Page 1 of 30 Dated 20 th February, 2015 1. The Employers Response to the following set of Queries alongwith the Addendum/ Corrigendum-4 are appended below. The last date of Receipt of further queries if any is February 27, 2015 in terms of ITB 7.1. No further queries would be entertained thereafter. 2. Employers Response to Queries: No. Vol. Sec. Page Clause Applicant's Question/ Clarification Request Employer’s Response 1 I 5 Particular Conditions 8.7 Maximum amount of delay damages There is no maximum amount of penalty for Group C, which is not acceptable. In the clause 21.2 of Breach of Maintenance Obligations, the calculations method of “Loss or Damages” for Reliability and Availability is provided, however, other than “Breach of Maintenance Obligations (Reliability and Availability)”, there are many obligations with penalty condition under PS-2 (eg. the word “penalty(ies)” is used in the clause 13.6 as well as the word “damage(s)” in many clauses of PS-2 Particular Specification for Maintenance of Electric Locomotive). Such words are used as a general noun and not capitalized (defined). Bidder would like Employer to change those non-capitalized words as “Delay Damages” and set the maximum amount of Delay Damages for Group C. (For your reference, it is defined as “the word ‘Delay Damages’ is synchronous with ‘Liquidated Damages’” in [1.2 Interpretation] in Particular Conditions.) Since Availability and Reliability are to be calculated on Fleet Average Basis, no limit of maximum amount on Damages has been considered and therefore, no change is contemplated for Group C items. Clause 13.6 of PS- 2 is amended as: “In case, a locomotive is delayed in maintenance, owing to non- availability of material, Damages penalties would be payable equal to 5% (five percent) of the price of the Spare for each day of delay, or part thereof, until that Spare is supplied. In the event that any delay hereunder shall cause delay in making available a Locomotive, the delay in supply hereunder shall be deemed as Non- Available Hours.” 2 I 3 93 Form of Bid Security “the Employer” Definition of this term is not stipulated within the The form of Bid Security has been amended with addition of words
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Page 1 of 30
Dated 20th
February, 2015
1. The Employers Response to the following set of Queries alongwith the Addendum/
Corrigendum-4 are appended below.
The last date of Receipt of further queries if any is February 27, 2015 in terms of ITB
7.1. No further queries would be entertained thereafter.
2. Employers Response to Queries:
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
1 I 5 Particular
Conditions
8.7 Maximum
amount of
delay
damages
There is no maximum
amount of penalty for
Group C, which is not
acceptable.
In the clause 21.2 of
Breach of Maintenance
Obligations, the
calculations method of
“Loss or Damages” for
Reliability and Availability
is provided, however, other
than “Breach of
Maintenance Obligations
(Reliability and
Availability)”, there are
many obligations with
penalty condition under
PS-2 (eg. the word
“penalty(ies)” is used in the
clause 13.6 as well as the
word “damage(s)” in
many clauses of PS-2
Particular Specification
for Maintenance of Electric
Locomotive). Such words
are used as a general noun
and not capitalized
(defined).
Bidder would like
Employer to change
those non-capitalized
words as “Delay
Damages” and set the
maximum amount of Delay
Damages for Group C. (For your reference, it is
defined as “the word
‘Delay Damages’ is
synchronous with
‘Liquidated Damages’” in
[1.2 Interpretation] in
Particular Conditions.)
Since Availability
and Reliability are
to be calculated on
Fleet Average
Basis, no limit of
maximum amount
on Damages has
been considered
and therefore, no
change is
contemplated for
Group C items.
Clause 13.6 of PS-
2 is amended as:
“In case, a
locomotive is
delayed in
maintenance,
owing to non-
availability of
material, Damages
penalties would be
payable equal to
5% (five percent)
of the price of the
Spare for each day
of delay, or part
thereof, until that
Spare is supplied.
In the event that
any delay
hereunder shall
cause delay in
making available a
Locomotive, the
delay in supply
hereunder shall be
deemed as Non-
Available Hours.”
