Embed Size (px)
Citation preview
1
एन.एल.सी. इिंडया िलिमटेड
NLC India Limited (पवू म नेयवेली िल नाइट काप रेशन िलिमटेड)
(Formerly Neyveli Lignite Corporation Limited)
(भारत सरकार का ‘नवर न’ उ यम) ('Navratna' - A Government of India Enterprise)
नदेशक - योजना एवं प रयोजना का कायालय CIN:L93090TN1956GOI003507
Office of the Chief General Manager / Contracts Block – 1, Neyveli – 607 801, Cuddalore Dist. Tamil Nadu, India.
LIMITED TENDER ENQUIRY TENDER DOCUMENT
FOR CONSULTANCY SERVICES FOR CONDUCTING
DUE DILIGENCE ON LEGAL, TAX ADVISORY AND FINANCIAL CONSULTANCY ON MASTER PROJECT AGREEMENT FOR SETTING UP OF A PILOT SCALE PLANT ON
MATMOR PROCESS AT NEYVELI
TENDER NO: CO CONTS / 0015E / CARD / Due Dili-Matmor / 2017, DT:23.05.2017 Last Date & Time for submission of Bid : 06.06.2017 up to 14.30 Hrs.
Date & Time of opening : 06.06.2017 @ 15.00 Hrs.
Contact Details: Phone: 04142/252210,252215 & 251620 Fax : 04142-252026/252645/252646 Web site: www.nlcindia.com E.Mail: [email protected] [email protected]
Registered Office: First Floor, No.8, Mayor Sathiyamurthy Road, FSD, Egmore Complex, Chetpet, Chennai- 600 031.
2
TABLE OF CONTENTS
DESCRIPTION Page No.
SECTION- A Invitation to Bid
SECTION - B Commercial Conditions of Contract
SECTION - C Scope of Work
3
SECTION – A INVITATION TO BID
4
SECTION – A
CL. NO.
CONTENTS Page No
1.0 Invitation to Bid
2.0 Scope of Work
3.0 Time Schedule
4.0 Bid Submission and Opening
5.0 Bid Submission
6.0 Latest Hour for receipt of Bids
7.0 Tender Opening
8.0 Evaluation of Price
9.0 Validity of Bid
10.0 Clarifications
11.0 No claim for compensation for submission of bid
12.0 Policy of bids under consideration
13.0 NLC India Limited's right to accept bid
14.0 Deputation of representatives for discussion
15.0 Vital Clauses
16.0 Signature of bids
17.0 Award criteria
18.0 Manner of Signing of Contract
19.0 Price favorableness certificate
20.0 Conditions of LOA
21.0 Non-Disclosure Agreements (NDA):
5
NLC INDIA LIMITED INVITATION TO BID
LIMITED TENDER ENQUIRY
SECTION – A 1.0 INVITATION TO BID:
M/s. NLC India Limited (NLCIL), Neyveli, a Navratna Government of India Enterprise registered under Indian Companies Act, 1956, hereinafter referred to as NLCIL or Client invites bids in English, one original and six identical copies for conducting due diligence on legal, tax advisory and financial consultancy on master project agreement for setting up of a Pilot Scale Plant on Matmor process at Neyveli Bids shall be submitted in Two Cover System.
2.0 SCOPE OF WORK:
The scope of work covered under this “Consultancy Services” is for conducting due diligence on legal, tax advisory and financial consultancy on master project agreement for setting up of a Pilot Scale Plant on Matmor process at Neyveli as indicated in SECTION-C.
3.0 TIME SCHEDULE:
The Scope of consultancy services, covered under this work shall be performed as per the time schedule given below.
Sl. No. Description Time Line
1 Submission of draft report Within 4 weeks from the date of issue of LOA.
2 Giving presentation to NLCIL & NMDC Within 5 – 6 week from the date of issue of LOA.
3 Final report submission with incorporating remarks given from NLCIL & NMDC
Within 7 – 8 week from the date of issue of LOA.
6
4.0 BID SUBMISSION AND OPENING: 4.1 General 4.1.1 All bids, including all enclosures, shall be prepared in English language only by typing or
printing with indelible black ink in one original and its six identical copies of the original of the bids. All bid proposals shall be prepared and submitted in two parts, Cover wise in separate sealed cover, with all pages serially numbered. Original and each identical copies shall be bound separately (Excluding bid guarantee). However, the bid guarantee shall be placed separately in Cover-I along with Covering letter, Form of Bid, Letter of Undertaking and check List. One original and its Six identical copies of Cover-I shall be put in one sealed cover super scribing as Cover – I indicating tender reference and tender opening date. Similarly one original and its six identical copies of Cover –II shall be put in one sealed cover super scribing as cover – II indicating tender reference and tender opening date. These two covers shall be enclosed in an outer cover duly super scribed with the tender reference and date of opening and this outer cover shall be duly sealed. The Bidder's bid and the documents attached thereto shall be considered as forming part of the bid documents.
4.1.2 If the price cover is opened due to wrong marking/indication on the top of the cover by the
bidder, the bid shall not be considered. 4.1.3 If the prices are revealed in Cover -I, the bid shall not be considered. 4.1.4 Bids submitted by Telefax or E- Mail and the bids received after the expiry of the time
specified for receiving completed bids will not be accepted. 4.2 Bidders shall submit the bids in the following manner: 4.2.1 COVER-I The Cover – I of the bid shall be accompanied by Covering Letter, the Form of Bid as per
Annexure-A and Bid Guarantee for the amount as indicated in the Notice Inviting Bid and Letter of Undertaking with Checklist for compliance of tender conditions.
4.2.2 Covering Letter
Bidders as part of their Proposal shall submit a Covering Letter. The letter shall be signed by the Authorized Signatory of the Bidder. The covering letter shall contain the complete contact details of the bidder i.e Name, Address, Contact No:, Fax No. / E.mail id etc.
4.2.3 Form of Bid
Bidders as part of their Proposal shall submit duly filled in Form of Bid as per the format given in Annexure - E. This shall be signed by the Authorized Signatory of the Bidder.
7
4.2.4 Bid Guarantee a. The amount shall be as specified in the Notice Inviting Bid and in the form of Demand
Draft or Banker’s cheque drawn in favour of NLC INDIA LIMITED, on any Bank in Neyveli or payable at par by a Bank in Neyveli or NEFT/RTGS mode to NLC INDIA LIMITED,’s Account No.10895129204 Beneficiary Name: NLC INDIA LIMITED, Estt.A/c in State Bank of India, Branch: Neyveli Main (IFS Code No. SBIN0000958) and the remittance details with UTR No./DD/ Banker’s cheque shall be enclosed with the bid in Cover I failing which the offer is liable for rejection. The Bidder is to note that the Bank Commission charges will be to the account of the bidder and the net amount transferred to NLC INDIA LIMITED,’s account shall be equal to the amount specified in the Notice Inviting Bid. The qualification of the bidder is subject to receipt of amount of the Bid guarantee stipulated in the tender.
b. The Bid Guarantee can also be in the form of an Irrevocable Bank Guarantee (as per
the format at Annexure – B) from any Nationalized bank / Scheduled Bank in India except Bank of China to issue such bank guarantee on a non-judicial stamp paper of value of Rs.80/-. The stamp paper shall be purchased in the name of the Bank.
c. The Bid Guarantee shall be valid for 10 (ten) months from the date of tender opening.
The Bid Guarantee deposited in any manner shall not bear any interest. d. Submission of a valid bid guarantee for the stipulated amount in full along with the bid
and acceptance of such bid guarantee by NLC India Limited, is a condition-precedent for such Bid to be eligible for consideration by NLC India Limited. An offer without Bid Guarantee, or with bid guarantee for a lesser amount, or bid guarantee in a form other than specified herein above, shall be liable to be rejected without further reference to the Bidder(s) or to the concerned Bank.
e The Bid Guarantee shall be executed only on behalf of the bidder on whose name the
tender documents have been issued. f. The Bid Guarantee shall also have provision for extension by the banker upon request
by the bidder. The bidder shall arrange for extension of validity upon request from NLC India Limited.
g. The Bid Guarantee shall be forfeited if:
1. the bid is unilaterally revoked/ revised /modified / withdrawn before expiry of bid validity period, by the Bidder(s); or
2. the price(s) are unilaterally increased or altered after the bid opening and during validity of the offer, by the bidder,
3. On issue of LOA by NLC INDIA LIMITED, India Limited to the bidder, the bidder omits or refuses to accept the said LOA within the stated period.
4. the successful bidder, after issue of LOA, omits or fails to submit Contract Performance Guarantee within the specified period.
8
h. Without prejudice to any other remedies available at law,
(i) in the event of any of the contingencies mentioned in Clause 4.2.4 (g – 1 to 3), NLC India Limited shall have the right, at their discretion, to reject the bid without notice to the Bidder(s);
(ii) in the event of the contingency mentioned in Clause 4.2.4 (g – 4) NLC India
Limited shall have the right to cancel the LOA, without notice to the Bidder(s); (iii) in addition on (i) and (ii) above, NLC India Limited shall also have the right to
de-bar the defaulting Bidder(s) for a period to be specified, from participating in any of their tenders and NLC India Limited reserves the right to inform the matter to other PSUs/statutory Bodies and the decision of NLC India Limited in this regard shall be final and binding on the Bidder(s).
i. Return of Bid Guarantee
1) For unsuccessful Bidders: For unsuccessful bidders, the bid guarantee shall be returned to such Bidders
within 15 days from the date of approval for placement of order on the successful bidder(s).
2) For successful Bidder: For successful bidder, the Bid Guarantee shall be returned to such Bidder within
15 days from the date of acceptance of Bank Guarantee for Contract Performance or faithful Performance.
4.2.5 Letter of Undertaking
The Bidders shall furnish duly filled in Letter of Undertaking (as per Annexure – C) along with Checklist for Compliance of Tender Conditions and bidders checklist for documents submitted. Bids received without the ‘Letter of Undertaking’ will be rejected.
4.3 COVER- II 4.3.1 The Cover – II of the bid shall be accompanied by the Form of Bid, Techno-commercial
details, Questionnaire on Commercial points and the 'Schedule of Prices' duly and correctly filled in by the Bidder shall be submitted in a separate sealed cover properly pasted/secured and sealed subscribing as Cover -II indicating Tender No and tender opening date. Cover – II shall contain the full details of the profile of the Bidder(s), in addition to the following. One original and six identical copies of the Cover – II covers shall be submitted.
4.3.2 Form of Bid
Bidders as part of their Proposal shall submit duly filled in Form of Bid as per the format given in Annexure – E. This shall be signed by the Authorized Signatory of the Bidder.
9
4.3.4 Tender Document and Techno-commercial details
Any amendment / corrigendum / errata for the Tender Document shall also be signed by the Bidder, in order to confirm the acceptance of the same in toto and shall be enclosed in Cover – II of the Bid. Bidder to furnish Techno-commercial details of the Bid.
4.3.5 Schedule of Prices
a. Price given should cover the entire scope of work and should be as per price format given in Annexure – F. The bidder shall quote his price for entire scope of work. A bidder quoting a system of prices other than that of specified format, shall be summarily rejected.
b. The Bidder shall quote his price against each item of the Schedule as indicated in the enclosed price format, clearly both in figures and in words. The bidder shall quote the prices only once after considering all the pros and cons. Alternatives or rebate percentage etc., if any, should be spelt out by the bidder in the first quotation itself. Offers contained in supplemental / additional covers shall be summarily rejected.
c. Rates shall be quoted both in figures and in words in clear legible writing. No overwriting is allowed and no columns shall be left blank. All scoring and cancellations should be counter signed by the bidder. In case of illegibility, the interpretation of the NLC India Limited shall be final. All entries shall be in English language only.
