Petition No 783 of 2012 - UPERC · website . 6) The Commission heard the above petition on 21-02-12...
Transcript of Petition No 783 of 2012 - UPERC · website . 6) The Commission heard the above petition on 21-02-12...
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Petition No 783 of 2012
BEFORE
THE UTTAR PRADESH ELECTRICITY REGULATORY COMMISSION
LUCKNOW
Date of Order : 18-03-2013
PRESENT:
1. Hon’ble Shri Shree Ram, Member
2. Hon’ble Smt. Meenakshi Singh, Member
IN THE MATTER OF:
Adoption of transmission charges under Section 63 of the
Electricity Act, 2003 with respect to intra-state transmission
system, to be established by Western U.P. Power
Transmission Company Limited.
AND
IN THE MATTER OF
Petitioner Western U.P. Power Transmission Company Limited S-3, 2nd Floor, Aditya Mega Mall, Indirapuram, Ghaziabad.
Respondents 1. Managing Director, UPPTCL, Lucknow
2. Managing Director, PVVNL, Meerut
3. Managing Director, DVVNL, Agra
4. Managing Director, PuVVNL, Varanasi
5. Managing Director, MVVNL, Lucknow
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The following were present:
1. Sri P.K. Sharma, Chief Engineer, UPPTCL
2. Sri D.C. Chaudhry, Superintendent Engineer, UPPTCL
3. Sri A. N. Gupta, Executive Engineer, UPPTCL
4. Sri Alok Kumar Gupta, WUPPTCL
5. Sri Manoj Tripathi, WUPPTCL
6. Sri Anand K. Ganesan, Advocate, WUPPTCL
Order
(Date of Hearing 20.11.2012)
1) The Petitioner, M/s Western UP Power Transmission Company Limited
( hereinafter referred to as WUPPTCL) has filed this petition on 06-01-12 under
section 63 of Electricity Act,2003 (the Act) and in accordance with Para 12.4 of
‘Tariff Based Competitive Bidding Guidelines for Transmission Service’, issued
by Ministry of Power, Govt. of India (hereinafter referred to as “GOI”), for
adoption of transmission charges with respect to the development of following
intra-state transmission system titled “765KV S/C Mainpuri - Hapur & Mainpuri -
Greater Noida lines with 765KV/400KV AIS at Hapur & Greater Noida and
associated Schemes/Works” on ‘Build, Own, Operate & Maintain and Transfer’
(hereinafter referred to as “BOOT”) basis.
Elements of Transmission System titled “765KV S/C Mainpuri - Hapur &
Mainpuri - Greater Noida lines with 765KV/400KV AIS at Hapur & Greater
Noida and associated Schemes/Works”
S.No. Name of the Transmission Element / Project
(I) Transmission lines
1 765kV S/C Mainpuri - Hapur with Quad Bersimis Conductor(250kms)
2 LILO of 400 kV S/C Moradabad - Muradnagar line at 765kV Hapur
Substation with Twin Moose Conductor(20kms)
3 400kV D/C Hapur– Ataur (Ghaziabad) Line with Quad Moose
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Conductor (65Kms)
4 765kV S/C Greater Noida - Hapur Line with Quad Bersimis
Conductor(50kms)
5 LILO of 765kV Meerut(PGCIL) – Agra(PGCIL) Line at 765kV Greater
Noida Substation with Quad Bersimis Conductor (2xS/C) (40kms)
6 765kV S/C Mainpuri – Greater Noida Line with Quad Bersimis
Conductor (270kms)
7 LILO of 400kV S/C Muradnagar – Muzaffarnagar Line at Ataur
(Gaziabad) Substation with Twin Moose Conductor(40kms)
8 400kV D/C Greater Noida – Sikandrabad Line with Quad Moose
Conductor(40kms)
9 LILO of 400kV S/C Rishikesh – Kashipur Line at 400kV Substation
Nehtaur with Twin Moose Conductor (10kms)
10 400kV D/C (Quad) Ataur (Ghaziabad) – Indirapuram Line with Quad
Moose Conductor(25Kms)
11 400kV D/C Hapur (765kV) - Dasna Line with Quad Moose
Conductor(23kms)
12 400kV D/C (Quad) Greater Noida (765KV) – Noida (Sector-148) with
Quad Moose Conductor (30Kms)
(II) Substations
1 2X1500MVA,765/400kV & 2X500MVA, 400/220kV AIS at Hapur
2 2X1500MVA,765/400kV & 2X315MVA , 400/220kV AIS at Greater
Noida
3 2X500MVA, 400/220kV & 3X60MVA, 220/33kV GIS at Ataur
(Ghaziabad)
4 2X500MVA , 400/220kV AIS at Sikandrabad
5 2X200MVA, 400/132kV AIS at Nehtaur (Bijnore)
6 2X315MVA, 400/220kV & 2X100MVA , 220/132kV GIS at Dasna
7 2X500MVA , 400/220kV & 3X60MVA , 220/33kV GIS at Indirapuram
(III) Bus Switching-Arrangement
1 Hapur: One & half breaker with double main bus scheme for 765 &
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400KV side and Double Main & Transfer Scheme for 220KV side.
2 Greater Noida: One & half breaker with double main bus scheme for
765 & 400KV side and Double Main & Transfer Scheme for 220KV
side.
3 Ataur: Double Main bus scheme for 400KV, 220KV & 33KV side.
4 Sikandrabad: One & half breaker with double main bus scheme
for400KV side and Double Main & Transfer Scheme for 220KV side.
5 Nehtaur: One & half breaker with double main bus scheme for400KV
& single main & transfer scheme for 132KV side.
6 Dasana: Double Main bus scheme for 400KV, 220KV & 132KV side.
7 Indirapuram: Double Main bus scheme for 400KV, 220KV & 33KV
side.
2) The Petitioner has also enclosed the copies of following documents with the
petition:-
(a) Letter of Intent (LOI) dated 31-05-11, issued by UPPTCL to the Cobra
Instalactiones Y Servicios S.A. & Megha Engineering and Infrastructure Ltd
Consortium (hereinafter referred to as “Cobra-MEIL Consortium” or
“Successful Bidder”) to establish the transmission system for “765KV S/C
Mainpuri- Hapur & Mainpuri – Greater Noida lines with 765KV/400KV AIS at
Hapur & Greater Noida and associated Schemes/Works” (hereinafter
referred to as “Project” or “Transmission System” or “Package-2”), specified
under tender specification no ESD-765/4(Package-2) and all its amendments
thereof till the bid deadline.
(b) The Transmission Service Agreement (TSA) signed on 27-12-11 by
WUPPTCL and the Long Term Transmission Customers (hereinafter referred
to as the “LTTCs”) of the Transmission System, namely – Paschimanchal
Vidyut Vitran Nigam Ltd(PVVNL), Dakshinanchal Vidyut Vitran Nigam Ltd
(DVVNL), Purvanchal Vidyut Vitran Nigam Ltd (PuVVNL) and Madhyanchal
Vidyut Vitran Nigam Ltd (MVVNL).
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(c) Certification of Incorporation, Memorandum of Association & Article of
Association of WUPPTCL.