2 I 3 93 Form of
Bid
Security
“the Employer”
Definition of this term is
not stipulated within the
The form of Bid
Security has been
amended with
addition of words
Page 2 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
form.
Please replace “the
Employer” to “Ministry of
Railways, Government of
India” accordingly.
i.e. “whom the
Contract defines as
the Employer”
under the
identification of
Beneficiary.
3 1
(1/2)
3 105 Form I-B-3
(h), note 4
Clause 22.1.2, PS-3 Part C1
of Volume III states that
“Employer shall deploy all
personnel necessary for
operation and management
of ELMD. Such deployment
shall include competent
managers…(rest omitted)”
Judging from the foregoing
provision, the Tenderer
understands that General
Manager and Functional
Managers as stated in note 4
of Form I-B-3 paragraph (h)
shall all be the Employer’s
personnel and therefore that
the Tenderer should not be
required to provide such
personnel nor submit
curriculum vitae (CV)
thereof. Please confirm
foregoing understanding is
correct.
If the Tenderer is still
required to submit aforesaid
CV, please specify the
personnel corresponding to
the Functional Managers,
since no Functional Manager
appears to be existing in the
list of Form I-B-3 paragraph
(h).
General Manager
and Functional
Manager
mentioned in this
note refer to the
Contractor's
Personnel.
Functional
Manager means
Functional Heads
mentioned in
paragraph (h) at s.
nos. 2 to 9.
4 1
(1/2)
3,
Form
I-B-
6(8)
142 3 The Tenderer requests the
Employer to provide
definitions of the terms
“capital spares” and
“maintenance spares” as
used in Clauses 3.1 and 3.3,
since the difference of the
two is not clear by the
description provided in the
respective clauses.
Capital spares are
high value spares
which generally
have a long life
and long delivery
period.
Maintenance
Spares are all
other spares except
Capital spares,
which are required
for maintenance.
These lists will
however be
proposed by the
Page 3 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
Contractor in
consultation with
the Engineer after
award of the
Contract.
5 1
(1/2)
5, Part
II,
Part A
154 1.1.3.7 Judging from PC 1.1.3.7, GS
27.6.16, GS 27.6.18 and GS
27.10.3, the Tenderer
understands that the
Contractor’s maintenance
obligation of the ELMD
Stage 1 as well as the Defect
Liability Period thereof shall
start upon the taking over of
ELMD stage 1, which shall
match with the issuance of
the Taking Over Certificate
for the three Prototype
Locomotives as stipulated in
GS 27.6.16. .
As GS 27.7.5 states contrary
to the aforementioned
provisions that taking over
shall commence at the
completion of period of
maintenance obligation,
please correct GS 27.7.5
accordingly to be consistent
with the aforementioned
provisions.
Further, please confirm that
the term of “acceptance
certificate” as used under
27.6.12 shall be read as
Taking Over Certificate,
'Taking over'
mentioned in
Clause 27.7.5
refers to taking
over of Works at
the end of
Maintenance
Period, i.e. the
final handing over
after completion of
'Maintenance
Support', and not
the issue of Taking
Over Certificate /
Acceptance
Certificates after
completion of
Works which is
mentioned in 27.6.
There is no PC
1.1.3.7 as
mentioned by the
Bidder. It is
however, ATB
1.1.3.7.
Stipulations of
ATB 1.1.3.7 are
clear and self
explanatory.
Hence, no changes
in the above
Clauses are
contemplated.
6 1
(1/2)
5, Part
II,
Part A
161 Table:
Definition
of Sections
Description of RS-1 states
“Procurement of proto-type
locomotives (3 nos.) made in
Japan – Successful
completion of Prototype
Test”, which is to be
completed by “1125 days
from the Commencement
Date”.
Please refer Clause
5.8 & 5.9 of PS-5
(Vol. III) and
Clause 27.2.3 &
27.2.4 of GS for a
clear
understanding.