4.3.6 The prices shall be quoted in Indian Rupees only. 4.4 To assist in the scrutiny, evaluation and comparison of bids, the Purchaser may, at its
discretion, seek from any or all bidders, clarification(s) of his/their Bids, including break-downs of unit rates, technical information, documents and materials after the Tender Opening. The request for clarification and the response shall be in writing or by fax, but no change in the final price or substance of the Bid shall be permissible.
5.0 BID SUBMISSION:
All the two Covers of the Bid shall be superscribed as under: Name of the Bidder: Bidder’s Address: Tender No:............. Cover No:.................... Opening Date (Cover - I) Time:.................... Proposal for ............................................................................ and submitted To The Chief General Manager /Contracts, Corporate Office, NLC India Limited, Neyveli - 607 801, Cuddalore District, Tamil Nadu, INDIA.
10
6.0 LATEST HOUR FOR RECEIPT OF BIDS: Bids must be received/deposited/delivered to the officials at the office mentioned below, not later than 14.30 Hrs. (I.S.T) on the date fixed for Bid Opening. Bids deposited/delivered after the time and date fixed for the receipt of the bids shall be rejected.
a) Mr. A. Jayaraj, Chief Manager / Contracts b) Mr. V. Dakshinamoorthy, Dy. Chief Manager / Contracts c) Mr. C. Venkatraman, Manager / Contracts.
in the Office of the Chief General Manager / Contracts, Corporate Contracts Division, Corporate Office, Block – 1, NLC India Limited. NEYVELI -607 801, Cuddalore District, TAMIL NADU, INDIA Bids with no indication given on the outside of the envelope to indicate that it is a bid which therefore gets opened before the due date shall be liable to be disqualified.
7.0 TENDER OPENING:
a) This is a two stage tender. On the scheduled date and time of tender opening, the Cover-I will be opened first and the bidders who satisfy the Bid Guarantee conditions and submission of letter of undertaking alone will be considered and shortlisted for Cover-II opening.
b) On the scheduled date and time of tender opening, Tender opening committee will
open the Cover – I first and shall confirm Details of Bid Guarantee as in NIT, compliance of Letter of undertaking. The bids confirming all the above is treated as Responsive bids and Cover – II of the responsive bidders only will be opened.
c) Cover-II will be opened on the same day. Evaluation of Prices shall be dealt as
per clause 8.0 below.
f) If the lowest offered bidder satisfies all Techno-commercial conditions, they will be considered for order placement.
g) If the lowest offered bidder fails to qualify Techno-commercial conditions, the next
lowest bidder(s), in the ascending order of the offered price will be evaluated on Techno-commercial conditions and order will be decided on the qualified bidder at his offered rate. This process will be repeated till the works are either awarded or all the eligible bidders are exhausted.
11
7.1 If a bidder desires to be present at the time of Tender Opening, he shall depute his representative(s) (not more than two persons) in time with due authorization for participating in the Tender Opening.
7.2 Bids received in incomplete shape shall be liable for rejection. 7.3 No request for postponement or extension of time shall be permitted for tender opening
date. 7.4 Bids submitted only against priced tender documents will be considered and the bid shall
be in the name of the bidder(s) on whose name the tender document has been issued. 7.5 NLC India Limited takes no responsibility for transmission delays, loss or non-receipt of
bid documents or any letters sent by post/courier, either way, and also reserve the right to reject any bid in part or full without assigning any reasons therefor.
7.6 Notwithstanding any information and data, which may be contained in these tender
documents, the bidder has to make independent inquiries and generally obtain his own information on all matters that may in any way affect prices, risks and obligations of the Contractor under the Contract.
7.7 Bids once submitted shall not be returned and shall remain the property of the Purchaser. 7.8 The submission of any bid connected with these documents and specifications shall
constitute an agreement that the Bidder shall have no cause of action or claim against the Purchaser for rejection of his Bid. The Purchaser shall always be at liberty to reject or accept any bid or bids or part thereof at his sole discretion and any such action will not be called into question and the bidder shall have no claim in that regard against the Purchaser.
8.0 EVALUATION OF PRICE: 8.1 The following procedures would be followed for evaluation of bids. 8.2 Prices quoted in Annexure – F Schedule of Prices (Summary of Price Schedule) shall only
be considered for evaluation. 8.3 All the Sl. Nos. and columns in the `Schedule of Prices' shall be quoted both in figures as
well as in words. If no prices are envisaged for any of the entries, `Nil’ shall be mentioned. The terms, such as ‘not applicable’, ‘if applicable’, ‘included’ ‘included in’, included above’ ‘-------‘or blank shall not be used. “As applicable extra at the time of supply” is not permitted against any column.
8.4 If there is any discrepancy between the amount quoted in words and figures, the amount
quoted in words will be considered.
12
8.5 Where there is discrepancy between the unit rate and line item total resulting from
multiplying the unit rate by quantity, the unit rate as quoted shall only prevail and shall be adopted.
8.6 In case the amount indicated against the sum of items/total price in the schedule of prices
does not tally with the totaling of individual items, then the sum of individual item prices will be taken for evaluation.
8.7 Evaluation and Comparison of Bids 8.7.1 The Bidder has to satisfy himself that full information is furnished as required in the tender
documents. Lack of particulars or incomplete information furnished will be at the risk of rejection of the Bid, without notice.
8.7.2 The Bids received and accepted will be evaluated by the Client to ascertain the most
suitable Bid in the interest of the Client, for the complete works covered under this document.
9.0 VALIDITY OF BID:
The bid shall be kept valid for acceptance for 8 months from the date of opening of the Bids.
10.0 CLARIFICATIONS: 10.1 A bidder, who has been issued the tender document may seek clarifications, if found
necessary, as respects any printed portion of the tender documents. But such requests in writing should reach the Chief General Manager / Contracts, NLC INDIA LIMITED, seven days in advance of the date of tender opening. In response to such requests or even otherwise, Purchaser shall have the right to provide clarifications as may be considered necessary to all those who have been issued the tender documents.
10.2 The NLC INDIA LIMITED, shall endeavour to render / communicate their clarifications in
writing to the bidder without delay. After receipt of such clarifications, the bidder may submit his bid but within the time and date as indicated in the NIB. All such clarifications and the relevant exchange of correspondence between the parties in this regard shall form part of the tender specifications and Letter of Award (LOA).
10.3 No extension of time for submission of bid will be granted on account of bidders request
for interpretation / clarifications unless under special circumstances. However the Purchaser may at his discretion extend the dead line for the submission of bids by amending the Tender documents. In such a case all rights and obligations of the Purchaser and Bidder as set in the previous deadline shall hereafter be subject to the extended dead line.
13
11.0 NO CLAIM FOR COMPENSATION FOR SUBMISSION OF BID:
11.1 The submission of any bid connected with these documents and specifications shall
constitute an agreement that the Bidder shall have no cause of action or claim against the NLC India Limited for the rejection or non-acceptance of his Bid. The Purchaser shall always be at liberty to reject or accept any bid or bids or part thereof at his sole discretion and any such action will not be called into question and the bidder shall have no claim in that regard against the Purchaser.
11.2 The Bidder whose bid is not accepted shall not be entitled to make any claim on account
of costs, charges and expenses incidental to or incurred by such Bidder, as a result of or in connection with the submission of the bid, or the consideration of the bid by NLC India Limited, even if NLC India Limited, elects to modify/ withdraw/ abandon the Invitation to Bid or does not accept the bid.
12.0 POLICY OF BIDS UNDER CONSIDERATION: Bids shall be deemed to be under consideration immediately after they are opened and until such time NLC India Limited makes official intimation of award/rejection to the Bidder. While the Bids are under consideration, Bidders and/or their representatives or other interested parties are advised to refrain from contacting, by any means, the NLC India Limited and/or its employees/representatives on matters related to the Bid under consideration. The NLC India Limited if necessary will obtain clarifications on the Bids, by requesting for such information from any or all the Bidders either in writing or through official discussions. The Bidder(s) will not be permitted to change the final price or substance of the Bid after the same has been opened. Unilateral revision or withdrawal of bids by the bidder within the subsistence of the validity period of offer shall not be permitted.
13.0 NLC INDIA LIMITED's RIGHT TO ACCEPT BID:
13.1 NLC India Limited shall always be at liberty to reject or accept any bid or bids or part
thereof at its sole discretion and any such action shall not be called into question and the bidder shall have no claim in that regard against NLC India Limited.
13.2 The Purchaser does not pledge itself to accept the lowest bid and reserves the right to
reject such bids for reasons to be recorded in writing. Other bids will be retained as given. The issuance of this NIB or the opening of the tender/bids, does not bind NLC INDIA LIMITED, to accept any of the bids and NLC India Limited, shall be at liberty, at any time upto the issue of a LOA, to abandon further action in the matter at any stage, altogether or go for re-tender. The decision of NLC INDIA LIMITED, in this regard shall be final and binding on the bidders and the bidders shall not be entitled to any notice in this regard or to any compensation whatever.
14
14.0 DEPUTATION OF REPRESENTATIVES FOR DISCUSSION: After opening of the bid, if NLC INDIA LIMITED, desires to have discussion, the bidder shall be in a position to depute, at short notice, his representative(s) having full authority for finalising technical parameters as well as Commercial Terms and Conditions of the LOA.
15.0 VITAL CLAUSES:
All the clauses in the General Commercial Conditions of Contract and Scope of work and other conditions are vital and no deviation is permitted in these clauses. However, deviation if any taken will be dealt as below: If any of the bidders, takes any deviation to the conditions prescribed in the Tender, the Client shall consider such deviations and render/communicate their decisions if the deviations taken by the bidder is not acceptable to them. In spite of such decision by the Client on the deviation taken by the bidder, if the bidder declines to accept the same, the Client shall be at liberty to reject such bid, as being not in conformity with the conditions of Tender, and the decision of the Client in this regard is final and binding on the bidder.
16.0 SIGNATURE OF BIDS: 16.1 The Bid must contain the name, residence and place of business of the person or persons
making the Bid and the Form of Bid must be signed and sealed by the Bidder with his full signature. The name of the person/persons signing should be typed or printed below the signature and each page of the Bid shall be properly authenticated by appending signatures/initials and seals, if any.
16.2 Bid by a partnership firm must contain full names & addresses of all the partners as on
date of signature and be signed with the partnership/trading name, together with the signature and designation of one of the Authorized partners or other Authorized representative(s). Where there is a Managing Partner, the Bid shall ordinarily be signed by such partner. Only registered partnership firms are permitted to participate in the tender process.
16.3 Bid by a Corporation/Company must be signed with the legal corporate name of the
Corporation/Company by the President, Managing Director or by the Secretary or any other person or persons Authorized to submit bid on behalf of such Corporation/Company and shall contain the Official seal of the Company.
16.4 A Bid by a person who affixes to his signature the word ‘President’, ‘Managing Director’,
‘Secretary’, ‘Agent’, or other designation without disclosing his Principal will be rejected. 16.5 Satisfactory evidences of authority of a person signing on behalf of the Bidder shall be
furnished with the Bid.