3) The Petitioner has also submitted that:-
a) The Energy Task Force (herein after referred to as “ETF”) constituted by the
Government of Uttar Pradesh (herein after referred to as “GoUP”) has
authorized U.P. Power Transmission Corporation Ltd (hereinafter referred to
as “UPPTCL”) to act as the Bid Process Coordinator (hereinafter referred to
as “BPC”) to carry out the tariff based competitive bidding process for the
selection of the Transmission Service Provider (hereinafter referred to as
“TSP”) to establish the Transmission System on BOOT basis under ‘Tariff
based Competitive Bidding Guidelines for Transmission Service’ and
‘Guidelines for Encouraging Competition in Development of Transmission
Projects’ (hereinafter referred to as the “Guidelines”), issued by GOI in
section 63 of the Act.
b) The BPC prepared the Request for Qualification (hereinafter referred to as
“RFQ”), Request for Proposal (hereinafter referred to as “RFP”) and
Transmission Service Agreement (hereinafter referred to as “TSA”)
documents based on the Standard Bid Documents of GOI with certain
deviations and these deviations were approved by the Commission. The
BPC also prepared Share Purchase Agreement (hereinafter referred to as
“SPA”) and Connection Agreement (hereinafter referred to as “CA”)
documents which were approved by the Commission.
c) Western UP Power Transmission Company Ltd. (hereinafter referred to as
the “WUPPTCL or “Petitioner”) was incorporated on 11th September, 2009
under the Companies Act, 1956 by the BPC/UPPTCL as its wholly owned
subsidiary to act as Special Purpose Vehicle (SPV) to initiate the activities of
the Project and to subsequently act as TSP after being acquired by the
Successful Bidder.
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d) The BPC initiated the bidding process with the publication of Bid Invitation for
Qualification, in response to which and after evaluation, BPC shortlisted two
bidders namely Isolux Corsan Concesiones SA and Cobra Instalactiones y
Servicios SA as qualified bidders as per the specified criteria.
e) After shortlisting at RFQ stage, one of the qualified bidders, Cobra
Instalactiones y Servicios SA applied on 10-08-10 for the change of
composition from ‘Bidder’ to ‘Bidding Consortium’ in association with Megha
Engineering & Infrastructure Ltd as per the provisions of RFQ & RFP. The
BPC approved this change in composition vide letter dated 25-09-10.
f) Both the qualified bidders submitted their bids comprising of both non-
financial and financial parts on 20-11-10. BPC opened the non-financial bid
on the same day in presence of the representatives of both the bidders. After
completion of responsiveness check of the non-financial bids of both the
bidders, the BPC opened the financial bids on 25-03-11 in which Cobra-
MEIL Consortium has emerged out as the lowest quoted bidder with the
quote levelized transmission charge of Rs 8905.37 million per annum.
g) The BPC held the negotiations with the lowest quoted bidder, Cobra-MEIL
Consortium on 30-03-11 and the Consortium gave a discount of approx
1.74% to arrive at a levelized transmission charge of Rs 8750 million per
annum vide their letter dated 30-03-11.
4) Subsequent to the process of two-stage tariff based competitive bidding
conducted by BPC, Cobra Instalactiones Y Servicios S.A. & Megha Engineering
and Infrastructure Ltd Consortium has been evaluated as Successful Bidder and
in this regard a Letter of Intent (LOI) has been issued by the BPC on 31-05-11.
Thereafter the Successful Bidder acquired WUPPTCL (the project specific SPV)
and signed a Share Purchase Agreement on 22-09-11. The Transmission
Service Agreement has also been signed on 27-12-11 between the Petitioner
and the LTTCs of the Transmission System.
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5) After issuance of LOI dated 31.05.2011by UPPTCL, CMD UPPTCL intimated
the Commission vide letter dated 21.07.2011 the bidding documents (RFQ &
RFP) were made as per the Standard Bid Documents of Ministry of Power, GOI,
after incorporating the provisions contained in the Commission’s orders and
certified that the bid process & bid evaluation has been carried out in conformity
with tariff based competitive bidding guidelines for transmission service of GOI
and tariff quoted by all the bidders have been made public and put on the official
website www.upptcl.org.
6) The Commission heard the above petition on 21-02-12 and directed UPPTCL
and WUPPTCL vide its order dated 19-03-12, to submit certain documents to
the Commission, including the Certification by the Bid Evaluation Committee
(hereinafter referred to as ”BEC”) required under Para 12.4 of the Guidelines,
within one month from the date of the order and decided to fix the next date of
hearing in the matter after filing of complete documents by both the parties.
7) The Commission again directed UPPTCL and WUPPTCL vide its order dated
21-05-12 to submit the remaining documents within two weeks from the date of
the order as some documents were not submitted by the parties. A meeting with
UPPTCL had also been convened by Secretary UPERC on the directions of the
Commission to discuss the pending issues in this petition and the minutes of
meeting dated 26-06-12 had been issued.
8) UPPTCL submitted the copies of the following documents to the Commission
vide its letters dated 10-04-12, 07-06-12 and 24-07-12:-
a) UP Govt. OM no 491 dated 07-09-09 authorizing the Energy Task Force
of GoUP to act as Empowered Committee.
b) UP Govt. OM no 492 dated 07-09-09 for nomination of UPPTCL to act as
the Bid Process Coordinator (BPC) to process the bids for selection of
developer to establish the Transmission System under PPP.
c) UP Govt. OM no 493 dated 07-09-09 for formation of Bid Evaluation
Committee (BEC), comprising of Industrial Development Commissioner
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(as Chairman of BEC), Principal Secretary (Law), Principal Secretary
(Finance), Principal Secretary (Planning), Secretary (Energy), Chairman
UPPTCL, MD UPPTCL (as Convener of BEC), Member Central Electricity
Authority, Director (Finance) UPPTCL and Executive Director
(Transmission) UPPTCL.
d) OM No 557 dated 30-10-09 of Chairman UPPTCL for formation of bid
opening committee comprising of Executive Director (Transmission),
Chief General Manager (Finance), Chief Engineer (765kv),
Superintending Engineer (765kv) to open RFQ & RFP bids.
e) Intimation to the Commission by the Executive Director UPPTCL for
initiation of bidding process through letter dated 02-09-09.
f) Publication of the combined RFQ & RFP notice in ‘The Economic times’
(New Delhi, Mumbai and Bangalore), Times of India (New Delhi,
Mumbai), Hindustan times (New Delhi), Business Standard (New Delhi
and Mumbai) and Financial Express (New Delhi and Mumbai) through
letter dated 10-08-09 of UPPTCL.
g) Intimation of the combined RFQ & RFP notice to the Embassy of
Australia, Canada, China, France, Germany, Italy, Japan, New Zealand,
Russian Federation, Spain, South Africa, Switzerland, UAE, UK & USA
through letter dated 12-08-09 of UPPTCL.
h) Letter dated 29-06-11 of CMD UPPTCL to MDs of the distribution
companies (MVVNL, PVVNL, DVVNL & PuVVNL) for nomination to sign
TSA on behalf of LTTCs.
i) Authorization of the distribution companies to sign TSA.
j) Assessment of the responses to RFQ dated 18-11-09, draft assessment
report dated 18-02-10 and assessment report of March 2011 for financial
proposal of RFP.
k) Minutes of meeting of Bid Evaluation Committee (BEC) held on 23-02-10
and 30-03-11.
l) Minutes of Meeting of Energy Task Force (ETF) held on 24-02-10,
13-07-10, 26-11-10, 28-02-11 and 30-03-11 under the Chairmanship of
Chief Secretary, GoUP.