Page 4 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
Judging from starting date,
“D+37(1125)”, of activity
“L10 Service Trials on DFC
Lines (50,000 km/loco)”
defined in Appendix-1 to
Part B of Section 8 General
Specification, the Tenderer
understands that the issuance
of a Provisional Acceptance
Certificate (PAC) for the
Prototype Locomotives shall
constitute completion of
Prototype as referred to
under RS-1 and that Service
Trial shall not be construed
as part of the Prototype Test
for the conditions of
completion. Please confirm
foregoing understanding is
correct.
7 1
(1/2)
5, Part
II,
Part B
176 13.7 Clause 8.4 (d) of section 5
entitles the Contractor to
claim extension of time “due
to changes in laws”, making
reference to Clause 13.7,
which is conversely deleted
by Clause 13.7 under
Section 5.
The Tenderer believes that it
is unreasonable and against
the industry practice to
require the Contractor to
bear the burden of schedule
and cost implications
resulting from any changes
to the law, regulation,
statutes or standards that are
implemented after the
Commencement Date in
light of the periods for
contract execution over this
long-running term, as such
changes are unforeseeable
and uncontrollable by the
Contractor.
Accordingly, the Tenderer
requests that Clause 13.7 of
the General Conditions be
reinstated.
The Employer
perceives that the
taxes/duties are
likely to be
impacted by
change in law.
Accordingly
reimbursement of
taxes/duties have
been adequately
covered. Hence, no
change in this
Clause is
contemplated.
However, the
provision of PC 8.4
have been amended
as under:
Delete Sub-
Clauses (d) and
substitute as
under:-
“Unforeseeable
shortages in the
availability of
Goods caused due
to governmental
action changes in
laws in accordance
with the provisions
of Sub-Clause
13.7”
8 5 176 Particular
Conditions
13.7
Adjustmen
ts for
[Change in Legislation]
Please find the line for Item
No.1 of Appendix A:
Clarification Record for
The Employer
perceives that the
taxes/duties are
likely to be
impacted by
Page 5 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
Changes in
Legislation
Major Contractual
Conditions, which is
attached to this Clarification
Sheet.
According to the Response
to the Queries in the 2nd
Pre-Bid Meeting, Employer
seems to consider this issue
only for change of Indian
Tax Legislation.
However, Bidder’s concern
is not only for the Indian Tax
Legislation but also includes
the General Indian
Legislation. Examples of
Bidder’s Concern are as
follows;
Ex.1: If Indian Labor Law
changes after the
Tender Base Date, and
normal working hours
in India become
moderated, either time-
over-run or cost-over-
run is inevitable.
Ex.2: If Indian
Environmental Law
changes after the
Tender Base Date, and
some new
environmental
assessments becomes
mandatory for this
project, either time-
over-run or cost-over-
run is inevitable.
Please note Bidder can take
Legislation Change Risk of
outside India, but Bidder
cannot take Indian
Legislation Change Risk.
Therefore, Bidder would like
Employer to revive this
clause, i.e. Clause 13.7 of
General Condition .
change in law.
Accordingly
reimbursement of
taxes/duties have
been adequately
covered. Hence, no
change in this
Clause is
contemplated.
9 5 176 Particular
Condition
13.8
Adjustmen
[Price Adjustment Clause
for ELMD]
Please find the line for Item
No.4 of Appendix A:
Bidders may note
that construction of
ELMD is not an
independent
Page 6 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
t for
Changes in
Cost
Clarification Record for
Major Contractual
Conditions, which is
attached to this Clarification
Sheet.
During the 2nd
Pre-Bid
Meeting, Employer
mentioned that Price
Adjustment Clause shall not
applicable for ELMD, but
the reason is not clear and
Bidder cannot accept.
Please note if there is no
Price Adjustment Clause in
ELMD, Bidder has to put
contingency for the same
instead and increase Bid
Price unwillingly, which is
not small impact in this
project, since the amount of
ELMD must consist one of
major portion in this
Package under the current
demanding tender condition.
