Draft Concession Agreement(DCA)

Introduction :

The Concession Agreement means an agreement entered into between a Procuring Entity and a private sector participant for and in respect of a Public-Private Partnership The draft Concession Agreement which shall govern the contractual relations between the Concessionaire and the Procuring Entity detailing the rights and obligations of both the parties, definition of the subject matter of the agreement, payment terms, performance obligations, defaults and their consequences, events of termination and other ancillary clauses as provided in Schedule-I of this rule.

Description:

1. Provisions of the DCA:

a. Feasibility Report or Project Information Memorandum or both which will provide information to tenderers such as:
i. Recitals- identifying the parties to the contract, offer and acceptance;
ii. Definitions
iii. Scope of the Public Private Partnership (PPP) Project;
iv. Grant of concession
v. Conditions precedent;
vi. Obligations of the Concessionaire;
vii. Obligations of the Procuring Entity;
viii. Representations and warranties of both the parties;
ix. Form and value of Performance Security to be submitted by the Concessionaire;
x. Matters related to the site;
xi. The construction of the facility including Minimum Technical Requirements thereof, date for completion of construction etc.;
xii. Performance monitoring during construction including KPIs, monitoring responsibilities and related provisions;
xiii. Completion of construction including provisions for testing, approval and certification;
xiv. Change in scope during the contract period;
xv. Operation and maintenance of the facility and provision of service including minimum technical requirements;
xvi. Performance monitoring during operations and maintenance including key performance indicators, monitoring and reporting responsibilities and related provisions;
xvii. Appointment, role and functions, remuneration and reporting requirements of Independent Engineer and Independent Auditor;
xviii. Financial close;
xix. State support, grant expected or revenue share or premium to be paid;
xx. Payments by users, authority for tariff fixation, procedure of revision of tariff and related provisions;
xxi. Collection of user charges, including allocation of the authority to collect and retain user charges;
xxii. Financial aspects of the contract including escrow account, other payments between the parties to the contract;
xxiii. Maintenance of books of accounts and audit requirements;
xxiv. Insurance;
xxv. Force Majeure
xxvi. Events of default and consequences of default;
xxvii. Termination of the contract and consequences of termination;
xxviii. Assignments and charges;

The link for online submission of Draft Concession Agreement is - https://tnidb.xenovex.com/en/documents/bid-documents/

Relevant Clauses:

TNID Act 2012
Section 12(6)	((1) The Tender Inviting Authority shall prepare the Request for Proposal (RFP) and the Draft Concession Agreement and issue it to all the qualified applicants. (c) ·the appropriate concession agreement or a combination thereof, from out of those listed in Schedule II.
Section 18(4)	(4) The procuring entity shall, in respect of Projects identified by the Board, intimate the name and address of the tenderer whose tender has been accepted, to the Board and shall also obtain its approval on the concession agreement to be entered into with such tenderer.

TNID Regulations 2013
Regulation 15	Approval of Tender Documents and Concession Agreement (1) The Board may prescribe standard tender documents for adoption for different types of projects and such standard documents may be used for procurement wherever available. (2) Until such standard tender documents are prescribed, the public agency or sponsoring agency, as the case may be, shall submit the draft tender documents for the prior approval of the Board. (3) In the case of Public Private Partnership projects, the sponsoring agency may where applicable follow the model tender documents and model concession agreements for Public Private Partnership projects prepared by the Union Planning Commission as the base, with such modifications as may be necessary. (4) All tender documents including draft concession agreements for Public Private Partnership projects shall require the prior approval of the Board and any substantive changes made during pre-tender consultations with prospective tenderers shall also be approved by the Board. (5) The sponsoring agency may with the prior concurrence of the Board issue a Request for Expression of Interest at any time and even the project scope and structure are finalized by the Board under section 17 of the Act. (6) The sponsoring agency shall issue the Request for Quotations only after the project scope and structure have been finalized by the Board under section 17 of the Act and the financial support from Tamil Nadu Infrastructure Development Fund, if any, is approved under rule 12 of the Tamil Nadu Infrastructure Development Rules. (7) The sponsoring agency shall forward to the Board, the Concession Agreement to be signed with the tenderer whose tender has been accepted with a certificate that no changes have been affected in the final Draft Concession Agreement which formed part of the Request for Proposal (RFP).