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m) Letter no 452 dated 26-05-11 of Secretary, GoUP to CMD UPPTCL
conveying the decision of the Govt. to award the transmission works
under Package-2 to Cobra-MEIL Consortium at levelized tariff of
Rs 875Cr.
n) Consortium Agreement dated 28-07-10 and its deed of amendment dated
14-09-10.
o) Certificate dated 18-07-12 issued by WUPPTCL, Hyderabad, regarding
its share holding pattern.
p) Certificate dated 18-07-12 issued by Gomti Power Infrastructure Private
Limited, Hyderabad, regarding its share holding pattern.
q) Certificate dated 14-07-12 issued by Megha Engineering & Infrastructure
Limited, Hyderabad, regarding its share holding pattern.
r) Certificate dated 18-07-12 issued by WUPPTCL, Hyderabad, regarding
its composition of Board of Directors.
s) Certificate dated 23-08-12 issued by Gomti Power Infrastructure Private
Limited, Hyderabad, regarding its composition of Board of Directors.
t) Certificate dated 23-08-12 issued by Megha Engineering & Infrastructure
Limited, Hyderabad, regarding its composition of Board of Directors.
9) The brief contents of the following documents submitted by UPPTCL is as
hereunder:-
a) Assessment of the responses to RFQ dated 18-11-09 and draft assessment
report dated 18-02-10
The consultant M/s Crisil apprised BEC about the key findings and
deficiencies of the responses to RFQ of the four bidders namely L&T
Transco Pvt. Ltd., Isolux Corsan Concesiones SA, Cobra Instalactiones y
Servicios SA & Sterlite vide its report dated 18-11-09; and thereafter on
instructions of BEC, the BPC sought certain clarifications/additional
information from them. Based on such clarifications/additional information
received up to 23-01-10, the consultant evaluated the responses to RFQ
and submitted its report dated 18-02-10 to BEC.
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According to this report, L&T Transco, in its original response to RFQ,
did not submit the documents to meet the technical requirement of at least
one project of Rs 200Cr in transmission sector as specified in RFQ,
however subsequent to clarifications/additional information sought by BPC
from time to time and received upto 23-01-10, the bidder submitted another
project in transmission sector which met the technical requirement of RFQ.
Similarly another bidder, Cobra Instalactiones Y Servicios SA in its
original response to RFQ had submitted its own financials to meet the
financial requirements of Internal Resource Generation (IRG) and Networth
specified in RFQ but it could not meet the Networth requirement of
Rs 1500Cr as specified in RFQ document. Subsequently Cobra in its
clarifications had submitted the financials of its parent company ACS
Servicos for meeting the financial requirements specified in RFQ.
The BPC sought the legal opinion on the subsequent submission of
documents by L&T Transco and Cobra Instalactiones Y Servicios, SA from
Additional Advocate General, Government of U.P. In view of legal opinion
obtained from Additional Advocate General Bid document of Cobra was
considered and found proper by the B.P.C.
b) Minutes of meeting of Bid Evaluation Committee held on 23-02-10
The meeting was held under the Chairmanship of Industrial Development
Commissioner Government of U.P. for finalization of transmission projects
under PPP in specification no ESD/765/4. Vide above minutes, BEC agreed
to the consultant’s report dated 18-02-10 and recommended ETF for
approving Isolux and Cobra as the qualified bidders for the RFP stage while
disqualifying L&T Transco and Sterlite at RFQ stage itself in accordance
with the legal view obtained from Additional Advocate General of UP
c) Minutes of meeting of Energy Task Force held on 24-02-10
The above minutes refers that ETF agreed with the recommendations of Bid
Evaluation Committee and accorded its consent to issue RFP to Isolux
Corsan Concesiones S.A. and Cobra Instalactiones Servicios S.A.
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d) Minutes of meeting of Energy Task Force held on 28-02-10
ETF approved minimum benchmark price for Package-2 as Rs 840.40Cr.
ETF also decided that if the price bid lies within 10% above the minimum
benchmark price then BEC to negotiate with the L1 bidder otherwise if the
price bid lies beyond 10% above the minimum benchmark price then Swiss
Challenge Method to be adopted.
e) Minutes of meeting of Energy Task Force held on 13-07-10
ETF accorded its post-facto approval for formation of the shell companies
namely South East UP Power Transmission Company Limited and Western
UP Power Transmission Company Limited for PPP transmission Package-
1&2.
f) Minutes of meeting of Energy Task Force held on 26-11-10
Vide above minutes ETF had given its consent for not adding the price of
the land of the substations in the acquisition price of the SPV and the same
to be paid separately by the developer. ETF also accorded its post-facto
approval for the amendments of the scope of work on the advice of Central
Electricity Authority (CEA) and formation of Cobra-MEIL Consortium in
accordance with clause 2.2.6.4 of RFQ.
g) Assessment Report of March 2011for financial proposal of RFP
The above report of the consultant states that the levelized transmission
tariff quoted by Cobra-MEIL Consortium was Rs 8905.37 million which was
the lowest and therefore Cobra-MEIL Consortium has been considered as
the L1 bidder followed by Isolux as L2 bidder. However, the quote of the L1
bidder was within10% of the benchmark tariff approved by ETF therefore
Swiss Challenge Method not to be implemented and negotiation to be done
with L1 bidder.
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h) Minutes of meeting of Bid Evaluation Committee held on 30-03-11
The meeting was held under the Chairmanship of Industrial Development
Commissioner Government of U.P. and Principal Secretary (Finance),
GoUP regarding PPP transmission projects (Package-2) in specification no
ESD/765/4. BEC recommended to award Package-2 to Cobra-MEIL
Consortium at the levelized tariff of Rs 875Cr per annum and placed its
recommendations before ETF for further decision in the matter. The minutes
also says that the consultant had presented RFP bid evaluation report
before BEC, according to which the quoted levelized tariff of Cobra for
Package-2 was Rs 890.537Cr which was the lowest and therefore Cobra
was the lowest bidder in Package-2 followed by Isolux. The report further
points out that L1 levelized tariff was within 10% of the benchmark levelized
tariff so in view of decision taken by ETF, there was no need to invoke
Swiss Challenge Method, and BEC may negotiate with L1-bidder. The BEC
negotiated with L1 bidder which agreed to reduce the levelized tariff to Rs
875Cr per annum which was still 4.12% higher than the benchmark
levelized tariff approved by ETF. The minutes further says that in view of
inflation, higher interest rates and the uncertainty about the cost of right of
way etc, the Bid Evaluation Committee accepted the price above 4.12%
over the benchmark price and placed its recommendations before ETF.
i) Minutes of meeting of Energy Task Force held on 30-03-11
ETF while agreeing with the recommendations of BEC, accorded its consent
to award Package-2 to Cobra-MEIL Consortium at levelized tariff of Rs
875Cr and directed to accord the approval of the Cabinet also before
executing any agreement with the bidder.
