders having qualifications and details of qualified or disqualified bidders with reasons; (f) where a written procurement contract has been executed, including rate contract, copy of contract; (g) in the case of empanelment, the terms and conditions of the empanelment and a copy of the agreement, if any; (h) a summary of the evaluation and comparison of bids, including the application of any margin of preference and reasons for rejection or non-consideration of a bid, if any; and (i) if the procurement process is cancelled, reasons of cancellation. [Chapter- VA] [Inserted by Rajasthan Notification No. G.S.R. 37, dated 5.6.2015 (w.e.f. 24.1.2013).] Bid Process Management - Swiss Challenge Method 79A. Swiss Challenge Method of Procurement. - The Swiss Challenge Method is a method in which an unsolicited proposal for a government project is received and allows third party to challenge the original proposal through open bidding, and then lets the original proponent counter-match the most advantageous / most competitive offer. 79B. Eligible sectors under Swiss Challenge Method. - In following sectors Swiss Challenge Method of procurement may be adopted, namely: - (i) Agriculture, Horticulture, allied sector & post-harvest management Agri-infrastructure Agriculture and horticulture Markets; Floriculture parks and markets; Agro-food processing and allied infrastructure (including common-user cold storage facilities); (ii) Transportation & Logistics Roads (including bridges, highways, interchanges, and flyovers), Public Transport, Railway systems, Urban transport systems: MRTS, LRTS, Monorail, High-capacity bus systems, Airstrips, Inland water transport, Bus/Truck/Urban Transport Terminals and associated public facilities such as Public Amenities Centers; (iii) Warehousing infrastructure (including container freight stations, container depots, cold storage facilities and tank farms); (iv) Mechanized and Multistory Parking facilities; (v) Urban and Municipal Infrastructure (Sanitation, Water Supply and Sewerage; Desalination; Underground drainage; Solid waste/ Biomedical waste/Hazardous waste: Collection, transportation, treatment and disposal facilities); (vi) Education including Technical Education (Skill development etc.); (vii) Gas distribution network; (viii) Medical and Health Sector; (ix) Housing Sector & Environment; (x) Information Technology; (xi) Water Body Eco-system Management; (xii) Industrial infrastructure; (xiii) Irrigation Sector; (xiv) Land Reclamation; (xv) New & Renewable Energy (solar, wind, hydel etc.); (xvi) Power sector; (xvii) Public Buildings, Markets, gardens, parks; (xviii) Sports and Recreation infrastructure; (xix) Trade Fair, Convention, Exhibition and Cultural Centers; (xx) Tourism Sector; (xxi) Water Supply Project; (xxii) Up-gradation and restructuring of any of the projects in above sectors; (xxiii) Any project in public-private partnership that the State Government may find beneficial; (xxiv) Any proposal for the partial or complete disinvestment of a state public sector undertaking; (xxv) Any other project, which is a combination of above mentioned sectors; and (xxvi) On recommendations, with appropriate justifications, of the Administrative Department for inclusion of any new sector, SLEC may recommend for inclusion of the same to the State Government. Any new sector can be added to the list of "eligible sectors" of these rules, only after the consent of the Finance Department of State Government on the recommendations of the SLEC. 79C. Projects, which shall not be acceptable under Swiss Challenge Method. - The following proposals shall not be acceptable under Swiss Challenge Method, namely: - (i) Proposals which contravene the provisions of any law that is in force; (ii) Proposals/ projects which would result in monopolistic situation; (iii) Projects which are less than Rs. 50.00 crores (Rs. Fifty Crores) in value. (iv) Proposals / projects that fall outside the sectors and below the financial limits as prescribed in these rules. (v) Proposals of PPP Projects involving financial assistance from State Government by way of viability gap funding (VGF) more than 20% of the total project cost, excluding the cost of land. 79D. Procedure. (1) The Project Proponent or his authorized representative, shall submit an application along with certificate in Form No. 2 and details of proposal in Form No. 3 to the Administrative Department. If Pre-Feasibility Report or detailed project report is available then same shall also be submitted with application. The contents of Pre-Feasibility Report shall be as specified in Form No. 4 and the contents of detailed project report shall be as specified in Form No. 5. (2) The Administrative Department shall scrutinize the proposal as to whether it falls into the purview of the department’s development plans and whether "Public Need" is established and the proposal prima facie addresses the public need and requirement. (3) If the Administrative Department finds that the proposal received under Swiss Challenge Method has no uniqueness and is similar to the procurement of goods/works/services, that is already being done under conventional method, then the Administrative Department would be under an obligation to reject such a proposal, but in case, if the Administrative Department considers that a proposal received is appropriate to be taken under Swiss Challenge Method, despite its being similar to the procurement being done under conventional methods, then it would record reasons in writing for accepting it under Swiss Challenge Method. (4) The Administrative Department shall examine and offer its comments regarding the proposal submitted by Project Proponent. After examination if the Administrative Department is satisfied that the conditions specified in sub-rule (2) above, arc fulfilled, it shall submit its recommendations to the State Level Empowered Committee (SLEC) through Planning Department of the State Government, for according the ‘permission to proceed’. (5) The Planning Department shall arrange and coordinate the meetings of the SLEC. The SLEC, after necessary examination, may accord the permission to proceed with or without