15
16.6 The Bid/offer shall be submitted only in the real/registered/trading name of the Bidder and
anonymous/ pseudonymous shall be rejected. 16.7 Any corrections, erasure or other changes in the Bid documents shall be duly
authenticated by appending signatures/initials and seals, if any of the person signing the Bid.
16.8 If a bidder is represented by an authorized representative / Agent / Power of Attorney
holder, such authorized representative, agent etc shall not sign and submit any other bids in his Personal behalf or by representing any other bidders. If more than one bid are received from any person in his personal capacity and / or representative capacity, all such tenders will entail in rejection.
16.9 Bids not conforming to the above requirements will be disqualified. 17.0 AWARD CRITERIA:
17.1 The Purchaser will issue the LOA to the bidder who meets the techno-commercial
aspects, determined as substantially responsive and who have become the lowest Bidder after conclusion of Reverse Auction.
17.2 The Purchaser reserves the right to accept or reject any bid and to annul the bidding
process and reject all the bids at any time prior to Award of Work, without thereby incurring any liability to the affected Bidder/Bidders and not obliged to inform the grounds of such action.
17.3 The Purchaser’s decision will be final in this regard. 18.0 MANNER OF SIGNING OF CONTRACT:
18.1 On the Bid being accepted by the CLIENT, Contract will be signed by and between the CLIENT and the Successful Bidder at the earliest but not later than 30 days from the CLIENT’s Letter of Award. All payments will be made after signing of contract
18.2 The Contractor shall present himself for signing the Contract with proper Power of Attorney and other requisite materials. The CLIENT shall prepare two (2) originals of Contract for signing the Contract. After signing the Contract, one original will be given to the Contractor and the other original will be retained by the CLIENT. Within 7 days after signing the Contract, the Contractor shall submit ten (10) true copies of the Contract document with all enclosures neatly bound, to the CLIENT free of charge (Specimen of Contract Agreement form is at SECTION-G)
16
19.0 PRICE FAVORABLENESS CERTIFICATE: The Bidder is requested to confirm and certify that the prices quoted in their offer are not
less favorable to NLCIL than those quoted to any other Public Sector Undertaking (PSU) / Government Department and benefit of lower prices if any during the currency of the order if placed on the Bidder have to be extended to NLCIL as well.
20.0 CONDITIONS OF LOA: Subject to the conditions enumerated in the Commercial Conditions of Contract, the
tender will be governed by "Scope of Work " detailed in the Section-C of tender document. The Technical Conditions of Contract shall prevail over the other conditions elsewhere specified in the tender document to the extent they differ from the other conditions.
21.0 NON DISCLOSURE AGREEMENTS (NDA):
The successful Bidder shall be required to execute Non-Disclosure Agreements with ECT Australia, NLCIL and NMDC immediately after accepting LOA. (Format of NDA is at SECTION-H).
*****
17
ANNEXURES OF
SECTION – A
18
ANNEXURE – A
Form of Bid
(To be submitted by the Bidder along with Cover-I) From To Chief General Manager / Contracts, NLC India Limited, Neyveli – 607 801 Cuddalore Dist., Tamil Nadu INDIA.
Subject: ……………………………. (Name of the Package) for ……………………………….. (Name of the Project/tender) Invitation to Bid. No…………………………..
<<>> 1. Having carefully examined all the Tender Documents attached to your Invitation to Bid
No………………………… dated ……………., and its Amendments / errata / Corrigendum / Clarifications issued till the date of tender opening, we agree to Complete the WORKS in conformity with all the terms and conditions stated in Tender Documents and its Amendments / Errata / Corrigendum / Clarifications issued till the date of tender opening and as per time schedule given in Tender Document.
2. I / We declare and certify that I / We confirm both Technical and Commercial conditions of the Tender Specification fully.
3. We undertake, in case our bid is accepted, to commence the work from the date of LOA and to complete and deliver the whole of the work and responsibilities comprised in the LOA within ………… (both in figures and words) months calculated from the date of LOA and as per time schedule given in Tender document.
4. We are submitting the Bid Guarantee for a sum of Rs…………., in the form …………………. as instructed by you. This Bid Guarantee shall be governed as per the stipulations provided in the “Instructions to Bidders”.
5. We agree to abide by and keep our Bid valid initially for a period of 8 (eight) months from the date of opening of Bid (by NLC INDIA LIMITED) and it shall remain binding on us and may be accepted at any time before the expiry of that period.
6. Should our Bid be accepted, we hereby agree to abide by and fulfill all Terms and conditions of Tender Document as accepted by us and in default thereof, to forfeit and pay to NLC INDIA LIMITED, or NLCII’s successors, assignees or authorized nominees such sum of money as are
19
stipulated in conditions contained in Tender Documents and agree to furnish Bank Guarantee for Contract Performance as per the proforma prescribed by NLC INDIA LIMITED, and acceptable to NLC INDIA LIMITED, for a sum equal to 10% of the aggregate sum of contract price within 15 days from the date of LOA shall be initially valid for 12 months and shall be extended suitably by the Contractor as per the requirement of the Purchaser.
7. This Bid together with written acceptance thereof shall constitute a binding CONTRACT between NLC INDIA LIMITED, and ourselves.
8. Dated this …………………………. day of ……………………………..
Witness -1: Signature Name in Block Letters Occupation Address
Signature Name in Block Letters
Witness -2: Signature Name in Block Letters Occupation Address
Designation (Company seal)
*****
20
ANNEXURE – B
BID GUARANTEE FORM
NOTE: 1.0 This guarantee shall be furnished by a Nationalised Bank/ Scheduled Bank,
authorised by Reserve Bank of India (except Bank of China) to issue a Bank Guarantee in the same format as given below. NLCIL reserves its rights to reject the Bank Guarantee if the same is not in the specified format.
2.0 The bank guarantee shall be furnished on stamp paper of value not less than Rs 80.00. The stamp paper shall have been purchased in the Name of the Bank executing the Guarantee.
3.0 NLCIL reserves its right to reject the offer of the bidder, if any of the above conditions are not adhered to while furnishing the bid.
Bank Guarantee No…………… Date.: ………………. Ref. Tender No………………………….. To NLC INDIA LIMITED, Block-1, Neyveli – 607 801. Cuddalore District, Tamil Nadu, INDIA. Dear Sirs,
In accordance with your ‘ Invitation to Bid’ under your Tender No.:…………………. dated …………… M/s. ………………………….. hereinafter called the Bidder, having its Registered Office/ Head Office at ………………………. with the following Directors on their Board of Directors / partners of the firm. 1 …………………………… 2 …………………………… 3 …………………………… 4 …………………………… 5 …………………………… 6 …………………………… 7 …………………………… 8 …………………………… 9 …………………………… 10 …………………………… wish to participate in the said bid for ……………………… As an irrevocable Bank Guarantee against Bid Guarantee for a sum of INR……………………. (in words and figures) valid for 10 months from …………………….. (the date of bid opening) is required to be submitted by the Bidders as a condition precedent for participation in the said bid, which amount is liable to be forfeited on the happening of any contingencies mentioned in the bid documents. We the …………………. Bank at …………………….. having our Head Office at ………………….. (local address) guarantee and undertake to pay immediately on demand by NLC INDIA LIMITED, INDIA LIMITED, stating that
21
a the bid has been unilaterally revoked / revised / modified / withdrawn before expiry of bid validity period, by the Bidder(s) ; or
b. The price(s) have been unilaterally increased or altered after the bid opening and during validity of the offer, by the Bidder; or
c. On issue of LOA by NLC INDIA LIMITED, to the bidder, the bidder has omitted or refused to accept the said LOA within the stated period; or
d. the Bidder, after issue of LOA, omitted or failed to submit Contract Performance Guarantee within the specified period,
the amount of ……………..to the said NLC INDIA LIMITED, without any reservation, protest, demur and recourse. Any such demand by the NLC INDIA LIMITED, shall be conclusive and binding on the bank irrespective of any dispute or difference raised by the Bidder. The guarantee shall be irrevocable and shall remain valid upto …………………… If any further extension of this guarantee is required the same shall be extended to such required period (not exceeding one year) on receiving instruction from M/s. ………………………….. on whose behalf this guarantee is issued. Notwithstanding anything contained herein:
a. our liability under this bank guarantee shall not exceed ………… (in words) b. this bank guarantee shall be valid upto ……………..; and c. we are liable to pay the guaranteed amount or any part thereof under this bank
guarantee only and only if you serve upon us a written claim or demand on or before ………………
In witness where of the Bank, through its authorized officer has set its hand and stamp on this………..day of …………20…...at……………….. WITNESS (Signature) 1. Signature
Name in Block letters Occupation Address
Name in Block Letters Designation
2. Signature Name in Block letters Occupation Address
Staff code No. (Bank’s seal) Attorney as per Power of Attorney No……….. Dated…………….
*******
22
ANNEXURE – C
LETTER OF UNDERTAKING FORMAT From: (Name & Address of Bidder) ….…………………………… ………………………………. ………………………………. SUB: Tender for (Name of the work to be filled up) ___________________ – Reg.
REF: Tender No. _____________________________________________
1. With reference to the aforesaid tender for (Name of the work to be filled up)
_______________________, I/we, ____________________ Ltd., (Name of the Bidder) having our Registered Office at ____________________ ________________________ hereby give the following declarations and undertaking.
2. I/We have read and understood all the terms and conditions of the tender and hereby
agree and undertake to confirm all the Technical & Commercial conditions of this tender without any deviation.
3. I/We hereby agree and undertake that NLC India Limited, shall have the right to reject the
offer and take penal action against us, if any deviation is noticed during evaluation of the tender in contradictory to this letter of undertaking.
4. The information and documents provided by us are correct and authentic to the best of our
knowledge. 5. I/We attached the duly filled in Check list for Compliance of Tender Conditions.
Encl.: Check List.
Authorized Signature
Name Designation
Company Seal. Company
Date
*******
23
Check list for Compliance of Important Tender Conditions
(to be attached with the Letter of Undertaking)
Bidders to submit their bid, accepting all the terms and conditions of the Tender and the required /relevant documents wherever required, as per the formats given below: BID GUARANTEE:
Sl. No. Description
Acknowledgement for enclosing as per NIT
(Please tick) Details if Yes
1. Bid Guarantee Yes No
Bid Guarantee Cost : Bank : BG/DD No. : Validity :
2. Bid Validity as in NIT Yes No Date:
3. Price Favorableness Certificate (as per note below)
Yes No
NOTE: The Bidder is requested to confirm and certify that the prices quoted in their offer are not less favorable to NLCIL than those quoted to any other Public Sector Undertaking (PSU) / Government Department and benefit of lower prices if any during the currency of the order if placed on the Bidder have to be extended to NLCIL as well.
Authorized Signature
Name Designation
Company Seal. Company
Date
*******
24
ANNEXURE – D Questionnaire on Commercial points to be answered by the Bidder.
1.0 BIDDER DETAILS: 1.1.0 Full Particulars of the Bidder 1.1.1 Name & Address 1.1.2 Tel.Ph.No.
Mobile No.