10) WUPPTCL submitted the copies of the following documents to the Commission
vide its letters dated 06-04-12 and 29-05-12:-
a) Certification of Incorporation, Memorandum of Association, Article of
Association and Certificate of Commencement of Business of WUPPTCL.
b) Extract of minutes dated 03-10-11 of Board of Directors of WUPPTCL.
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c) Extract of minutes dated 24-12-11 of Board of Directors of WUPPTCL for
authorization to sign Transmission Service Agreement.
d) Extract of minutes dated 03-09-11 of Board of Directors of Megha
Engineering & Infrastructure Ltd (MEIL) for authorization to sign Share
Purchase Agreement.
e) Extract of minutes dated 03-09-11 of Board of Directors of Gomti Power
Infrastructure Private Limited for authorization to sign Share Purchase
Agreement.
f) Letter dated 27-03-12 of WUPPTCL to Ministry of Corporate Affairs,
Registrar of Companies, Kanpur.
g) Electronic copies of Form-32 filed by WUPPTCL in Registrar of
Companies.
11) Conformity certificate dated July, 2011 has been submitted to the Commission
issued by Shri Navneet Sehgal, CMD, UPPTCL stating that the Bid evaluation
and bid processing has been done in conformity with tariff based competitive
bidding guidelines for transmission service. Subsequent to the submission of a
conformity certificate of Sri Navneet Sehgal, CMD UPPTCL in July’11, another
conformity certificate dated 09-08-12 of Sri Sanjay Prasad, Secretary, GoUP,
has been submitted to the Commission in this regard. Since these certificates
were not in accordance with the guidelines of Government of India, the
Commission directed UPPTCL, vide letter dated 05-09-12, that instead of above
certificate from CMD, UPPTCL and Sri Sanjay Prasad, Secretary Energy,
Government of U.P., the certification of Bid Evaluation Committee is required to
process the case; therefore the same may be submitted at the earliest.
12) The Commission observed that in spite of its clear directions to UPPTCL vide
orders dated 19-03-12 & 21-05-12 and subsequent letters dated 08-08-12 &
05-09-12; the certification by the Bid Evaluation Committee was not submitted.
The Commission also observed that apart from the non-submission of the
Certification by BEC, there are some more issues which need to be addressed.
In light of these facts, the Commission decided to review all the pending issues
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through a hearing and accordingly issued a notice dated 01-11-12 to all the
concerned parties (WUPPTCL, UPPTCL, PVVNL, DVVNL, PuVVNL and
MVVNL) for hearing in the matter on 20-11-12.
13) Sri Avdhesh Kumar Verma, Chairman, Rajya Vidyut Upbhokta Parishad and the
member of State Advisory Committee submitted a representation on 19-11-12
and sought the Commission’s permission to attend the hearing on 20-11-12.
Sri Verma also raised the following points:-
“………………..
1- tSlk fd vki voxr gh gksaxs fd izns”k dk ÅtkZ foHkkx@;w0ih0 ikoj VªkUleh”ku dEiuh }kjk Vs.Mj fMlkbM gks tkus ds ckn Vh,l,@vkj0,Q0D;w0 ds izkfo/kkuksa ds foijhr tkdj ,lh,lvkj ewt@cj”keht ¼ACSR Mose & Bersimis) d.MDVj dh txg fVªiy ,lh ¼AAAC½ d.MDVj yxkus ds fy;s cnyko gsrq ,d desVh dk xBu fd;k x;k gS tks Hkkjr ljdkj }kjk cuk;h x;h fofMax xkbM ykbu dh /kkjk 9-6-4 o dsUnzh; lrZdrk vk;ksx ds izkfo/kkuksa ds foijhr gS ,sls esa VSfjQ ,Mki”ku dh dk;Zokgh ij fopkj djuk fcfMax xkbM ykbu ds f[kykQ gSA
2- Hkkjr ljdkj }kjk cuk;h x;h VSfjQ csl dEiVsfVc fcfMax xkbM ykbu dh /kkjk 12-4 ftlesa
;g izkfo/kkfur gS fd ^^12.4 The final TSA along with the certification by the bid
Evaluation Committee shall be forwarded to the appropriate Commission for adoption of
tariffs in terms of Section 63 of the Act.” bl izdkj ;g iwjh rjg ls fl) gksrk gS fd tc rd vk;ksx }kjk Bid Evaluation Committee ls izkIr lkVhZfQdsV dk v/;;u xEHkhjrk ls ugha gks tkrk ;g fl) gksuk fd fcfMax izfdz;k iwjh rjg ls ikjn”khZ Fkh vFkok ugha laHko ugha gS ij fo”ks’k /;ku nsuk gksxkA
3- fo|qr vf/kfu;e 2003 dh /kkjk 63 ftlds rgr /kkjk 62 ds vUrfoZ’V vk;ksx dks fo|qr nj dks
vaxhdkj djuk gS ijUrq ;g ns[kk tkuk vfuok;Z gS fd dsUnzh; ljdkj }kjk cuk;h x;h fcfMax xkbM ykbu dk ikyu gqvk gS vFkok ugha rHkh ikjn”khZ izfdz;k dk [kqyklk gksxk ,sls esa orZeku esa py jgh iwjh izfdz;k Lor% ;g crkrh gS fd izfdz;k ikjn”khZ ugha gS ,sls esa vk;ksx dks mijksDr fcUnqvksa ij /;ku nsuk vko”;d gSA
………………..”
Shri Verma also submitted another representation on 07-02-2013 on the
similar issues.
Similarly an intervener application on behalf of Sri Rama Shankar Awasthi has
been filed on 20-11-12. The following points have been raised by Sri Awasthi in
his application:
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“……………….
a. as per transmission service agreement M/S Cobra Instalaciones y.servicious
S.A., is the lead member of Cobra- MEIL consortium. The commission
should examine whether M/s cobra is still a lead member or not.
b. That as per clause no 9.6.4. of tariff based competitive bidding guidelines for
transmission services approved by Ministry Of Power, GOI, TSA proposed to
be entered with the selected bidder. The TSA proposed in the RFP stage
may be amended based on the inputs received from bidders during the pre
bid conference and it will be made available to all RFP bidders. No further
amendments shall be carried out in the TSA.
As per my knowledge based upon daily news paper that above company are
pursu to State govt and UPPTCL FOR change of ACSR Moose, berisim
conductor to AAC Conductor. So it is a clear cut violation of TSA guidelines.
c. That as per clause no 12.4. of tariff based competitive bidding guidelines for
transmission services approved by Ministry of Power, GOI, The final TSA
along with the certification by the Bid Evaluation Committee shall be
forwarded to the Appropriate Commission for adoption of tariffs in terms of
Section 63 of the Act.