modifications. The permission to proceed shall be conveyed by the Principal Secretary/Secretary, Planning Department to the Administrative Department concerned. On receipt of the permission to proceed, the same shall be exhibit by the Administrative Department on State Pub he Procurement Portal. (6) After obtaining permission to proceed from SLEC, a letter shall be issued by the Administrative Department to the Project Proponent allowing a period of three months, for undertaking detailed studies including preparation of Detailed Project Report required for bidding and submit the detailed and comprehensive proposal to Administrative Department. In case, the Project Proponent fails to submit detailed and comprehensive proposal within a period of three months and submits written request to the Administrative Department, the Administrative Department may in appropriate case, after recoding reasons in writing extend the period specified above. (7) If the Project Proponent fails to submit the detailed and comprehensive proposal within a specified period or extended period, as the case may be, the Administrative Department may at its discretion exercise the option to develop the project on its own or through its agencies or through any third party, without the Project Proponent having any claims, and if the Administrative Department exercises the option in the manner as specified above, it shall be exhibit by the Administrative Department on State Public Procurement Portal. 79E. Preparation and submission of detailed and comprehensive proposal. (1) The Project Proponent shall submit a detailed and comprehensive proposal in Form No. 6 along with detailed project report in hard copy and soft copy, Earnest Security equal to 0.05% of the total estimated cost of the Project, Bid Value/Financial Proposal-IRR etc. (with details and supporting documents, wherever necessary), project financial summary in Form No. 7 and check list for submission of documents in Form No. 8 within a period specified in Rule 79-D to the Administrative Department in hard copy and soft copy. (2) It should be ensured by the Project Proponent that all financial reports and/or the documents having financial details must be duly verified from a competent Chartered Accountant. (3) The Administrative Department may carry out additional studies for independently determining the project cost, project revenues, viability and risk analysis etc. to ensure proper benchmarking. (4) [ The Project Proponent shall submit the detailed and comprehensive proposal in two covers. The first cover shall include the detailed project report, the survey data, specifications (input/output), as well as designs of the project, total estimated cost of the project on the basis of detailed project report, cost of preparation of detailed project report, along with the Earnest Security. The detailed project report shall include the details as specified in Form No. 5. The first cover shall be opened by the Administrative Department, or by a Committee constituted by the Administrative Department for this purpose. The Bid Value, in such form, as may be required by the Administrative Department, shall be submitted in a separate cover, duly sealed by the project proponent, which shall be opened by the Administrative Department, or by a Committee constituted by the Administrative Department for this purpose, only at the time of opening of the financial bids received from other bidders through open competitive bidding process.] [Substituted by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] 79F. Earnest Security. (1) The Project Proponent shall furnish interest-free Earnest Security, as a token of sincerity and good faith, amounting to 0.05% of the total estimated cost of the project through demand draft or bank guarantee, acceptable to the Administrative Department concerned, with a validity period of not less than 180 days commencing from the date of submission of detailed and comprehensive proposal (including claim period of 60 days), to be extended as may be mutually agreed, from time to time. The Bid shall be summarily rejected if the detailed and comprehensive proposal is not accompanied by the Earnest Security. (2) The Project Proponent shall also submit the requisite Bid Security as specified in the Bid Document, in case the bidding process is initiated under the proposed project by the Administrative Department concerned. [The Bid Security shall be calculated on the basis of the total estimated cost of the Project as per the detailed project report.] [Inserted by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] The Project Proponent shall be required to furnish the Bid Security as specified in the Bid document by the last date and time fixed for submission of bids under the bidding process initiated for the proposed project. The Earnest Security furnished by the Project Proponent earlier shall be adjusted against the Bid Security. If Project Proponent fails to furnish Bid Security of required amount within the time specified in Bid Document, his Earnest Security shall be forfeited and he shall have no right as the Project Proponent. 79G. Detailed Project Report (DPR) preparation cost. (1) The direct cost of preparing the DPR shall be mentioned by the Project Proponent in detailed and comprehensive proposal. The DPR preparation cost shall include external payout, internal cost, out-of pocket expenses and taxes, all accompanied by original receipts. (2) [ The Administrative Department or a Committee, constituted by the Administrative Department for this purpose, shall negotiate the cost of preparation of the detailed project report with the Project Proponent and ensure that such assessment of the detailed project report preparation cost shall be reasonable and justifiable. The reimbursement of detailed project report preparation cost to the project proponent shall be 0.1% of the final bid value or of the approved negotiated cost of preparation of detailed project report, whichever is lower.] [Substituted by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] (3) The cost of preparation of DPR, as determined under sub-rule (2) above, may be reimbursed to the Project Proponent only in the case of final selection of successful bidder, if it is other than the Project Proponent, and only after the Procuring Entity has entered into agreement with such successful bidder. The cost of preparation of the DPR, payable to the Project Proponent, shall be recovered from the successful bidder as specified in the bid document: Provided that the Project Proponent shall not be entitled for the cost of preparation of DPR if he fails to furnish Bid Security as specified in sub-rule (2) of Rule 79-F. (4) In case, for any reason whatsoever, the project is not taken up by the Administrative Department, the cost of preparation of DPR shall not be reimbursed to the Proposal Proponent. 