1.1.3 Fax No. 1.1.4 Banker’s name, address & Fax No.
For the purpose of e-payment following shall be provided. i. Name of the beneficiary ii. Bank A/c. No. iii. Name of the Bank iv. Name of the Branch v. Branch code No. vi. IFSC Code (For NEFT / RTGS Payment) vii. PAN No
2.0 BID GUARANTEE 2.1 Whether bid guarantee is furnished. 2.2 Value of Bid Guarantee 2.3 Expiry date of bid guarantee 2.4 Value of the stamp paper 2.5 Whether stamp paper purchased in the name of bank 2.6 Name and address of the Bankers Fax No. and E Mail address 3.0 SCOPE OF WORK Whether the bid covers the entire scope of work as detailed in
the tender Specification
4.0 PRICES: Whether the prices are furnished in the prescribed price
schedule
Signature : Name : Designation : Company :
Company Seal. Date :
25
ANNEXURE – E
Form of Bid
(To be submitted by the Bidder in Cover – II with Price Bid) NLC INDIA LIMITED’s Tender No: ……………………… Dated: …………… Bid No. From
To Chief General Manager / Contracts, Corporate Office, NLC INDIA LIMITED, Neyveli – 607 801,Cuddalore Dist., Tamil Nadu, INDIA.
1. I/We, the undersigned have carefully examined and understood the Bidding Documents
including the amendments / errata / Corrigendum / Clarifications issued till the date of tender opening. I / We hereby agree to carry out the entire works as described in the specifications in conformity with the specifications and Bidding documents, as per prices quoted by us in the Schedule of Prices.
2. In the event of our proposal being accepted, we agree to furnish a Bank Guarantee for Contract Performance as per the proforma prescribed by NLC INDIA LIMITED, and acceptable to the NLC INDIA LIMITED, and for the sum equal to 10% of the aggregate sum of contract price within 15 days from the date of LOA shall be initially valid for 8 months and shall be extended suitably by the Contractor as per the requirement of the Purchaser. The Bid Guarantee shall be released only after the Contract Performance Guarantee issued in favour of NLC INDIA LIMITED, is received and accepted by the NLC INDIA LIMITED,.
Signed this ………….. day of ………….. 200 ………………..
Witness -1: Signature Name in Block Letters Occupation Address
Signature Name in Block Letters
Witness -2: Signature Name in Block Letters Occupation Address
DESIGNATION (Company seal)
*******
26
ANNEXURE – F SCHEDULE OF PRICES
GENERAL INSTRUCTIONS 1.0 The prices quoted in this schedule shall cover the entire scope of services in accordance
with requirement of the work. 2.0 In addition to this price schedule, the Bidder should also enclose the Bid Form in Cover-II
(as per Specimen form in Annexure -E) 3.0 The rates quoted shall be on firm and fixed price basis only. 4.0 All the Sl. Nos. and columns of `Schedule of Prices' shall be filled up both in figures as
well as in words. If there is any discrepancy between the amount quoted in words and figures, the amount quoted in words will be considered. All the Sl. Nos. and columns in the `Schedule of Prices' shall be quoted. If no prices is envisaged for any of the entries, the words `Nil’ shall be mentioned.
5.0 ‘Schedule of Prices’ shall be signed by the Bidder. Overtyping and corrections shall be avoided, and if it appears the same should be duly authenticated. The terms, such as ‘not applicable’, ‘if applicable’, ‘included’, ‘included above’, ‘included in’ ‘------‘ or blank shall not be used.
Item No Activity Prices in
Rupees A Lumpsum and Firm Price Basis for conducting due diligence on
legal, tax advisory and financial consultancy on master project agreement for setting up of a Pilot Scale Plant on Matmor process at Neyveli for the entire Scope of work covered in Section – C, including out of pocket expenses such as Travel and Living Expenses, Computer & photocopying Charges etc.
B Service Tax on ceiling basis ( %)
C TOTAL (A+B)
Total Lump Sum price ..………… ( in words……………….. only )
NOTE: Bidder to indicate Service Tax including applicable cess and the rate considered under B above.
SEAL SIGNATURE :
NAME : DESIGNATION : COMPANY :
DATE :
*****
27
SECTION - G FORMAT OF CONTRACT AGREEMENT
CONTRACT AGREEMENT
To be executed on Rs.20 stamp paper Contract No------------------------------------------------- Dated: -------- 1.0 The Contract made this.................................day of .........................in the year 2017
between the NLC India Limited having their Registered Office at First Floor, No.8, Mayor Sathiyamurthy Road, FSD, Egmore Complex, Chetpet, Chennai- 600 031 Tamil Nadu, India hereinafter called the "CLIENT" and M/s . . . . . . . . . . . having the registered office at .......................... hereinafter called the "CONSULTANT" for preparation of due diligence Report on legal, tax advisory and financial consultancy on master project agreement for setting up of a Pilot Scale Plant on Matmor process at Neyveli in accordance with the CLIENT's Tender No.………………, Dt…………and the Consultant's offer No. ......... Dt......., Schedule of References containing the minutes of the meeting and the other correspondences exchanged between the CLIENT and the Consultant and Letter of Award No. …………….. Dt......... forming part of this agreement and is registered as Contract No. …………… Dt. …………….
2.0 It is further to confirm the acceptance of the Bid proposal as notified by the CLIENT’s
Letter of Award No: . . . . . . . . . . . . . . . Dt. . . . . . . . . . . and the CONSULTANT’s acceptance vide letter of No: . . . . . . . . . . . . . . . Dt. . . . . . .
3.0 The CLIENT has accepted the proposal of the Consultant with such changes/modifications
mutually agreed to through exchange of correspondence and minutes of the meeting for preparation of due diligence Report on legal, tax advisory and financial consultancy on master project agreement for setting up of a Pilot Scale Plant on Matmor process at Neyveli.
4.0 In view of the foregoing, the CLIENT and Consultant have agreed as follows: 4.1 The Consultant hereby agrees to execute the Contract in conformity with the provisions
contained in the Contract documents which shall mean and inclusive of the following documents and form part of this Contract:
i. Contract agreement ii. Section A Schedule of References iii. Section B Commercial Conditions of Contract iv. Section C Scope of work 4.2 The Consultant also agrees to complete the Contract in full as per the Time Schedule
indicated in Clause 3.0 in SECTION-B. 4.3 The CLIENT hereby agrees to pay the Consultant on due performance of the `Contract' a
price of Rs...............(Rupees.............. only) in the manner and in accordance with Terms and Conditions specified in the "Contract".
28
5.0 In witness whereof the parties hereto have hereunder affixed their signatures, on the day, month and year written as above.
CONSULTANT CLIENT Printed name Printed name Designation Designation Address Address Office Seal Office Seal WITNESS-1 WITNESS-1 (Signature) (Signature) (Name in Block Letters) (Name in Block Letters) Official Address : Official Address : WITNESS-2 WITNESS-2 (Signature) (Signature) (Name in Block Letters) (Name in Block Letters) Official Address : Official Address :
*****
29
SECTION – H
Format of Non disclosure Agreements
This NON-DISCLOSURE AGREEMENT is made at....... on this_____ day of ______________ 2017
BETWEEN
M/s ............, having its registered office at ..................(hereinafter referred to as “CONSULTANT” or “Party of the First Part”, which expression shall, unless repugnant to the context or meaning thereof, include its successors, executors, administrators, representatives and permitted assignees.
AND
1. M/S NLC INDIA LIMITED (formerly known as M/s. Neyveli Lignite Corporation Limited), a ‘Navratna’ Company incorporated under the provisions of the Companies Act, 1956 and having its registered Office at. . First Floor, No. 8, Mayor Sathyamoorthy Road, FSD, Egmore Complex, Chetpet Chennai- 31, Tamil Nadu, India, under the administrative control of the Ministry of Coal, Government of India (hereinafter referred to as “NLCI” or “Party of Second Part No.1”, ), (which term shall mean and include all its executors, nominees, successors and assignees. 2. M/s NMDC Limited, a public limited company incorporated within the meaning of the Companies Act (India) 1956, having its registered office at Khanij Bhavan, 10-3-311/A, Castle Hills, Masab Tank, Hyderabad 500028 (hereinafter referred to as “NMDC” or “Party of Second Part No -2”, which expression shall, unless repugnant to the context or meaning thereof, include its successors, executors, administrators, representatives and permitted assignees.
3. M/s ENVIRONMENTAL CLEAN TECHNOLOGIES LIMITED (Australian Company Number 009 120 405) a public company listed on the Australian exchange, having its office at suite no 502, 9 Yarra street, south Yarra VIC 3141 Australia (ECT) represented by Ashley Moore, capacity as Managing Director and he being duly authorized thereto (hereinafter referred to as “ECT” or “Party of the Second Part No. 3” (which term shall mean and include all its executors, nominees, successors and assignees); and all parties together called as,
THE PARTIES OF THE SECOND PART
The party of first part viz. “CONSULTANT” and the parties of the second Part viz “NLCI”, “NMDC” and “ECT” shall hereinafter be individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, the party of the first part viz. “CONSULTANT” M/s ..........., is a Consultant doing consultancy service for conducting due diligence on Legal, Tax Advisor and Financial on the Master Project agreement and has participated in the Limited Tender Enquiry issued by Party of the Second Part No. 1, “NLCI” and selected as CONSULTANT by issuing a Letter of Award by “NLCI” on ...............for conducting Due Diligence on Legal, Tax Advisor and Financial on the Master Project agreement more fully described in the said LOA for setting up of a Pilot Scale Plant on Matmor Process at Neyveli.
30
WHEREAS, Party of the Second Part No. 1, “NLCI” a Navratna Government of India enterprise is government-owned lignite mining and power generating company in India, under the aegis of Ministry of Coal. NLCI operates the largest open cast lignite mines in India and desires to expand its business into production of dried pellets with in co-operation with ECT and NMDC, in addition to utilize the lignite as reducing agent in iron reduction process called MATMOR process.
WHEREAS, Party of the Second Part No.2, “NMDC” is India’s largest iron ore mining company and has an interest to develop technologies like MATMOR that generate value from its non-conventional iron reserves, for example, low-grade iron ore fines, blue dust and slimes.
WHEREAS, Party of the Second Part No. 3, “ECT” and its subsidiaries are the owners of technology for processing and drying lignite/brown coal known as the coldry technology. The main business of is to license its newly product for building commercial relationship by commissioning processing plants worldwide. ECT has already conducted laboratory scale testing of lignite and hence claims that lignite has in principle been found suitable for producing pellets and also in iron reduction process (MATMOR).
WHEREAS, on 19 January 2016, the Parties of the Second Part have entered in to a Tripartite Collaboration Agreement to jointly explore the feasibility of a pilot scale research and development integrated plant for COLDRY - MATMOR for the production of value added product using lignite and iron ore. Accordingly, based on the feasibility study report dated 30-06-2016 from ECT and after exploratory discussions between the Parties of the Second Part, it was agreed by the parties to go in for a pilot plant to prove the Technology by entering in to a Master Project Agreement for setting up of a Pilot Scale Plant on Matmor Process at Neyveli.
WHEREAS, while entering in to a Master Project Agreement between the Parties of the Second Part, many issues with regard to the funding by CCD Mode, SPV Legal structure formation, Tax Advisory, Financial Consultancy, etc have been emerged out and in order to get a clear idea and clarity between the parties in the above issues, it was decided to obtain an expert opinion for the above issues by fixing up a Consultancy Agent through LTE mode by NLCI. Accordingly, a LTE was issued by NLCI on ....... to various qualified Consultancies inviting their BIDS.