As per my knowledge Bid Evaluation Committee are not forwarded Certificate
to commission.
d. That as per consortium approved at present cobra have 84% stake holding
and Megha have 16% stake holding and lead member not have stake
holding below than 51% upto validity of TSA. Please commission examine
that this stake holding is continue or change and if it is change then new
stake holding.
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e. That the issues involved in the aforesaid proceedings is to public importance.
The State exchequer has to suffer huge loss due to the non compliance of
the mandatory provisions of law.
f. That in view of the aforesaid facts and circumstances, it is expedient in the
interest of justice that this Hon’ble Commission may graciously be pleased to
allow the aforesaid application and permit the applicant to have say in the
aforesaid matter and further the applicant may be permitted to file detailed
and comprehensive objection in the aforesaid matter.
……………..”
The Commission observed that the above issues raised by Sri Avadhesh Kumar
Verma and Sri Rama Shankar Awasthi are mainly concerned with the use of
conductor in the project and submission of certification by Bid Evaluation
Committee required under tariff based competitive bidding guidelines of GOI.
The issue of use of the conductor in the project under this petition has already
been decided by the Commission vide its order dated 19.03.2012 in petition no.
782/2012 of WUPPTCL, in which the Commission refused to allow an option for
use of Bersimis Equivalent & Moose Equivalent AAAC Conductor in addition to
ACSR Bersimis and ACSR Moose conductor in the Project. In light of
Commission’s order dated 19.03.2012, the issue of conductor, raised by Sri
Verma and Sri Awasthi, does not apply to this petition.
The Commission also directs UPPTCL & WUPPTCL to file their point-
wise replies on the above issues, raised by Sri Verma and Sri Awasthi, with a
copy to them also, within two weeks from the date of this order.
However, the issue of certification by Bid Evaluation Committee is being
taken up by the Commission in the following paras of this order.
14) During the hearing, the Commission observed that none from the four
distribution companies – PVVNL, DVVNL, MVVNL and PuVVNL participated.
The Commission expressed its concern on their absence especially in the light
of the fact that the Transmission System, under the present context, is being
developed for the distribution companies only, who are its Long Term
Page 17 of 31
Transmission Customers (LTTCs). It is the distribution companies who jointly
signed the Transmission Service Agreement (TSA) with WUPPTCL and from
whom the costs would be recovered during the entire term of 35 years of TSA.
15) The Commission also expressed its displeasure as the Director UPPTCL did not
participate in the hearing. The Commission inquired from the present members
of UPPTCL whether they are conversant with the issues of the petition and after
obtaining an affirmative reply from them, the Commission initiated the
proceedings.
16) As few issues of similar nature were already discussed during the previous
hearing on the same day in another petition 797/2012, in presence of the same
officers of UPPTCL and the common advocate Sri Ganesan, therefore the
Commission did not discuss them in detail during the hearing in this petition. All
contents and directions on such issues are being reiterated and shall be
applicable to this petition as well.
17) During the hearing the Commission took up the following issues.
a) Certification by Bid Evaluation Committee
The Commission reiterated its earlier stand for submission of Certification
by Bid Evaluation Committee by quoting the provisions of section-63 of the
Act and para-12.4 of the Guidelines. The tariff adoption U/s 63 of the Act
refers to the bidding process in accordance with the guidelines issued by
the Central Government and Para-12.4 of ‘Tariff based Competitive-bidding
Guidelines for Transmission Service’ of GOI requires final TSA along with
the Certification by the Bid Evaluation Committee to be forwarded to the
Commission for adoption of tariffs. In light of above and its earlier orders
dated 19-03-12 & 21-05-12, the Commission inquired why the required
Certification of BEC has not been submitted so far by UPPTCL.
Page 18 of 31
Sri Chaudhry of UPPTCL replied that two certificates, in this regard, have
been submitted to the Commission; one issued by CMD UPPTCL in July’11
and another issued by Secretary (Energy) GoUP in Aug’12. He further
added that the State Government had formed the Bid Evaluation
Committee. They convened all the meetings and conveyed all its decisions
to UPPTCL. We played no role in all these process. He further submitted
that Secretary (Energy) in his certificate dated 09-08-12 has certified that
the bid process & bid evaluation took place as per the Guidelines issued by
Ministry of Power, GOI. At present the Bid Evaluation Committee is not in
existence after the evaluation of bids. We have submitted all the relevant
documents e.g. - BEC minutes, ETF minutes etc. to the Commission,
therefore the certificate issued by Secretary (Energy) may kindly be
accepted to proceed with the adoption of the Tariff.
In reference to letter dated 9.8.2012 from Shri Sanjay Prasad, Secretary,
Govt. of U.P. with a copy to M.D., UPPTCL regarding conformity certificate
Commission informed M.D., UPPTCL vide its letter dated 5.9.2012 that the
certification of Bid Evaluation Committee instead of letter dated 9.8.2012 of
Secretary, Govt. of U.P. is essential.
The Commission inquired categorically why UPPTCL, in its capacity of BPC,
could not obtain the certification from BEC. UPPTCL was unable to
substantiate with proper reasonability in this regard. On the instructions of
the Commission, Sri Gupta of UPPTCL read the provision of section 63 of
the Act, the relevant clause of the guidelines of GOI and the O.M. No 493
dated 07-09-09 of GoUP, issued by Secretary (Energy) for formation of Bid
Evaluation Committee, as hereunder:-
Section 63 of the Act for Determination of tariff by bidding process
“Notwithstanding anything contained in section 62, the Appropriate
Commission shall adopt the tariff if such tariff has been determined through
Page 19 of 31
transparent process of bidding in accordance with the guidelines issued by
the Central Government.”
Para 12.4 of ‘Tariff based Competitive-bidding Guidelines for Transmission
Service’ of GOI
“The final TSA along with the certification by the Bid Evaluation
Committee shall be forwarded to the Appropriate Commission for adoption
of tariffs in terms of Section 63 of the Act.”