TNID Regulations 2013

Regulation 15

Approval of Tender Documents and Concession Agreement

(1) The Board may prescribe standard tender documents for adoption for different types of projects and such standard documents may be used for procurement wherever available.

(2) Until such standard tender documents are prescribed, the public agency or sponsoring agency, as the case may be, shall submit the draft tender documents for the prior approval of the Board.

(3) In the case of Public Private Partnership projects, the sponsoring agency may where applicable follow the model tender documents and model concession agreements for Public Private Partnership projects prepared by the Union Planning Commission as the base, with such modifications as may be necessary.

(4) All tender documents including draft concession agreements for Public Private Partnership projects shall require the prior approval of the Board and any substantive changes made during pre-tender consultations with prospective tenderers shall also be approved by the Board.

(5) The sponsoring agency may with the prior concurrence of the Board issue a Request for Expression of Interest at any time and even the project scope and structure are finalized by the Board under section 17 of the Act.

(6) The sponsoring agency shall issue the Request for Quotations only after the project scope and structure have been finalized by the Board under section 17 of the Act and the financial support from Tamil Nadu Infrastructure Development Fund, if any, is approved under rule 12 of the Tamil Nadu Infrastructure Development Rules.

(7) The sponsoring agency shall forward to the Board, the Concession Agreement to be signed with the tenderer whose tender has been accepted with a certificate that no changes have been affected in the final Draft Concession Agreement which formed part of the Request for Proposal (RFP).

TNTIT(PPP) Rules, 2012
Rule 59	Tender Finalization and Award. (1) The results of evaluation of tenders shall be submitted to the Tender Accepting Authority for approval. (2) The Lowest Tenderer shall be notified by the Tender Inviting Authority after obtaining approval of the Tender Accepting Authority. (3) On receipt of approval of the Tender Accepting Authority, the Tender Inviting Authority shall communicate to other Tenderers about the selection of the Lowest Tenderer, and its intention to execute the Concession Agreement with the Lowest Tenderer. (4) After selection, a Letter of Award (LOA) shall be issued, in duplicate, by the Procuring Entity to the Lowest Tenderer with the condition that the Lowest Tenderer shall, within 7 (seven) days of the receipt of the Letter of Award (LOA), sign and return a duplicate copy of the Letter of Award (LOA) in acknowledgement thereof. (5) Subject to fulfilment of the requirements specified in the Request for Proposal (RFP) and of the Letter of Award (LOA) the Lowest Tenderer will be required to enter into a Concession Agreement with the Procuring Entity and the Procuring Entity shall execute the Concession Agreement with the Lowest Tenderer.
Rule 60	Monitoring of Concession Agreement. (1) Procuring Entity that enters into a Concession Agreement shall make adequate institutional arrangements to monitor the performance of the Concessionaire under such agreement. (2) Such arrangements shall include the receipt, study and corrective action based on the reports of the Independent Engineer and Independent Auditor.

TNTIT(PPP) Rules, 2012

Rule 59

Tender Finalization and Award.

(1) The results of evaluation of tenders shall be submitted to the Tender Accepting Authority for approval.

(2) The Lowest Tenderer shall be notified by the Tender Inviting Authority after obtaining approval of the Tender Accepting Authority.

(3) On receipt of approval of the Tender Accepting Authority, the Tender Inviting Authority shall communicate to other Tenderers about the selection of the Lowest Tenderer, and its intention to execute the Concession Agreement with the Lowest Tenderer.

(4) After selection, a Letter of Award (LOA) shall be issued, in duplicate, by the Procuring Entity to the Lowest Tenderer with the condition that the Lowest Tenderer shall, within 7 (seven) days of the receipt of the Letter of Award (LOA), sign and return a duplicate copy of the Letter of Award (LOA) in acknowledgement thereof.

(5) Subject to fulfilment of the requirements specified in the Request for Proposal (RFP) and of the Letter of Award (LOA) the Lowest Tenderer will be required to enter into a Concession Agreement with the Procuring Entity and the Procuring Entity shall execute the Concession Agreement with the Lowest Tenderer.

Rule 60

Monitoring of Concession Agreement.

(1) Procuring Entity that enters into a Concession Agreement shall make adequate institutional arrangements to monitor the performance of the Concessionaire under such agreement.

(2) Such arrangements shall include the receipt, study and corrective action based on the reports of the Independent Engineer and Independent Auditor.