WHEREAS, the “CONSULTANT” , who has participated in the LTE after submitting their bid has selected as CONSULTANT by NLCI for the process of due diligence work for the scope of work in the above said LTE and a Letter of Award is issued on ....for the above work. For such works, the CONSULTANT have to get various details and information from the Parties of the Second Part,. Accordingly, the Parties of the Second Part, will also have to disclose proprietary information to the “CONSULTANT” and also among themselves. Therefore, in order to protect each party’s confidential and proprietary information already released to the other party and information still to be released to the other party for conducting such due diligence study on legal, Tax & finance issues of the Master Project Agreement, the party of the first part and the parties of the second part to this agreement have agreed to execute this Non-Disclosure Agreement, as envisaged in the said LTE.
WHEREAS the Parties of the Second Part, possess proprietary data and information that may include scientific and technical knowledge, undisclosed inventions, plant designs, plant operating data and information, process descriptions and process operating specifications, equipment design specifications, flow diagrams, instrument- and control diagrams, design and operating experience, market intelligence, chemical samples and specimens of materials of a
31
secret and confidential nature relating to the Field, all of which are regarded by them as valuable commercial assets of a highly confidential nature. During the course of due diligence study on finance & legal issues of the Master Project Agreement by the “CONSULTANT” and the Party of the First Part and the Parties of the Second Part, may receive, observe or otherwise have access to information, whether inside or outside the Field, that
(a) relates to the Disclosing Party’s past, present or future research, development, business activities, products, services, intellectual property and technical knowledge, and
(b) either has been identified in writing as confidential or is of such a nature (or has been disclosed in such a way) that it would be obvious to a reasonable person in a similar position that it could be claimed as confidential, (i.e. “Confidential Information”).
As used herein, the party disclosing Confidential Information is referred to as “the Disclosing Party” and the party receiving the Confidential Information is referred to as “the Recipient”.
The reasons for, and nature of, discussions, meetings, exchanges of information and related activities prompting this agreement are as follows: to explore the feasibility of, and the appropriate technology for, the manufacture of pellets from NLC’s lignite using Coldry technology using screening system, extrusion system, fixed bed reactors, water recovery system and product collection. (“The Field”);
NOW THEREFORE, all the parties viz “CONSULTANT” and “NLCI”, “NMDC”, “ECT” hereby agree as follows in order to maintain the confidential information: 1. USE OF CONFIDENTIAL INFORMATION
1.1 Confidential Information of the Disclosing Party may be used by the Recipient only in connection with the purpose(s) set forth in this agreement. The parties agree to protect the confidentiality of each other's Confidential Information in the same manner they protect the confidentiality of their own proprietary and confidential information of like kind, but in any case using reasonable care.
1.2 Except as necessary for the purpose(s) set forth in this agreement, Confidential Information of the Disclosing Party may not be copied or reproduced by the Recipient without the Disclosing Party's prior written consent.
1.3 Each party shall in all events remain free to use in the course of its business its general knowledge, skills and experience incurred before, during or after the activities hereunder. To this end, it is also recorded that nothing in this agreement shall be construed as constituting an exclusive arrangement between the parties and both parties shall remain free to explore market opportunities in the Field, unless otherwise agreed to in writing in a subsequent agreement.
1.4 With respect to the purpose(s) set forth in this agreement, neither party is authorized to use the name, logo or trademarks of the other in connection with any advertising, publicity or marketing or promotional materials or activities without the prior written consent of the other party. The Disclosing Party provides the Confidential Information "as is".
1.5 The parties shall: 1.5.1 treat as strictly confidential any and all Confidential Information given or made
known to them arising from this association;
32
1.5.2 keep all such Confidential Information obtained secret towards third parties and only use it in co-operation with each other for the purpose expressly agreed upon by the parties and to disclose same to their employees only on the basis of the need to know;
1.5.3 accept responsibility for the observance of this secrecy agreement by their employees;
1.5.4 if reasonably required by either party, cause all of their employees who are directly or indirectly given access to the said proprietary and Confidential Information to execute secrecy undertakings in a form acceptable to the parties in order to protect the parties against the unauthorised disclosure of such Confidential Information to any third party and to fully co-operate in the enforcement of such secrecy undertakings. 2. OWNERSHIP OF CONFIDENTIAL INFORMATION
2.1 Confidential Information disclosed under this agreement shall at all times remain the property of the Disclosing Party. No license or other rights in or to the material disclosed, is granted by this agreement or any disclosure of Confidential Information under this agreement except as provided herein. All Confidential Information made available under this agreement, including copies thereof, shall be returned to the Disclosing Party (or, upon such party's request or consent, destroyed) upon the first to occur of:
2.1.1 completion of the purpose(s) set forth in this agreement; or 2.1.2 the reasonable request of the Disclosing Party; 2.1.3 the termination of this agreement in terms of the provisions of this agreement
specifically allowing for such termination. 2.2 Disclosure of Confidential Information shall not constitute any representation,
warranty, assurance, guarantee or inducement by the Disclosing Party with respect to infringement of patents or other rights of third parties. No warranty or representation as to the accuracy, completeness, or technical or scientific quality of any Confidential Information is provided herein. Without restricting the generality of the aforegoing, neither party makes any representation or warranty as to the merchantability or fitness for a particular purpose of any Confidential Information disclosed hereunder. 3. EXCLUSIONS
Nothing in this agreement shall prohibit or limit either party's use of information (including, but not limited to, ideas, concepts, know-how, techniques and methodologies):
3.1 which at the time of disclosure is published or otherwise generally available to the public;
3.2 which after disclosure by the Disclosing Party is published or becomes generally available to the public, otherwise than through any act or omission on the part of the Recipient;
3.3 which the parties can show was in their possession at the time of disclosure and which was not acquired directly or indirectly from each other;
3.4 rightfully acquired from others who did not obtain it under pledge of secrecy to either of the parties;
3.5 which the Recipient is obliged to disclose in terms of an order of court, subpoena or other legal process.
In the event that either party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, the Recipient shall promptly notify the Disclosing Party thereof.
33
4. BREACH It is acknowledged that the breach of this agreement by the Recipient would cause the
Disclosing Party irreparable injury or damage not compensable in monetary damages alone. Accordingly, in the event of a breach, or a threat of a breach, the Disclosing Party, in addition to its other remedies, is entitled to a restraining order, preliminary injunction or similar relief so as to specifically enforce the terms of this agreement or prevent, cure or reduce the adverse effects of the breach or an impending breach.
5. COMMENCEMENT AND DURATION AND TERMINATION 5.1 This agreement shall operate as from the date of signature hereof and shall
remain for a period of 5 (five) years, from the date of issue of LOA, unless terminated prior thereto in the following manner:-
a. by mutual written consent between the parties, or b. superseded by another written agreement between the parties in the Field, or c. by concluding the purpose(s) envisaged by this agreement, for example concluding the feasibility studies on making dried pellets from lignite , or d. by giving three months’ written notice to the other party.
5.2 In the event of termination of this agreement for whatever reason, either prior to or at the time of expiry of the period mentioned in clause 5.1. above, the parties agree that after 5 (five) years from the date of such termination or expiry, they shall each be relieved from all obligations under this agreement including the non-circumvention provisions of clause 9. 6. GOVERNING LAW
This agreement shall be governed, construed and enforced in accordance with and governed by the laws of the Republic of India and the relevant courts of Chennai, India, shall alone have exclusive jurisdiction over all matters arising out of or from this agreement pertaining to disputes related to the Confidential Information of NLC. This agreement shall be governed, construed and enforced in accordance with and governed by the laws acceptable by all parties.shall have exclusive jurisdiction over all matters arising out of or from this agreement pertaining to disputes related to the Confidential Information of ECT. 7. ENTIRE AGREEMENT
This agreement is the only and exclusive agreement between the parties with respect to the subject matter of this agreement, and it supersedes all prior or contemporaneous representations, promises, inducements, proposals, discussions and other communications. 8. GENERAL PROVISIONS
No furnishing of Confidential Information and no obligation hereunder shall be construed to obligate either party to:
8.1.1 enter into any further agreement or negotiation with, or make any further disclosure to, the other party; nor shall it
8.1.2 prevent either party from entering into any agreement or negotiation with any other third party regarding similar subject matter or any other subject matter; nor shall it
8.1.3 prevent either party from pursuing its business in whatever manner it elects even if this involves competing with the other party.
Any Confidential Information containing estimates or forecasts shall not constitute binding commitments. Neither party shall directly or indirectly use in an identical or modified form any Confidential Information obtained from the other to its, or a third party's, competitive advantage.
34
8.2 No public announcement or disclosure beyond those disclosures authorised for Confidential Information hereunder may be made by either party concerning this agreement without the prior written approval of the other party.
8.3 If any clause or term of this agreement should be invalid, unenforceable or illegal, then the remaining terms and provisions of this agreement shall be deemed to be severable there from and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this agreement.
9. NON-CIRCUMVENTION PROVISIONS 9.1 For a period of 5 (five) years from the date of issue of LOA, the parties agree to
refrain from contacting, dealing with, soliciting business and/or contracts from or becoming involved with in any way, sources that are not their own and which have been made available to them pursuant to this agreement, without the express written permission of the party who made the original introduction. The parties, including their affiliates, subsidiaries, partners, consultants and agents will maintain complete confidentiality regarding such business sources and will only disclose such business sources to third parties under mutual agreement and only after written permission has been received from the originator of the source.
9.2 The parties hereby agree not to circumvent or attempt to circumvent each other and not to circumvent any party who is, or may be, associated directly or indirectly with the business opportunity that is the subject of the exchanges of Confidential Information between them.
9.3 The parties will each take the necessary steps to ensure that their respective affiliates, subsidiaries, partners, consultants and agents adhere to this clause 9 (non-circumvention). 10. COST AND EXPENSES
Neither party has any financial commitment to the other party, except to the extent of liability on the part of the party who commits a breach of this agreement.
IN WITNESS whereof the parties hereto through their authorised representatives have executed this agreement as of the date indicated above in the preamble of this agreement.
The Party Of The First Part, “Consultant”- M/s.
The Parties Of The Second Part No-1 -M/S NLC INDIA LIMITED No-2- M/s NMDC Limited No.3. M/S Environmental Clean Technologies Limited
WITNESS : 1. 2.
WITNESS : 1. 2.