Please refer to Section 4.12
in the JICA’s ODA
Procurement Guideline
(Amendment on March
2009). Application of Price
Adjustments Clause is
recommended as follows;
“It is generally
recommended that price
adjustment provisions be
necessary for works
contracts which extend
beyond one year, and that
such provisions be
included even for works
contracts which is less
than one year, if
fluctuation of prices is
expected within a
relatively short time
period. ”
Under these circumstances,
Bidder would like Employer
to reconsider to apply
Bidder’s proposing Price
Adjustment Index for
ELMD, which is again
contract but part of
a composite
contract
comprising Design,
Manufacturing/
Construction,
Supply,
Installation,
Testing &
Commissioning of
Electric
Locomotives cum
Maintenance &
Depot works
including Transfer
of Technology
(TOT). Therefore,
all commercial
provisions in the
Bid Document
needs to be
considered for the
Tender Package as
a whole.
Accordingly,
advance payments
have been
provided.
Similarly, Price
Variation for Local
& Foreign
currency have also
been factored for
Group A items.
Hence, no change
in this Clause is
contemplated.
Page 7 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
attached herein as Appendix
C.
10 5 Particular
Conditions
14.1
The
Contract
Price
[Tax Reimbursement]
Please find the line for Item
No.2 of Appendix A:
Clarification Record for
Major Contractual
Conditions, which is
attached to this Clarification
Sheet.
According to the Employer’s
Response to the Queries in
the 2nd Pre-Bid Meeting,
Employer states that PC 14.1
is clear and self-explanatory,
but that doesn’t suffice our
requirements.
Bidder seriously concerns
the feasibility of
reimbursement procedure
and impact to the cash flow
plan, so please clarify the
following details.
1) List of all the tax item
which can be
reimbursable in this
project
2) Timing of Contractor’s
reimbursement claim to
Employer
(Any time Contractor
deposit tax? Monthly?
Yearly? Or one time in
Final Payment
Application. )
3) All the required evidence
to be submitted to Employer
(Only Tax Invoice? Copy
of Bank Statement is also
required?)
4) Required Period for
Employer to make
reimbursement
5) Amount of
Reimbursement
(Gross tax amount
mentioned in each
Contractor’s Tax Invoice?
Or Net Tax amount
deposited by Contractor to
It is reiterated that
existing provisions
in Clause PC 14.1
are clear and self-
explanatory.
However,
payment/reimburse
ment of
taxes/duties would
be made along with
the payment for the
respective stages
mentioned in the
schedules
(Schedules 4.1 to
4.20 of Price Bid:
Bid Document:
Vol. 1 – Part 2/2,
further explained
in Schedule 5).
Where payment is
made in more than
one part, the
payment/reimburse
ment of
taxes/duties would
be made along with
the last payment.
As already
indicated in Clause
14.1, documentary
evidence relating
to the tax payment
having been made
would have to be
enclosed along
with the claim.
Claims would be
examined and
payments made as
per Clause 14 of
General Conditions
as amended by
relevant Particular
Conditions.
The tax
reimbursement is
applicable only to
Page 8 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
Authority after offset of
input credit amount paid
by Contractor to its
subcontractors? )
6) Reimbursement for
Subcontractor’s Tax
(Whether reimbursement
is also available for Indian
Indirect Taxes (both
Federal and State level)
and Custom Duties
incurred by Subcontractors
at the import/delivery of
either permanent material
or construction/temporary
equipment, if Contractor
submits evidence and
claim the reimbursement
to Employer? If so, please
let us know the procedure
and necessary evidence. )
For your reference, we
attach the reimbursement
procedure in DMRC
Project Phase II Contract
RS3 as Appendix B.
the contractor and
not the sub-
contractor. (Refer
clause PC 14.1)
The detailed
payment procedure
will be finalized by
the Engineer after
the award of the
contract. In this
regard, Clause 14.3
of General
Conditions may be
referred.