79H. Clarifications regarding Detailed Project Report (DPR). - No changes shall be permitted in the DPR once the Project Proponent has submitted the DPR to the Administrative Department concerned. However, the Administrative Department may seek clarifications with respect to the DPR from the Project Proponent and these clarifications shall be attached as an addendum to the DPR. 79I. Bid Parameters and Bid Value. (1) The Project Proponent shall submit the detailed and comprehensive proposal along with the bid parameters and Bid Value. The decision on the bid parameters shall be taken by the Administrative Department concerned and the Administrative Department shall have the authority to make changes to the project proposal as per the needs, requirements and development plans of the Administrative Department, without changing the basic theme and fundamental structure of the project proposal. Any such change in the bid parameters shall be intimated to the Project Proponent. [be intimated to the Project Proponent. If required, the] [Substituted 'The Administrative Department concerned shall evaluate the bid value vis-a-vis the final bid parameters and if required, the' by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).]Administrative Department may provide an additional time of fifteen days to the Project Proponent for submitting the final bid value. (2) [ If the additional time is allowed under sub-rule (1), the Project Proponent shall submit the final bid value in such form as may be required by the Administrative Department. After submission of final bid value by the project proponent, the original bid value submitted by the project proponent shall become inoperative. The final bid value shall be submitted in a separate cover, duly sealed by the project proponent, which shall be opened only at the time of opening of the financial bids received from bidders through open competitive bidding process. In case, the Project Proponent desires to give additional information, he may enclose such information separately. After submission of the final bid value by the project proponent, the Administrative Department shall submit the proposal, with appropriate recommendation, to the State Level Empowered Committee.] [Substituted by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] 79J. Competent Authority for approval of Projects under SCM and Procedure to be followed thereof. (1) After examination of the detailed and comprehensive proposal, the Administrative Department shall submit detailed and comprehensive proposal along with its recommendation to SLEC for consideration. The Administrative Department shall also indicate the budgetary provisions for the project proposal. (2) On receipt of recommendation of the Administrative Department, the SLEC shall examine, consider and grant approvals on merits. 79K. Bidding Process. (1) The DPR (except for proprietary technology details) shall be shared with prospective bidders so as to ensure fair competition and for providing an opportunity for a competitive bidding process. The open competitive bidding process, as provided in Chapter-V of these rules, shall be initiated by the Administrative Department concerned after approval of the project proposal from SLEC. (2) The bidding document, among other essential clauses, shall incorporate details about the necessary clearances/approvals to be taken from respective authorities and who, i.e. the Administrative Department or the successful Bidder/ Project Proponent, shall be responsible for taking it. keeping in view the nature and [requirements of individual project. The bidding document shall clearly incorporate that the open bidding process is being taken up under Swiss Challenge Method of procurement.] [Substituted 'requirements of individual project.' by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] (3) After examination of the bids, if the proposal of the Project Proponent is found to be lowest or most advantageous, as the case may be, in accordance with the evaluation criteria as specified in bidding document, then the Project Proponent shall he selected and awarded the project. In case bid of other bidder is found lowest or most advantageous, as the case may be. the Project Proponent shall be given an opportunity to match the lowest or most advantageous bid within a period as specified. If the Project Proponent agrees to match the lowest or most advantageous bid, within the time period specified, the Project Proponent shall be selected and awarded the project. In case the Project Proponent fails to match the lowest or most advantageous bid, within the period specified, the bidder who has submitted lowest or most advantageous bid, as the case may be, shall be selected and awarded the project: [Provided that, if through the open bidding process, bid of other bidder is found lowest or most advantageous, as the case may be, the project proponent shall be given an opportunity to match such lowest or most advantageous bid, only if the final bid value offered by the project proponent is within 15% of such lowest or most advantageous bid, as the case may be.] [Added by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] 79L. Transaction Advisor. (1) The Administrative Department concerned may appoint a Transaction Advisor for the project or entrust the responsibility on officer of the Department. The Transaction Advisor shall be capable to offer technical, financial and legal advice and assist the