35
SECTION-B
COMMERCIAL CONDITIONS OF CONTRACT
36
SECTION - B
COMMERCIAL CONDITIONS OF CONTRACT INDEX
CL. NO.
CONTENTS Page No
1.1 Definitions 2.0 Scope of Work 2.1 Contract Price 3.0 Time Schedule 4.0 Deliverables 5.0 Deficiency in Performance 5.1 Grant of Extension of Time 6.0 Bank Guarantee (General) 6.6 Contract Performance Guarantee 7.0 Payment Terms 8.0 Documents to be furnished for claiming payment 9.0 Insurance 10.0 Work and safety regulations 11.0 Labour Laws 12.0 Facilities 13.0 Secrecy 14.0 Limitations of liabilities and responsibilities 15.0 Technical Soundness 16.0 Force Majeure 17.0 Disputes 18.0 Resolution of Disputes 18.3 Arbitration of Disputes 19.0 Termination 20.0 Fore Closure of Contract 21.0 Language 22.0 Additional Services 23.0 Assignment 24.0 Return of Documents 25.0 Indemnity 26.0 Ownership of Documents 27.0 Approvals 28.0 Effective date of contract 29.0 Defects in consultant’s work 30.0 Deletion 31.0 Jurisdiction of Contract 32.0 Correspondence 33.0 Number of Visits by the Consultant
37
SECTION-B COMMERCIAL CONDITIONS OF THE CONTRACT
1.0 DEFINITIONS 1.1 ‘NLCIL’ shall mean the owner viz. M/s NLC India Limited, Neyveli-1, a Government of
India Enterprise. 1.2 ‘Client/CLIENT’ shall mean the owner viz. M/s NLC India Limited, Neyveli-1, a
Government of India, Public Sector Navratna Enterprise. 1.3 ‘Consultant’ shall mean the successful bidder selected based on this tender. 1.4 ‘Bidder’ shall mean the firm/party who quotes against this enquiry. 1.5 ‘Tender’ shall mean the Invitation to Bid issued by the NLCIL together with the
Commercial Conditions of Contract, Scope of Work, howsoever called and shall include, Annexures, Formats and attachments thereto, as also any and all Amendments/ Corrigendum/ Errata/ Clarifications issued by the Client till the Bid opening date.
2.0 SCOPE OF WORK:
The scope of work is indicated in Section – C.
2.1 CONTRACT PRICE: 2.1.1 The Consultancy fees i.e. the Contract Price for conducting due diligence on legal, tax
advisory and financial consultancy on master project agreement for setting up of a Pilot Scale Plant on Matmor process at Neyveli for the entire scope of work including out of Pocket Expenses Travel and Living Expenses, Computer and photocopying expenses, etc.
2.1.2 The total Contract price payable by the CLIENT shall remain firm and fixed till fulfillment of
all the obligations under this Contract.
NOTE: The finalized contract price will be included here while signing the contract agreement.
3.0 TIME SCHEDULE
The Scope of consultancy services, covered under this work shall be performed as per the time schedule given below.
Sl. No. Description Time Line
1 Submission of draft report Within 4 weeks from the date of issue of LOA.
38
2 Giving presentation to NLCIL & NMDC Within 5 – 6 week from the date of issue of LOA.
3 Final report submission with incorporating remarks given from NLCIL & NMDC
Within 7 – 8 week from the date of issue of LOA.
4.0 DELIVERABLES 4.1 The Consultant shall prepare and submit to the Client both in soft and hard form, the
following: (a) Six (6) copies of Draft report .
(b) Fifteen (15) copies of Final Report. 5.0 DEFICIENCY IN PERFORMANCE:
i) The time stipulated for the preparation and submission of final report shall be deemed to be the essence of the contract. In the event of the Consultant failing to complete the above said work within the time specified in the Clause 3.0 of Section-B, due to the reasons attributable to the Consultant, NLCIL shall deduct towards damage at the rate of half percent per week of delay or part thereof of Contract price subject to a maximum of 5% (five Percent) of the Contract price.
ii) If the reason for the delay is solely attributable to NLCIL, adequate time extension
will be given to the Consultant to the extent of delay attributable to NLCIL.
iii) If the reason for the delay is purely attributable to the Consultant, extension of time may be granted subject to levy of Liquidated Damages.
5.1 Grant of Extension of Time: 5.1.1 Time extension may be granted only on bonafide request and not in a routine manner. 5.1.2 If the Client has caused delays in meeting his obligations, the extension of time shall be
granted to the extent of time suffered and secure the contract and its performance by shifting the right to levy damage for “Liquidated Damages” for the delays beyond the extended date.
5.1.3 Request for extension of time shall be submitted by the CONSULTANT in writing and the
CLIENT, based on the merit, shall consider the request and convey his decision to the CONSULTANT in writing within a reasonable time. Such extension shall not release the Consultant of any of his obligations including “Liquidated Damages”.
6.0 BANK GUARANTEES (GENERAL) 6.1 All the bank guarantees shall be irrevocable. The Bank Guarantees shall be from any
Nationalised Bank or a Scheduled bank in India (other than the Bank of China) authorized by Reserve Bank of India to issue such Bank Guarantee. Except Bid Guarantee, all Bank
39
Guarantees are to be furnished directly by the Banker to NLCIL by RPAD/Courier to the following address:
The Chief General Manager/Contracts, Corporate Office,
NLC India Limited, Neyveli - 607 801,Cuddalore District, Tamil Nadu, INDIA. 6.2 The bank guarantee shall be furnished as per respective formats prescribed by the Client
and shall be submitted on Non-judicial stamp paper of value Rs.80/- and the stamp paper shall be in the name of the bank.
6.3 All the Bank Guarantees shall be payable on first demand, without demur, irrespective of
any dispute between the Bank and the Bidders / Consultant, to the Client without any condition or dispute whatsoever.
6.4 The Bidder / Consultant shall arrange to keep the several Bank Guarantees referred to
herein valid for the requisite duration by making timely request to banks or Bank concerned. All the extension for Bank Guarantees also shall be on non-judicial stamp paper of value Rs.80/- obtained in the name of the Bank. All charges connected with the Bank Guarantees shall be to the account of the Bidder / Consultant.
6.5 No interest shall be payable by the Client on the Bank Guarantee or on any part of the
Bank Guarantee encashed. The Client shall have the right to encash the Bank Guarantees for non-compliance of any or all the terms and conditions of the contract.
6.6 CONTRACT PERFORMANCE GUARANTEE (CPG) 6.6.1 The Successful Bidder shall furnish a Contract Performance Guarantee in the form of
Bank Guarantee acceptable to the CLIENT, as per the format (Annexure – I of this Section) enclosed within 15 days from the date of issue of LOA for an amount equal to 10% of the total value of the contract price towards faithful execution of the contract valid up to 3 months from the date of submission of 15 copies of the final report along with other deliverables and acceptance by the Client. The guarantee amount shall, merely on demand, be payable without any previous notice and without any demur and with out referring to any other source irrespective of any legal dispute between bank and Consultant and the Client without any condition or dispute whatsoever.
6.6.2 Without prejudice to the generality of the terms of the Contract Performance Guarantee
the CLIENT shall have the right to encash the Contract Performance Guarantee in full or Part for noncompliance of any or all the terms and for recoveries under the contract as well as against defects in work carried out. In the event of invoking the encashment of CPG partially by NLCIL, the consultant shall keep the CPG valid for the balance amount till the end of the period specified in the Contract.
40
7.0 PAYMENT TERMS 7.1 All payments shall be made in Indian Rupees. 7.1.1 All the payments shall be made subject to acceptance of LOA by the Consultant and
submission of CPG (as per Clause 6.6) by the Consultant and acceptance of the same by the CLIENT.
7.2 Payment of contract price:
Sl. No. Description
1 30% of lumpsum indicated at Item No. A under Schedule of Prices shall be made on acceptance of draft report.
2 30% of lumpsum indicated at Item No. A under Schedule of Prices shall be made on completion of presentation draft report to NLCIL & NMDC.
3 30% of lumpsum indicated at Item No. A under Schedule of Prices shall be made on acceptance Final report with incorporating of remarks given from NLCIL & NMDC.
4. Balance 10% (final Payment) shall be made on completion of all Contractual obligations.
7.3 Mode of Payment:
7.3.1 The payment for services shall be made direct to the Consultant by the CLIENT through e-payment.
7.3.2 It is expressly understood that the release of payment to the Consultant should submit the consent in a mandate form for receipt of payment through NEFT and provide the details of bank A/c in line with RBI guidelines for the same. These details will include bank name, branch name & address, A/c type, bank A/c no., bank and branch code as appearing on MICR cheque issued by bank. Further, the Consultant should also submit certificate from their bank certifying the correctness of all above mentioned information in the mandate form.
7.4 All Bank Charges shall be to the account of Consultant only. 7.5 Due Dates for Payment: 7.5.1 The CLIENT will make progressive payment as and when the payment is due as per the
terms of payment set forth above. Payment will become due and payable by the CLIENT within a reasonable period which will not exceed fifteen (15) days from the date of receipt of Consultant's bill/invoice/debit note by the CLIENT, provided the documents submitted are complete and correct in all respects. If it is not payable the invoice will be returned to the Consultant stating the reasons for rejection within a seven (7) Days from the date of receipt by the CLIENT.
41
7.6 Taxes & Duties/ Service Tax/ Personnel Income Tax Etc. 7.6.1 All taxes and duties, Income Tax, personal Income Tax, CESS or any other statutory
levies payable in India except service tax arising out of this Contract shall be included in the prices and shall be borne and paid by the Consultant. No claim will be entertained by the CLIENT whatsoever on these accounts. Income tax TDS shall be recovered at the rate applicable on the date of payment. The bidder shall furnish the PAN details in offer.
7.6.2 Service Tax:
a. The Service Tax shall be claimed by the Consultant subject to the ceiling indicated in the schedule of price against submission of Invoices/Bills containing all details viz. (a) Name of the registered person / Company / Firm, (b) Address, (c) Service Tax Registration Number, (d) Description of the taxable service (e) Classification of the taxable service (f) Value of the taxable service and (g) Service Tax charged – separately indicating the education cess and the SHE cess by the Consultant subject to the following conditions.
i. Submission of service tax registration certificate. ii. The Consultant has to certify that in the previous year value of the service rendered by
them was not less than Rupees ten lakhs. b. The Service tax ceiling indicated in the price schedule is as per the rates prevailing on the
first working day of the calendar month, one month prior to the original scheduled date of opening of tender (Part-I). Any variation in the percentage of service tax within the contact period with respect to the ceiling will be to NLCIL's account and any new indirect taxes imposed by State/Central Governments within the contract period shall be payable extra by NLCIL against documentary evidence produced by the Consultant.
8.0 DOCUMENTS TO BE FURNISHED FOR CLAIMING PAYMENT 8.1 The following documents shall be sent to the General Manager/ CARD, NLC India Limited,
Neyveli - 607 807 for effecting payments Invoices - original + 2 copies Report as per clause 4.0 above 9.0 INSURANCE Insurance cover for the equipment deployed, if any and men employed shall be the
responsibility of the Consultant. Failure to take insurance shall attract penal recovery from the Consultant as deemed fit and as decided by the Client.
42
10.0 WORK AND SAFETY REGULATIONS:
The Consultant shall ensure the safety of all the workmen, materials and equipment either belonging to him or to others working in respect of this assignment. The Consultant shall be responsible for provision of all safety notices and safety measures required both by the relevant legislation and the Client as it may deem necessary.
11.0 LABOUR LAWS
The Consultant shall abide by all relevant Labour Laws like Workmen Compensation Act etc.
12.0 FACILITIES CLIENT shall provide documents, data and information necessary to the extent possible.
The Consultant shall arrange at his cost for accommodation and local transport in and around the project site for all the personnel engaged for this work. CLIENT shall not provide any residential accommodation to the Consultant.
13.0 SECRECY 13.1 The technical data, information, drawings, Specifications and other related documents and
such of those materials prepared by or made available to the Consultant during the execution of this contract shall not be used for any other purpose.
13.2 The technical data, information, drawing, Specifications and other related documents shall
not be divulged and or disclosed to a third party or used for any other purposes whatsoever without Client’s previous consent in writing, except to the extent required for the execution of this contract.
13.3 Provisions of these clauses shall not be applicable for those information, which are in
public domain or already in possession of the Consultant or independently developed by the Consultant or obtained by the Consultant from any third party.