lfpo] mRrj izns”k “kklu] ÅtkZ ¼futh fuos”k½ izdks’B }kjk tkjh dk;kZy; Kki la[;k
493 fnukad 07&09&09
**X;kjgoha iapo’khZ; ;kstuk esa ikjs’k.k Lda/k dh ifj;kstukvksa dk fØ;kUo;u ih0ih0ih0 fof/k }kjk djkus gsrq fodkldrkZ ds p;u gsrq vkekaf=r fufonk izi=ksa ¼vkj0,Q0D;w0 o vkj0,Q0ih0½ ds vkWadyu lfefr dk xBu fuEuor fd;k tkrk gS%&
1- voLFkkiuk ,oa vkS|ksfxd fodkl vk;qDr] m0iz0 “kklu ¼v/;{k½ 2- izeq[k lfpo] U;k;] m0iz0 “kklu ¼lnL;½ 3- izeq[k lfpo] foRr] m0iz0 “kklu vFkok muds izfrfuf/k ¼lnL;½ 4- izeq[k lfpo] fu;kstu] m0iz0 “kklu ¼lnL; ½ 5- lfpo] ÅtkZ] m0iz0 “kklu ¼lnL; ½ 6- v/;{k] m0iz0 ikoj VªkWalfe”ku dkjiksjs”ku fy0 ¼lnL; ½ 7- izcU/k funs”kd] m0iz0 ikoj VªkWalfe”ku dkjiksjs”ku fy0 ¼lnL;@la;kstd½ 8- lnL;] dsUnzh; fo|qr izkf/kdj.k vFkok muds izfrfuf/k ¼lnL; ½ 9- funs”kd] foRr m0iz0 ikoj dkjiksjs”ku fy0 ¼lnL; ½ 10- vf/k”kklh funs”kd ¼ikjs’k.k½] m0iz0 ikoj VªkWalfe”ku dkjiksjs”ku fy0 ¼lnL;@lgla;kstd½
The Commission clarified UPPTCL that as per the bidding guidelines
of GOI, the Certification by Bid Evaluation Committee is essential to
proceed for adoption of Tariff. The Commission is of the view that although
it was the responsibility of the members of the Bid Evaluation Committee to
certify the transparency in the bid evaluation process (RFQ & RFP) but this
does not bar UPPTCL from its responsibility as the Bid Process Coordinator
which had to necessarily obtain the required certification from the Bid
Evaluation Committee. The Commission expressed its displeasure in the
manner UPPTCL played its role of Bid Process Coordinator who could not
Page 20 of 31
obtain the certification of BEC especially in the light of the fact that the
requirement of said certification has been effective since Oct’08 whereas
the bidding process of Package-2 got completed three years thereafter. The
Commission considered it as a very serious lapse on the part of UPPTCL.
In view of above, the Commission directs UPPTCL to submit the
Certification by Bid Evaluation Committee, (which is mandatory
requirement) within two weeks from the date of this order. The Commission
also clarified that if the required certification is not submitted within the said
time period, UPPTCL shall be held responsible for any delay in adoption of
Tariff.
b) Clause 19.2.3 of TSA Clause 19.2.3 says that in case of any change in ownership of WUPPTCL,
the new owner/consortium must fulfill the technical requirement and
according to the directions of the Commission vide its order dated 15-09-10,
the technical criteria was to be decided mutually by UPPTCL and the
successful bidder during pre-award discussions. Accordingly the clause
19.2.3 of TSA has been finalized as hereunder:-
Clause 19.2.3 TSA
“ …………
In case of any change in ownership, the new owner/consortium must fulfill
the minimum technical requirement as specified below:
A) In case of change in ownership until COD+2 years, the new owner /
consortium shall have at least the same technical requirements than the
bidders were required to have at the RFQ stage to be qualified.
B) After COD+5 years the new owner / consortium shall demonstrate
capacity to operate Transmission Lines & substations achieving the
stipulated standards of performance either himself or through a contractor
who have atleast 10 years experience of maintaining 765kv substations
and 400kv lines. In case of persistent failure to deliver the stipulated
performance the LTTC will have a right to terminate the TSA after giving
one month notice.”
Page 21 of 31
The Commission pointed out that there is a gap of three years between
COD+2 & COD+5. The Commission referred to the review petition 691/2010
filed by UPPTCL vide which UPPTCL added the provision of the technical
criteria to be fulfilled by the new owner / consortium in case of any change in
the ownership of WUPPTCL under clause 19.2.3 of TSA,.
The Commission further pointed out that the clause 19.2.1 of TSA says that
“the aggregate equity share holding of the selected bidder in the issued and
paid up equity share capital of WUPPTCL shall not be less than (a) 51%
upto a period of 2 years after COD of the Project; and (b) 26% for a period of
3 years thereafter”. In view of above clause of TSA, if the aggregate equity
share holding of the selected bidder in the issued and paid up equity share
capital of WUPPTCL shall not be less than 26% upto a period of 5 years
after COD of the project then the selected bidder shall be the part of
WUPPTCL upto the five years after COD of the Project. Therefore any exit of
the selected bidder from WUPPTCL will come up only after (COD+5) years
and hence the technical criteria to be fulfilled by the new owner / consortium
in case of any change in the ownership of WUPPTCL may arise only after
(COD+5) years. In light of above facts, the Commission asked UPPTCL to
clarify the issue.
Sri Chaudhry explained that in accordance with the provision of clause
19.2.1, the selected bidder has to retain 51% shares of the company till
(COD+2) years and 26% for a period of 3 years thereafter. Further clause
19.2.3 says that if there is a change in ownership before COD itself and till
(COD+2), all the technical & financial conditions, defined in the RFQ
document, have to be fulfilled by the new owner. If the ownership changes
after (COD+5) then the new owner may not have the same qualifications as
defined in RFQ. It can be interpreted like this: the different technical
requirements of the new owner are mentioned for (a) upto (COD+2) years
and (b) after (COD+5) years. It means the ownership cannot be changed
between (COD+2) and (COD+5) years.
Page 22 of 31
WUPPTCL submitted that TSA has been signed and was approved by the
Commission and cannot be changed. If there is no dispute between the
concerned parties - UPPTCL & WUPPTCL over this clause, why this issue is
being taken up by the Commission. WUPPTCL requested that this issue
should be dealt in a separate proceeding with a notice to the parties.
The Commission clarified that it is an issue which was to be decided by
UPPTCL and the selected bidder during pre-award discussions. The issue
got finalized during pre-award and accordingly TSA has been amended and
signed by all the parties. The issue came up to the knowledge of the
Commission after the signing of TSA documents and then only the
Commission observed some inconsistency in the clause. WUPPTCL
reiterated its stand that when both the parties agree to it issue need not be
required to be raised again.
The Commission was not convinced with the arguments of WUPPTCL and
decided that it cannot leave any ambiguity in the documents. As this clause
was finalized by the BPC, therefore the Commission directs UPPTCL to file
its reply within two weeks from the date of this order.
c) Schedule-10 of TSA As per TSA document, the entire bid (both financial and non-financial bids) of
the Selected Bidder is required to be attached under Schedule-10 of TSA.
As the copy of TSA had been enclosed with the petition, the Commission
went through it and made the following observations attached with TSA
Schedule-10:-
I) Only the originally quoted transmission charges were attached by BPC
under TSA schedule-10, whereas the LOI dated 31-05-11 indicated that
some negotiation with the L1 bidder (Cobra-MEIL Consortium) also took
place during the bidding process and thereafter the consortium submitted
Page 23 of 31
the revised transmission charges of 35 years corresponding to the
levelized tariff of Rs 875Cr/year. Since the revised transmission charges
quoted by the L1 Bidder on the basis of which LOI has been issued by
BPC and it has not been made the part of TSA schedule-10, therefore
there is an inconsistency between TSA schedule-10 and TSA schedule-6.
In view of such inconsistency, the Commission is of the opinion that the
revised transmission charges also should have been made the part of
TSA schedule-10 under financial bid.
UPPTCL replied that the revised transmission charges were quoted by
Cobra Instalactiones Y Servicios S.A, New Delhi vide its letter dated
31-05-11. UPPTCL vide its letter dated 28-05-11 in this regard asked
Cobra to re-submit the negotiated year-wise non escalable transmission
charges for 35 years based on 1.74% discount to match the negotiated
levelized tariff of Rs 8750 million/year. This has already been submitted
to the Commission vide letter dated 24-07-12. UPPTCL further added
that both the above documents have been made the additional
documents to TSA vide letter dated 04-09-12 and copy of this letter has
been sent to WUPPTCL and all the four discoms.