11 5
6
157
41-
43
Appendix
to Bid 14.2
Total
advance
payment
with
Currencies
and
proportions
Group B
Electric
Locomotiv
e
Maintenan
ce Depot,
schedule
4.11-4.17,
Schedule-5
- Payment
Schedule
[Advance Payment for
ELMD]
Please find the line for Item
No.5 of Appendix A:
Clarification Record for
Major Contractual
Conditions, which is
attached to this Clarification
Sheet.
During the 2nd
Pre-Bid
Meeting, Employer
mentioned that Advance
Payment shall not applicable
for ELMD, but the reason is
not clear and Bidder cannot
accept.
Please note, under current
Milestone Payment
Schedule, Bidder will face
serious negative cash flow in
ELMD construction
especially during the Stage-
1, and approximately 20% of
Advance Payment and
Ref. to Employer’s
response at Sl. No.
9 above.
Page 9 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
monthly progress payment
for interim payment instead
of current milestone
payment condition which the
events are heavily shifted to
the later stage of the
Contract is required for
remedy the situation.
Please refer to Section 4.13
in the JICA’s ODA
Procurement Guideline
(Amendment on March
2009). Application of
Advance Payment is
recommended as follows;
"Advance payment clauses are generally included in contracts"
"the amount of the advance payment should be within a reasonable range in relation to international practice."
"The percentage can usually be expected to lie between 10 and 15% of the contract price"
"Cases of no advance payment should be avoided as much as possible and a certain amount of advance payment should be required to ensure a smooth progress of work, since the financial situations of some businesses in developing countries are frequently not entirely satisfactory."
Under these circumstances,
Bidder would like Employer
to reconsider the advance
payment clause, and at least
“10% of EL Amount” should
be amended as “20% of
Contract Amount”.
12 6
9-10
24-29
Schedule
2-Preamble
to the Price
Schedule
Group B-
Electric
Locomotiv
[Payment Schedule for
ELMD]
Bidder understands the
interim payment shall be
made for 35 instalments in
accordance with the current
payment schedule 4.11 –
The Bidders are
again advised that
construction of
ELMD is not an
independent
contract but part of
a composite
contract
Page 10 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
5
41-43
56-58
153
178
e
Maintenan
ce
Depot(EL
MD)
“Schedule
4.11”~“Sc
hedule
4.18”
Schedule
4-Price
Schedule-
Price Bid
“Price
Schedule
4.11”~“Pri
ce
Schedule
4.18”
Group B-
Electric
Locomotiv
e
Maintenan
ce Depot,
schedule
4.11-4.18
Payment
Schedule
4.11
Payment
Schedule
4.12, 4.13,
4.14,
4.15,4.16,
4.17 &
4.18
4.18. However, as most of
these instalments are
supposed to be paid much
later than the payment by
Contractor to the
subcontractors and the
suppliers, Contractor will be
suffered by long-term
negative cash flow during
Stage-1 of ELMD
construction even though
20% of advance payment is
accepted by Employer.
To avoid serious negative
cash flow, Bidder would like
to propose the monthly
progress payment method
with the following steps
(reference is attached as the
Appendix - D “Monthly
Progress Payment Method
(Sample)”);
(1) Increase the number of
items from the current 35
items specified in the
original Payment
Schedule to the items
specified in the original
Price Schedule (the left
column of Appendix -
D). In accordance with
the original requirement
of Payment Schedule,
Bidder to propose the
additional items for
Schedule 4.13 – 4.16
(2) Bidder to propose the
Sub-milestones as
payment event with
weight factor for each
item above such as,
“Letter of Intent or PO to
Vendor (a%)”,“Start
Fabrication (b%)”,
“Finish Fabrication
(c%)”, “IRN (Inspection
Release Notice) (d%)”,
“EX-Factory or FOB)
(e%)...etc.” upon
submission of proposal to
Employer (red color in
comprising Design,
Manufacturing/
Construction,
Supply,
Installation,
Testing &
Commissioning of
Electric
Locomotives cum
Maintenance &
Depot works
including Transfer
of Technology
(TOT). Therefore,
all commercial
provisions in the
Bid Document
needs to be
considered for the
Tender Package as
a whole.