14.0 LIMITATIONS OF LIABILITIES AND RESPONSIBILITIES: 14.1 The Consultant shall carry out the services under the LOA with due care and attention.
The Consultant shall be responsible for the services rendered and of final reports. 14.2 In the event of any deficiency in these services, Consultant shall interalia promptly redo
such services at no additional cost to the Client. 14.3 The Consultant shall not be liable to Client for any and all warranties, direct or
consequential damages, losses and expenses sustained or claims incurred by Client or third parties by reason of any act or omission of the Consultant or any of their employees
43
in performing the consulting services. Excluding any further rights and claims, the Consultant, however, shall be liable to the Client to the following extent.
14.3.1 If the conduct of the consultant and its personnel is considered by the Client to be
prejudicial to their interests, the Contract is liable for termination. 14.3.2 The Consultant at no additional cost to the Client shall correct eventual faults or errors in
the service performed due to a negligent act or omission of the Consultant or any of the Consultant’s personnel within the scope of the obligations of the Consultant, provided that such faults or errors are signified by Client in writing within three months after the last date of tenure of the Contract.
14.3.3 The final payment by the CLIENT in pursuance of the Contract shall mean, the release of
the Consultant from all his liabilities under the Contract and such final payment shall be made only after acceptance of final report.
14.3.4 The total liability of the consultant under clauses 15.0, 19.3 and 29.1 will be restricted to
10% of the total Contract price. This is excluding Deficiency in Performance under clause 5.0 and CPG under clause 6.6.
15.0 TECHNICAL SOUNDNESS The Consultant shall carry out the services under this contract in conformity with accepted
norms and sound upto-date standards of engineering and principles of technology. In rendering their services they will apply the same care as in matters of their own concern. The Consultant shall be responsible for the technical soundness of the services rendered and of final report. In the event of any deficiency in these services, Consultant shall inter-alia promptly re-do such services at no additional cost to the CLIENT on account of such deficiencies.
16.0 FORCE MAJEURE 16.1 Force Majeure herein defined is a cause which is beyond the control of the Consultant or
the Client, which they could not foresee and which substantially affect the performance of the Contract such as.
16.1.1 Natural phenomena, including but not limited to floods, droughts, earthquakes and
epidemics 16.1.2 Acts of any Government, domestic or foreign, including but not limited to war, declared or
undeclared priorities, quarantines, embargoes, 16.1.3 Strikes, lock outs and sabotage 16.1.4 Riots and civil commotions
44
Provided either party shall within fifteen (15) days from the occurrence of such a cause notify the other in writing of such cause.
16.2. The Consultant or the Client shall not be liable for delays in performing the respective
obligations resulting from any Force Majeure condition occurred. The date of completion shall be extended by a reasonable time.
16.3 If the performance as a whole or part by the Consultant or any obligations under the
Contract is prevented or delayed by “Force Majeure” condition for a period exceeding 120 days, the Client may at his option terminate the Contract by notice in writing.
17.0 DISPUTES Any dispute arising from this Contract for consultancy services between the parties will be
subject to informal dispute resolution, conciliation and arbitration. 18.0 RESOLUTION OF DISPUTES: 18.1 Informal dispute resolution If any dispute between the Consultant and the Client arises, it shall in the first
instance be referred in writing to the Client, who shall endeavour to resolve the dispute amicably and render a decision within 30 days. The period of 30 days shall be reckoned from the date of receipt of intimation of the dispute by the Client.
Save as hereinafter provided, in respect of a dispute so referred, the decision of the
Client shall be final and binding upon the Parties until the completion of the Contract and shall forthwith be given effect to by the Consultant who shall proceed with the Contract with all due diligence, whether or not either Party has sought Conciliation/arbitration of the dispute as hereinafter provided.
The Parties agree to use reasonable efforts to resolve all disputes equitably and in good
faith. 18.2 Conciliation:
(i) If the party is dissatisfied with the decision rendered by the Client, or if the Client omits or declines to render a decision within the said period of 30 days, then within a further period of 30 days, the dissatisfied Party shall require by a notification that the dispute be referred to Conciliation in the manner as per the ‘NLCIL Conciliation Rules’, copy of which is available with the NLCIL offices and the Bidders/ Consultants shall abide by the NLCIL Conciliation Rules’ for resolving any dispute arising out of this contract. Such a notification shall be in writing and it shall be duly served on the other party. Failure to invoke the Conciliation within the time stipulated shall debar the party from seeking reference to Conciliation.
45
(ii) Except as otherwise provided in this clause, any dispute arising out of or relating to this agreement, or the breach, termination or validity thereof, shall be settled by Conciliation in accordance with ‘NLCIL Conciliation Rules’. The Conciliation shall be held at Neyveli / Chennai / or in a place with in India mutually agreed by the parties. The Conciliation proceedings shall be conducted, and the award shall be rendered in English. The award shall state the reasons upon which it is based.
(iii) There shall be three Conciliators, who will be appointed as per Section-5 of the
‘NLCIL Conciliation Rules’. (iv) The Contract agreement/Purchase order conditions and the rights and obligations
of the Parties, shall remain in full force and effect during the Conciliation proceedings. Supplies and / or services under the Contract shall, if reasonably possible, continue during the Conciliation proceedings.
(v) For the purpose of this clause, the term ‘dispute’ shall include a demand or
difference of any kind whatsoever, arising out of the Contract and respecting the performance of the Contract, whether during the Contract period including extensions if any, or after completion, and whether before or after termination, abandonment or breach of the Contract. (except as to any matter, the decision of which is Specifically otherwise provided for in any of these conditions).
(vi) Only in case of failure to resolve the dispute through Conciliation, Arbitration can
be resorted to. (vii) Once the settlement agreement is signed with respect to a dispute, the same
dispute is not subject to further appeal through Arbitration or Judicial Proceedings. (viii) Anything not found included in the ‘NLCIL Conciliation Rules’, but necessary to
conduct the conciliation proceedings will be dealt with as per the provisions of the ‘Arbitration and Conciliation Act 1996 -Part-III’ or as per the statutory provisions modified from time to time.
18.3 Arbitration of Disputes: 18.3.1 In case of failure to resolve the dispute through Conciliation, Arbitration can be resorted to
within a further period of 30 days of failure; the dissatisfied Party may require by a notification that the dispute be referred to arbitration in the manner hereinafter provided. Such a notification shall be in writing and it shall be duly served on the other party. Failure or omission to so refer the dispute for arbitration within the said further period of 30 days, shall constitute waiver by the dissatisfied party of the right to invoke the arbitration provision herein for dispute resolution.
46
18.3.2 Except as otherwise provided in this clause, any dispute arising out of or relating to this Contract or the breach, termination or validity thereof between the parties, shall be finally settled by arbitration in accordance with the Arbitration and Conciliation Act 1996 (the “Act”). The arbitration shall be held at Neyveli or at Chennai, in Tamil Nadu. The arbitration proceedings shall be conducted and the award shall be rendered in English. The award shall state the reasons upon which it is based. Interest, if awarded by the arbitrators, shall be at a rate not exceeding the Cash Credit rate prevailing on the date of the award.
18.3.3 There shall be three arbitrators of whom each party shall appoint one. The party
requesting that the dispute be referred to arbitration shall, within 30 days of the notification in terms of provision as above under clause 18.3.1 appoint an arbitrator as also call upon the other party to appoint an arbitrator within 30 days. The two arbitrators so appointed shall within 30 days of the date on which the second of them is appointed agree on the third arbitrator, who shall act as the presiding arbitrator of the tribunal.
18.3.4 This agreement and the rights and obligations of the parties, shall remain in full force and
effect pending the award in any arbitration proceedings. Supplies and/or services under the Contract shall, if reasonably possible, continue during the arbitration proceedings.
18.3.5 For the purpose of this clause, the term ‘dispute’ shall include a demand or difference of
any kind whatsoever, arising out of the Contract and respecting the performance of the Contract, whether during the ‘Contract Period’ including extensions if any, or after completion, and whether before or after termination, abandonment or breach of the Contract (except as to any matter, the decision of which is Specifically otherwise provided for in Contract).
18.3.6 The party in whose favour the award is passed shall be entitled to recover the entire costs
of arbitration from other party. The arbitrators shall indicate the above in their award clearly.
19.0 TERMINATION Client may terminate this Contract under the circumstances detailed below: 19.1 The Contract for consultancy services shall be liable for termination by the CLIENT if the
conduct or performance of the Consultant and / or their personnel is considered by the CLIENT to be prejudicial to its interest.
19.2 CLIENT at any time, on finding that the performance of services rendered by the
Consultant under this Contract is not satisfactory, will give a written notice to the Consultant to take appropriate remedial steps. If remedial steps are not taken within 15 days of receipt of the notice or are not to the CLIENT’s satisfaction, then CLIENT reserves the right to terminate the contract.
47
19.3 Upon termination of the Contract at any time for whatsoever reason by the CLIENT the proportionate amount shall be payable to the Consultant for the services performed satisfactorily as per Contract, until the date of termination. However, in the event of the Contract being terminated for the reasons attributable to the Consultant and awarded to another Consultant, the difference, if any, shall be recovered from the Consultant and its shall be lawful for the client to setoff the said difference or any other dues from and out of any payment due from the Client to the Consultant. Besides the Client shall also be entitled to blacklist the Consultant for its future transactions.
20.0 FORECLOSURE OF CONTRACT 20.1 The Contract for the consultancy services shall be terminated by the CLIENT if due to any
unforeseen circumstances which may lead to the foreclosure of the project such as resource crunch, non-availability of funds, non-availability of inputs for the power plant/Mining project and for other administrative reasons etc. CLIENT shall however give 30 days prior written notice to the Consultant of the effective date of termination.
20.2 The CLIENT shall pay to the Consultant such amounts as shall have accrued or become
payable to them and/or unpaid on this effective date of such termination. Consultant will be paid only for the quantum of work/services he has rendered till effective date of foreclosure. Client shall not be liable for any other claims like compensation for loss in profit, compensation for loss of reputation etc. or any other consequential damages claimed by the Consultant.
21.0 LANGUAGE English language will be used in all written communications between the CLIENT and the
Consultant with respect to the services to be performed hereunder and with respect to all documents procured or prepared by the Consultant in connection with the Project.
22.0 ADDITIONAL SERVICES Consultant will make available on NLCIL's written request such additional services in
addition to those described in the section “Scope of work” and on such terms and conditions as may be mutually agreed upon by and between the CLIENT and the Consultant.
23.0 ASSIGNMENT Consultant shall not sub contract, transfer or assign the work defined in the scope of work
in part without prior written approval of the CLIENT to any person, company, firm or organization. The Consultant shall not sub-contract, transfer or assign the work back to back to third parties for the performance of this contract.
48
24.0 RETURN OF DOCUMENTS The Consultant shall be responsible for the return within reasonable time to the CLIENT,
documents, if any, that might have been taken from the CLIENT in the course of execution of services under this Contract for consultancy.