II) An unsigned letter dated 22-10-10 of Registrar of Companies (RoC) has
been made the part of TSA Schedule-10 under non-financial bid which
was allowing change of name from ‘Cobra Power Infrastructure Private
Limited’ to ‘Gomti Power Infrastructure Pvt. Limited’.
UPPTCL replied that necessary clarifications have already been
submitted to the Commission vide letter dated 24-07-12 according to
which Gomti Power Infrastructure Pvt. Limited, which is a subsidiary of
Cobra Instalactiones Y Servicios S.A and is the investor in WUPPTCL on
behalf of the consortium, was originally incorporated in the name of
Cobra Power Infrastructure Private Limited. Before submission of bid,
Cobra Power Infrastructure Private Limited applied in RoC on 13-10-10
for change of its name to Gomti Power Infrastructure Pvt. Limited. RoC
Page 24 of 31
vide its electronic confirmation dated 22-10-10 intimated its no objection
and the same was submitted with the bid. However, formal revised
certification of incorporation dated 20-11-10 duly signed by RoC, was
submitted by the consortium subsequently vide their letter dated
02-12-10. UPPTCL further added that RoC certificate dated 20-11-10 and
UPPTCL letter dated 02-12-10 have been made the additional
documents to TSA vide letter dated 04-09-12 and copy of this letter has
been sent to WUPPTCL and all the four discoms
III) In view of UPPTCL’s reply under para-C(II) that the name of Cobra Power
Infrastructure Private Limited had been changed to Gomti Power
Infrastructure Pvt. Limited by Registrar of Companies vide its electronic
confirmation dated 22-10-10, the certificate dated 19-11-10 of Grover
Ahuja & Associates attached with TSA Schedule-10 (non-financial),
should have certified Cobra Instalactiones Y Servicios S.A and MEIL as
shareholders of Gomti Power Infrastructure Pvt. Limited instead of Cobra
Power Infrastructure Private Limited.
UPPTCL replied that necessary clarifications have already been
submitted to the Commission vide letter dated 07-09-12 according to
which Cobra Power Infrastructure Private Limited was initially the affiliate
company of Cobra Instalactiones Y Servicios & MEIL Consortium. Cobra
Instalactiones Y Servicios was having 98.86% shares of Cobra Power
Infrastructure Private Limited and MEIL having 1.14% shares. The similar
fact was mentioned in the certificate dated 19-11-10 of Grover Ahuja &
Associates, submitted by the Consortium with RFP non-financial bid.
Since the formal name change from Cobra Power Infrastructure Private
Limited to Gomti Power Infrastructure Pvt. Limited was allowed by
Registrar of Companies on 20-11-10, therefore as on 19-11-10, the
Register of Members & Share Transfer documents contained the name of
Cobra Power Infrastructure Private Limited only with its 98.86% share in
Page 25 of 31
the name of Cobra Instalactiones Y Servicios S.A and 1.14% in the name
of MEIL.
In view of UPPTCL’s reply under para-C(III) & (IV), the Commission
asked UPPTCL to clarify the mismatch in certificates, attached with TSA
schedule-10, issued on the same date (19-11-10) by Grover Ahuja &
Associates and certificate of Equity-Investment by the Consortium, which
could not be replied satisfactorily by UPPTCL.
In view of above, the Commission directs UPPTCL to file its reply under
an affidavit within two weeks from the date of this order.
IV) The certificate of Deloitte, attached with TSA schedule-10, refers to the
board resolution of ACS Servicios regarding investment in SEUPPTCL.
The Commission asked UPPTCL how this document pertaining to
SEUPPTCL has been attached with TSA of Package-2
UPPTCL replied that it was an inadvertent error and intimated that
another certificate of Deloitte referring to the board resolution of ACS
Servicios regarding investment in WUPPTCL has been made the
additional document to TSA vide letter dated 04-09-12 and copy of this
letter has been sent to WUPPTCL and all the four discoms.
The Commission did not agree in the manner UPPTCL unilaterally made
certain documents as the additional documents to TSA vide letter dated
04-09-12 with its copy to WUPPTCL and all the four discoms and therefore
directs UPPTCL to make all such documents, other related correspondences
in this regard and clarifications if any as part of TSA Schedule-10 and get the
amended part of TSA signed by the authorized representatives of all the
concerned parties within two weeks from the date of this order, with a copy
to the Commission.
d) Signing of Share Purchase Agreement (SPA)
Page 26 of 31
In accordance with the contents of approved SPA documents, “SPA” is an
agreement amongst UPPCL, WUPPTCL and the Successful Bidder for the
purchase of 100% shareholding of WUPPTCL, for the Acquisition Price, by
the Successful Bidder. Further, as per LOI dated 31-05-12 issued by
UPPTCL, the Successful Bidder in the Project was Cobra-MEIL Consortium.
Therefore, the Commission is of the view that SPA was required to be signed
only by the three parties - UPPCL, WUPPTCL and Cobra-MEIL Consortium,
whereas it has been observed that SPA was signed by the fourth party -
Gomti Power Infrastructure Pvt. Limited. The Commission also observed that
WUPPTCL in its letter dated 27-03-12 addressed to Registrar of Companies
stated that WUPPTCL was taken over by MEIL and Gomti Power
Infrastructure Pvt Limited (Cobra-MEIL Consortium).
In view of above, the Commission asked who acquired WUPPTCL and
inquired about the role of Gomti Power Infrastructure Pvt Limited to sign
SPA. Both UPPTCL and WUPPTCL were unable to reply satisfactorily.
The Commission considers it as a deviation from the approved SPA
document and directs UPPTCL & WUPPTCL to file their replies under an
affidavit within two weeks from the date of this order.
The Commission also observed that the same person of MEIL has
signed SPA on behalf of Cobra and MEIL both but the board resolution of
Cobra Instalactiones Y Servicios SA for authorization to sign SPA to the
person has not been submitted so far in spite of the directions of the
Commission’s orders dated 19-03-12 and 21-05-12.
In view of above, the Commission directs WUPPTCL to submit the board
resolution of Cobra Instalactiones Y Servicios SA for authorization to sign
SPA under an affidavit within two weeks from the date of this order.
e) Delay in bidding process
(I) As per the Guidelines of GOI, the total time to complete the bidding
process, starting from publication of RFQ to signing of agreements, is
Page 27 of 31
only 240 days; whereas UPPTCL took more than 860 days to complete
the bidding process. The Commission inquired the reasons of this delay.
UPPTCL replied that it was due to the approval of various documents
and procedures required at different levels of decision making bodies.
(II) As per clause 2.4 of RFP documents, the SPA & TSA were required to
be signed within 15 days of issue of LOI. Since LOI was issued on 31-
05-11 and SPA & TSA were signed on 22-09-11 & 27-12-11
respectively, the Commission inquired about the delay in signing of SPA
(after a period of three months) and TSA (after a period of 6 months).