Hence, no change
in this Clause is
contemplated.
Page 11 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
the top row of Appendix
- D).
(3) During the execution of
Works, Contractor to
prepare and submit the
bill to Engineer monthly
for the Sub-milestones
completed for each item
in that month. Payment
from Employer shall be
made monthly through
the procedure in
accordance with Sub
Clause 14.3, 14.6 and
14.7 of General
Condition and Particular
Condition.
Please accept the foregoing
proposal for interim payment
of Group-B.
13 I 7 190 Performan
ce
Security
Both the terms “Security”
and “Guarantee” are used.
Please consolidate them to
the ether one to avoid being
confusion.
The heading
specifies the
“Performance
Security” which is
being accepted by
Employer in the
form of a
Guarantee from
Bank, which is
specified in the
FIDIC sub-clause
4.2 & its relevant
sub-clause ATB
4.2 & PC 4.2.
Accordingly, both
the terms are
relevant in their
context.
Further, the said
terms are same as
per JICA’s
Standard Bidding
Document.
Accordingly, no
change in the
format of
Performance
Security is
contemplated.
14 I 7 190 Performanc
e
Security
“subparagraph (ii) of Sub-
article 20(a)”
This subparagraph (ii) does
NOT exist in article 20 (a).
Yes, the
subparagraph (ii)
doesn’t exist in
sub-article 20(a).
However, the
Page 12 of 30
No. Vol. Sec. Page Clause Applicant's Question/
Clarification Request
Employer’s
Response
Please clarify. reference for this
subparagraph in
the Format of
Performance
Security is meant
for its exclusion
only, therefore, no
corrections is
required in the
format.
15 I 7 190 Performanc
e
Security
*Quote*
At the request of the
Contractor, we [insert
name of Bank] hereby
irrevocably undertake to
pay you any sum or sums
not exceeding in total an
amount of [insert amount
in figures] ([amount in
words]),1 such sum being
payable in the types of
currencies in which the
Contract Price is payable,
upon receipt by us of your
first demand in writing
accompanied by a written
statement stating that the
Contractor is in breach of
its obligation(s) under the
Contract, without your
needing to prove or to
show grounds for your
demand or the sum
specified therein.
*Unquote*
We consider such right of
indemnification should be
executed with your proving
or appropriate evidence
that the Contractor is in
breach of its obligation(s).
Therefore we request you
to replace the term
“without” to
“with”appropriately.
The provision is as
per the JICA’s
Standard Bidding
Document.
Accordingly, no
change in the
Performance
Security is
contemplated.
16 I 7 191 Advance Both the terms “Security” The heading
Contract for Contract Package RS P-7: Electric Locomotive cum Maintenance and Depot
Works.
The following are further modifications to the above Bid Document issued on September 01, 2014. The
referenced provisions are to be read in the amended form as set out below. The deletions from the
earlier text of the document circulated are indicated as strike throughs and the additions are underlined.
S. No. Clause/ Ref Page No. Modified Provisions (in track change)
VOLUME I (1/2 & 2/2)
1 Form of Bid
Security 93
Form of Bid Security (Bank Guarantee)
Beneficiary: The President of India, Acting through Executive Director, Electrical (Development), Ministry of Railway (MOR) Railway Board, Govt. of India, Rail Bhawan, New Delhi – 110001 (India) (Defined in the Bid Document as “the Employer”) ……….
2
Particular
Condition
8.4:
Extension of
Time for
Completion
174
…….
Delete Sub-Clauses (d) and substitute as under:-
“Unforeseeable shortages in the availability of Goods caused due to
governmental action changes in laws in accordance with the
provisions of Sub-clause 13.7”
……….
3
Volume I
(1/2) 14.7
Particular
Conditions
179
Payment to the Contractor of the foreign and local currency portions
using the proceeds of the Loan shall be made by the Commitment