25.0 INDEMNITY Consultant shall be liable for and shall indemnify the CLIENT in respect of all damages or
injury to any of the Consultant’s personnel and/or property assigned to this Project. 26.0 OWNERSHIP OF DOCUMENTS 26.1 All drawings, tracings including reproducible, diagrams, designs and calculation in Special
circumstances, Specifications, material lists, flow sheets, patterns, computer diskettes/ CDs and other engineering documents prepared/collected by Consultant in connection with the services hereunder shall at all stages be and remain the properties of the CLIENT, and while in the custody of the Consultant shall be fully available to the CLIENT and its duly authorized representatives. On completion of the assignment, all the drawings, etc. mentioned herein above shall be delivered by the Consultant to the CLIENT. On the completion of each Specific item of work Consultant will make available to the CLIENT, any of the above documents/ drawings as and when needed by the CLIENT. This clause shall not be applicable for those information, which are in public domain or already in possession of the consultant or independently developed by the consultant or obtained by the consultant from any third party.
26.2 The technical data, information, drawings, Specifications, records and other documents
shall not be divulged and or disclosed to any third party or used for any other purpose whatsoever without the Client’s previous consent in writing except to the extent required for execution of this contract. This clause shall not be applicable for those information, which are in public domain.
27.0 APPROVALS Any approval to be obtained by either party from the other under this Contract shall not be
unreasonably denied or with-held. 28.0 EFFECTIVE DATE OF CONTRACT This Contract shall be deemed to have become effective from the date of LOA of the
CLIENT, which will form part of the Contract, and the period of Contract shall be valid till the final Report is accepted by the CLIENT.
49
29.0 DEFECTS IN CONSULTANT’S WORK 29.1 No compensation shall be paid to the Consultant for rectification of errors attributable to
the Consultant. If, consequent to the defects in Consultant’s works the Consultant’s personnel have to make trips, they will do so at their own cost.
29.2 Any loss or damage sustained by the Client on account of such defect shall be payable by
the Consultant. 30.0 DELETION NLCIL reserves the right to delete any item/item of work from the scope as covered in this
Contract and execute the same by themselves or through any other agency separately appointed by them. This provision shall apply at any time during the period of the contract. The amount of compensation to be deducted on account of such deletion will be determined by the CLIENT based on the work load involved. The Consultant shall provide such documentary evidence as may be needed by the CLIENT to determine the quantum of such compensation. However the decision of the CLIENT in this regard shall be final and binding on the Consultant.
31.0 JURISDICTION OF CONTRACT The laws applicable to this Contract shall be the laws in force in India. The civil courts
having ordinary original civil jurisdiction over Neyveli shall alone have exclusive jurisdiction over all matters concerning this contract.
32.0 CORRESPONDENCE All communications and notices to be given by either party to the other in connection with
the rights and obligations of both parties under or pertaining to this Contract shall be sent by post, postage prepaid and if given by fax, e-mail, telephone or verbally, they shall be confirmed by Registered Letter, postage prepaid.
33.0 NUMBER OF VISITS BY THE CONSULTANT:
The entire cost of all the visits required to complete the entire scope of work shall be included in the lumpsum price quoted.
******
50
ANNEXURES OF
SECTION – B
51
ANNEXURE – I
Contract Performance Bank Guarantee format
Note:- 1. This guarantee has to be furnished by a Nationalised Bank / Scheduled Bank Authorised
by RBI (Except Bank of China) 2. The Bank Guarantee should be furnished on Stamp paper of value not less than Rs.80/-
as per Stamp Act. 3. The stamp papers should be purchased in the name of Bank executing the guarantee. ------------------------------------------------------------------------------------------------------------------------
Bank Guarantee No……………. Date: …………………………... To The Chief GENERAL MANAGER / CONTRACTS NLC INDIA LIMITED, Corporate Office, Block-1, Neyveli- 607 801, Cuddalore District, Tamil Nadu, INDIA. Dear Sirs,
1.0 In consideration of the NLC India Limited, Neyveli, hereinafter referred to as the CLIENT,
which expression shall, unless repugnant to the context or meaning, thereof include its successors, representatives and assignees, having awarded, in favour of M/s. ……………………... having registered office at ……………………………..hereinafter referred to as the CONSULTANT, which expression shall, unless repugnant to the context or meaning thereof include its successors, administrators, representatives and assignees, a Contract, hereinafter referred as the "CONTRACT" for the ………………….. on terms and conditions set out interalia, in the Client’s Contract/LOA No. ………….. dated ……… as well as 'CONTRACT' documents, valued at Rs. …………. (Rupees ……………………….) and the same having been unequivocally accepted by the CONSULTANT and the CONSULTANT having agreed to provide a Contract Performance Guarantee for the faithful performance of the entire Contract under the Contract equivalent to 10% of the said value of the Contract to the CLIENT amounting to Rs. ………………….. (Rupees ………………..) as Contract Security in the form of a Bank Guarantee.
2.0 We……………………..(Name)………………………(Address) ……………………
hereinafter referred to as the "Bank" which expression shall, unless repugnant to the context or meaning thereof, include its successors, administrators, representatives and assignees, do hereby irrevocably guarantee and undertake to pay the CLIENT merely on demand without any previous notice and without any demur and without referring to any other source, any and all monies payable by the CONSULTANT by reason of any breach by the said CONSULTANT of any of the terms and conditions of the said CONTRACT to the extent of 10% of the Contract price at any time upto ……………...(day/month/year). Any such demand made by the CLIENT on the Bank shall be conclusive and binding,
52
absolute and unequivocal not-withstanding any difference between the CLIENT and the CONSULTANT or any dispute or disputes raised/ pending before any Court, Tribunal, Arbitrator or any other authority. The Bank agrees that the guarantee herein contained shall continue to be enforceable till this sum due to the CLIENT is fully paid and claims satisfied or till the CLIENT discharges this guarantee.
3.0 The Bank further irrevocably guarantees and undertakes to pay on mere demand without
any demur, reservation, contest, recourse or protest any and all monies due and payable by the CONSULTANT by reasons of non-fulfillment for the successful and satisfactory services furnished under the said Contract as per the Specifications and documents.
4.0 The CLIENT shall have the fullest liberty without affecting in any way the liability of the
Bank under this guarantee, from time to time, to extend the time of performance by the CONSULTANT. The Bank shall not be released from its liabilities under these presents by any exercise of the CLIENT of the liberty with reference to the matter aforesaid.
5.0 The CLIENT shall have the fullest liberty, without affecting this guarantee to postpone
from time to time the exercise of any powers vested in them or of any right which they might have against the CONSULTANT and to exercise the same at any time in any manner, and either to enforce or to forbear to enforce any covenants, contained or implied in the CONTRACT between the CLIENT and the CONSULTANT or any other course or remedy or security available to the CLIENT and the BANK shall not be released of its obligations/ liabilities under these presents by any exercise by the CLIENT of his liberty with reference to the matters aforesaid or any of them or by reasons of any other act or forbearance or other acts of omission or commission on the part of the CLIENT or any other indulgence shown by the CLIENT or by any other matter or thing whatsoever which under law would, but for this provision, have the effect of relieving the BANK guarantee. The Bank further undertakes not to revoke this guarantee during its currency without the previous consent of the CLIENT.
6.0 The CLIENT shall have the fullest liberty to lodge their claims for encashment of the
guaranteed sum in full or in part, in the manner suitable to them. However payment made for a sum lesser than the guaranteed amount shall not relieve or discharge the bank from their obligations guaranteed hereunder till be contractual obligations are fully performed by the CONSULTANT or the Bank Guarantee is discharged by the CLIENT as the case may be and the Bank Guarantee shall continue to be in force till such time.
6.1 The Bank further agrees that the decision of the CLIENT as to the failure on the part of the
CONSULTANT to fulfill their obligations as aforesaid and/or as to the amount payable by the BANK to the CLIENT hereunder shall be final, conclusive and binding on the BANK.
7.0 The BANK also agrees that the CLIENT shall be entitled at his option to enforce this
guarantee against the BANK as a principal debtor, in the first instance notwithstanding any other security or guarantee that it may have in relation to the CONSULTANT's liabilities.
8.0 This guarantee will not be discharged due to the change in the constitution of the BANK or
the “CONSULTANT(S)”
53
9.0 Notwithstanding anything contained herein:
a. Our liability under this bank guarantee shall not exceed ………(in words) b. This bank guarantee shall be valid upto ……….and c. We are liable to pay the guaranteed amount or any part thereof under this bank
guarantee only and only if you serve upon us a written claim or demand on or before ……………..
Dated at ………… this ……….. day of ………… 2017. WITNESSES SIGNATURE
1. (Printed Name) (Signature with Name in Block Designation letters and with Designation) Staff Code No.
Banker's Common Seal
2. (Signature with Name in Block Attorney as per Power of letters and with Designation) Attorney No
Dated
*****
54
SECTION-C SCOPE OF WORK
55
SECTION-C SCOPE OF WORK
Detailed Scope of the work for financial, tax & accounting and legal to analyze the proposed Mater Project Agreement:
LEGAL: 1. Master Project Agreement:
Examination of the Master Project Agreement (MPA) to confirm alignment with applicable PSU governance standards.
Identify if there are any additional legal requirements to adequately specify technology licensing and royalty sharing arrangements within the MPA.
2. Funding Mechanism:
Analyse the suitability of investment through CCD or CCPS by two PSU companies with ECT India and the SPV in the context of: CPSE /PSU Requirements Indian company act RBI regulations foreign exchange act.
Identify risks and alternatives associated to the investment mechanism, conversion mechanism and Put and Call option on conversion after the R&D period. Identify appropriate mitigation mechanisms.
3. Special Purpose Vehicle entity:
Specify the requirements which must be placed into the SPV Articles of Association such that it may become a future JV company between ECT Australia, NLCIL and NMDC. The articles of association should clearly identify the role and function of the SPV.
Specify the requirements which must be added / changed in the existing ECT India’s Articles of Association such that it may become a future JV company between ECT Australia, NLCIL and NMDC. The articles of association should clearly identify the role and function of ECT
Analyze ECT Australia's Articles of Association, obligations and liabilities.
TAX ADVISORY:
4. Analyze and compare the proposed R&D taxation structure with respect to Australian and Indian taxation laws
56
FINANCIAL CONSULTANCY: Analyze ECT Australia audited accounts to ascertain the expenditure recognized and
assets acquired in the development and acquisition of technologies Coldry and Matmor. Including the original fair value of assets acquired (APCS) by ECT on commencement
of the company as at 25th May 2006. Operating expenditure over the period 2006 - present Technology purchases directly related Coldry and Matmor Future funding committed by ECT to Pilot Plant Project under the proposed MPA
Compare the results of this analysis with the proposed funding by NLC and NMDC in the
project to verify the proportioned equity distribution at conversion of ECT India, being ECT Limited – 75% NLC – 12.5% NMDC – 12.5%
Analyze the value of the additional benefits which accrue to NLC and NMDC including: 50% ownership each in the assets of the SPV Exclusivity provided through ECT India for development of the Technology in India The ‘Right of Offer’ to participate in future development projects on terms to be agreed
on a project by project basis. OTHER REQUIREMENTS: The Consultants who will be awarded the Due diligence work must sign Non-Disclosure
agreements with ECT Australia, NLCIL and NMDC (to be provided before giving work order)
Upon tender award, the Consultants must commence immediately, and complete the works program as soon as possible.
The Consultants must submit their findings to both NLCIL and NMDC. The Consultants will be required to present their findings to a joint meeting of parties
within 2 days following the submission of the draft report. The consultants will make presentation of their findings as advised by NLCIL and NMDC to individual management(s) and joint presentation including ECT, NLCIL and NMDC.
*****