UPPTCL replied that it was due to the time taken by the Successful
Bidder (Cobra-MEIL Consortium)
(III) UPPTCL allowed submission of RFQ bids up to 12-11-09 and RFP bids
up to 20-11-10, which was not in accordance with the directions of the
Commission. The Commission vide its orders dated 15-10-09 &
20-10-09 directed UPPTCL to issue modified RFQ to the bidders within
seven days of the order and next seven days for filing the responses.
Similarly the Commission, vide its orders dated 02-07-10 directed
UPPTCL to issue modified RFP documents within seven days of the
order and next 30 days for submission of RFP bids. Since the modified
RFP & RFP Project Documents had already been issued to the bidders,
the Commission directed UPPTCL vide its order dated 15-09-10 in the
review petition 691/2010, filed by UPPTCL, to make the necessary
modifications in the documents according to the decisions and directions
of the Commission through an amendment within seven days of the
order and issue the amendment to both the bidders within three days
thereafter.
In view of above, the Commission inquired why the submission of RFQ
and RFP bids did not take place as per the orders of the Commission.
UPPTCL replied that submission of RFQ bids was extended on the
requests of the bidders to enable more participants to submit the bids
Page 28 of 31
and submission of RFP bids was extended from time to time and finally
to 20-11-10 on the bidder’s request.
In light of the above replies of UPPTCL and to the fact that the selection
process to establish intra state transmission system through competitive
bidding route under the guidelines of GOI in section 63 of the Act has been
taken up for the first time in the state of Uttar Pradesh, the Commission
decides to consider the above deviations of its orders and the delays at
various stages of bidding and directs both the parties to file their replies
under an affidavit within two weeks from the date of this order. However, the
Commission passes its remarks that all the concerned entities involved
directly or indirectly in the bidding process, should have taken it in a more
serious manner.
f) General Clarifications
(I) The Commission sought clarifications from UPPTCL about the
negotiation with the L1 bidder and placement of LOI on negotiated price,
when there was no such provision in the RFP bid document. UPPTCL
could not reply satisfactorily. The Commission directed UPPTCL to file
its reply within two weeks from the date of this order.
(II) In view of clause 3.4.1.5 of RFP read with para-11(c) of the
Commission’s order dated 02-07-10 and para-7 of the Commission’s
order dated 15-09-10, the Commission sought clarifications from
UPPTCL about non-adoption of Swiss Challenge Method (SCM) even
when the originally quoted L-1 levelized tariff was above the benchmark
cost of the Project. UPPTCL could not reply satisfactorily. The
Commission directed UPPTCL to file its reply within two weeks from the
date of this order.
(III) In respect of Assessment Report of March 2011 on financial proposal of
RFP submitted by UPPTCL, the Commission observed that in 3rd para of
clause 2.5 of the above report, the benchmark tariff for Package-2 has
Page 29 of 31
been wrongly mentioned as Rs 833.76Cr against the correct figure of
Rs 840.40Cr. Further, in the 5th para of the same report, ‘Isolux’ has
been mentioned as ‘L1 bidder’ for Package-2 whereas the correct L1
bidder is ‘Cobra-MEIL Consortium’. As such mistakes occurred in the
consultant’s report which has been considered by the BEC as the base
document for evaluating the RFP bids, therefore the Commission
considers it as ‘careless attitude’ shown by all concerned and directs
UPPTCL to submit its clarification under an affidavit within two weeks
from the date of this order.
(IV) UPPTCL vide letter dated 24-07-12 submitted the Board resolution for
undertaking of the parent company, ACS Servicios Comunicaciones y
Energia S.L.(annexure-8) in two sets and Board Resolution of the
Bidding Company, Cobra Instalactiones Y Servicios S.A. (annexure-8) .
It does not consist of the required board resolution of Cobra
Instalactiones Y Servicios SA for authorization to sign SPA as required
in the directions of the Commission issued vide its orders dated 19-03-
12 and 21-05-12.
Further the above Board resolution undertaking of ACS Servicios
Comunicaciones y Energia S.L and Board Resolution of the Bidding
Company, Cobra Instalactiones Y Servicios S.A., appear to be part of
RFP non-financial bid, submitted by the Consortium. If it is so, they
should have been made the part of TSA Schedule-10 under non-
financial bid. The Commission directs UPPTCL to file its clarification
under an affidavit within two weeks from the date of this order.
(V) The Commission after having gone through the certificate dated 18-07-12
about the Board of Directors of WUPPTCL, observed that even though
Cobra is the lead member of the consortium with 84% equity in
WUPPTCL (through Gomti), but it doesn’t have any representation in the
board of directors of WUPPTCL, whereas the majority share holders of
the other consortium partner (MEIL) are in the board of directors of
Page 30 of 31
WUPPTCL. The Commission directs UPPTCL and WUPPTCL to file its
replies under an affidavit within two weeks from the date of this order.
(VI) The Commission observed that the Board Resolution dated 24-12-11 of
WUPPTCL for authorization to sign TSA, referred to the incorrect date of
SPA. UPPTCL vide letter dated 24-07-12 submitted the Board
Resolution of the same date (i.e. 24-12-11) of WUPPTCL, referring now
to the correct date of SPA.
The Commission directs UPPTCL and WUPPTCL to clarify how the
same board resolution dated 24-12-11 of WUPPTCL, can refer to both
correct and incorrect date of SPA.
(VII) The Commission asked UPPTCL to clarify why the business purpose,
mentioned in Article of Association of WUPPTCL (submitted with the
petition) refers to construction of Thermal Power Projects as well as
Super Thermal Power Projects. UPPTCL admitted that it was due to
some inadvertent typographical error but Memorandum of Association of
WUPPTCL, submitted vide letter dated 24-07-12, mentions the main
objects as EHV lines and substations
g) Submission of more documents
The Commission directed UPPTCL to submit the following documents within
two weeks from the date of this order:-
(I) An affidavit for publishing RFQ & RFP notices on the website of
UPPTCL and the Govt. along with the copies of newspaper cuttings for
publication of NIT with publication date, required under para-9.2 of
guidelines.
(II) An affidavit for opening the RFQ & RFP bids in public and in the
presence of representatives of bidders along with the copy of the
attendance sheet, having details & signatures of persons, present during
the opening of the RFQ & RFP bids, required under para-9.9 of
guidelines.
Page 31 of 31
h) Provisions under Article 3.3 of TSA
The Commission inquired about the status of implementation of Article- 3.3
of TSA and directed both the parties UPPTCL & WUPPTCL to submit their
replies under an affidavit within two weeks from the date of this order.
18) The Commission directs UPPTCL and WUPPTCL to submit all the necessary
documents, as directed by the Commission in Para-17 within two weeks from
the date of this order. The Commission will review the status of the submission
of documents after two weeks and accordingly take a final decision on this
petition.
19) The next date of hearing in the matter, if any, shall be fixed after filing of all
documents and clarifications.
(Meenakshi Singh) (Shree Ram)
Member Member
Place: Lucknow
Dated: 18-03-2013