Administrative Department concerned in finalization of the successful bidder. (2) In case, the Administrative Department desires to appoint a Transaction Advisor for a project proposal received under Swiss Challenge Method, it may initiate the process of the appointment of the Transaction Advisor immediately after the permission to proceed is granted by the SLEC in order to save time in the process. It shall be ensured by the Administrative Department that the process of appointment of the Transaction Advisor is completed before submission of DPR by the Project Proponent. (3) The functions and responsibilities of the Transaction Advisor shall be as under, - (i) he shall examine the DPR with respect to technology, technical specifications, cost estimates, drawings, Internal Rate of Return (IRR), Net Present Value (NPV), Equity debt ratio, Value for Money analysis, necessary approvals (statutory or otherwise) required for the implementation of the project etc.; (ii) he, if required by the Administrative Department, shall carry out additional studies for independently determining the project cost, project revenues, viability and risk analysis etc. including Value for Money analysis to ensure proper benchmarking; (iii) he shall be required to specify broad parameters regarding environment and social safeguards that need to be adhered by the concessionaire during implementation period in the bid document; (iv) he shall assist the Administrative Department to get necessary approvals from appropriate authorities for the implementation of the project; (v) he shall develop documents for Request for Qualification (RFQ)/Request for Proposals (RFP) and submit to the Administrative Department concerned for approval. The bidding criteria shall be designed in such a way that maximum competition is ensured; (vi) he shall develop and present the RFP and the concession agreement to the concerned authorities for approval and after competent approval, the same shall be launched into the market; (vii) he shall assist the Administrative Department concerned with the Bid process management, including Request for Proposal (RFP) launch, formulation of responses to bidder queries, bid evaluation and recommendations as per the criteria mentioned in the RFP document, recommending a bidder, contract negotiations and bid closure which are required to be undertaken, for bringing the Project to a Technical close; (viii) he shall submit all the documents for approval to the Administrative Department. He shall not provide any document to the bidder(s) or any other person(s) without explicit consent from the Administrative Department concerned; and (ix) he shall perform any other functions or responsibilities assigned by the Administrative Department. 79M. Time frame for the total process. - The time frame for procurement, through Swiss Challenge Method shall be as under: - Provided that, in appropriate cases, the Administrative Department may relax the above mentioned period. 79N. Eligibility criteria for the Project Proponent. (1) [The legal entity or person, including joint venture or consortium,] [Substituted 'The following legal entity or person' by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] shall be eligible for submitting proposal as Project Proponent, if, - (i) the person or lead member shall have an average turnover of minimum of 100% project cost in the last three financial years and in case of Joint venture/consortium, an average turnover of minimum of 100% of project cost in last three financial years by lead member and the audited balance sheets of last three financial years shall be submitted; (ii) [the person or lead member, or any other member of the joint venture or consortium, shall have the experience] [Substituted 'the person or lead member shall have experience' by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] in handling at least one project in that Sector in which the proposal is being submitted, costing not less than 100% of total project cost over the last 10 years, in such project(s) where the contract has been awarded and work has been completed. (Work order and completion certificate from the client shall be provided); (iii) he shall not be blacklisted by Central Government, any State Government or any Government agency. He shall submit an undertaking to the effect that he has not been blacklisted by Central Government, any State Government or any Government agency; and (iv) he shall necessarily fulfill the prequalification / qualification criteria/ parameters for bidders, as per the bid document issued by the Administrative Department for open bidding process for the project. (2) In case of consortium, a person authorised through power of attorney executed by all the members in his favour, shall sign the proposal on behalf of all the member of the consortium and such power of attorney shall be submitted along with the proposal. (3) [ In case of joint venture or consortium, the Lead Member, and the member of joint venture or consortium, on the basis of whose technical capability, the technical eligibility of joint venture or consortium for the project is decided, shall not be allowed to exit from the joint venture or consortium.] [Substituted by Rajasthan Notification No. G.S.R. 79, dated 28.8.2015 (w.e.f. 24.1.2013).] (4) In case of, - (i) company, certificate of incorporation; (ii) in case of firm, certificate of registration; and (iii) in case of partnership firm, partnership deed shall be submitted along with the proposal. 79O. Power to call off the Project. - The Administrative Department concerned shall have the right to call off the project anytime during the process without assigning any reason to the Project Proponent, but it may call off the project before entering into an agreement with the Project Proponent or the successful bidder, as the case may be. Once an agreement is entered in to by the Administrative Department concerned, the respective clauses of the duly entered agreement shall apply. If the Administrative Department calls off the project in the manner as specified above, the same shall be exhibit by the Administrative Department on State Public Procurement Portal.