Date.

However, the actual facts with respect to EPC Agreement are again summarized /
reproduced below for your kind consideration & recommendations to Authority please –

1. The above project has been awarded on EPC model to us as a Contractor by the Authority
with terms and conditions as specified in the EPC Agreement (EPCA) which has been
signed on 22nd June, 2017 between both the parties. Construction Period of Project is
730 days (as per Schedule-J), commencing from Appointed Date of the Project.

2. The Performance Securities of Rs. 13.28 Cr & Rs 2.48 Cr, according to the Article 7 of EPC
Agreement, has been submitted to Authority on 28th June, 2017 by the Contractor, i.e.
within the timeline as specified in above Article of EPCA.

3. Hence, from above facts it is evident that the obligations required to be satisfied by the
Contractor as a condition precedent according to Article 7, of EPCA has been satisfied by
the Contractor within the timeline as specified in above Article of EPCA, in the spirit of
timely completion of the work.

4. As define in Article-28 of EPCA, The “Appointed Date” means that date which is later of
following dates –
 30th day of the EPCA date…………………………………………… 21st July, 2017
 Performance Security Submission Date ………………….…..28th Jun, 2017
 Date of 90% availability of land ……..……………….Not satisfied up to till date.
(Note: As on date only 79.63 % of vacant & unencumbered land available
for work to the Contractor)

5. However, in the present case the Competent Authority has unilaterally declared the
Appointed Date of Project as 08.01.2018 on availability of around 30% land (Refer
memo no 50 of CE dated 8th Jan, 2018.).

6. Obligations of the Authority under Clause 4.1.3 (a) – The Authority shall provide to
the Contractor at least 90% Right of Way (ROW) in accordance with the provisions of
Clause 8.2 and 8.3, within a period of 30 days from the date of EPCA. Balance 10% of
land/ROW shall be provided within 90days from the Appointed Date as per sub clause
8.2.2. Further, the said land/ROW shall be free from all Encumbrances as per the
provision of Clause 8.4.

7. Representations and warranties of the Authority under Clause 5.2 (h) - The Authority
represents and warrants to the Contractor that it has procured Right of Way (ROW)

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 such that the Contractor can commence construction forthwith on 90% of the total
length of the Project Highway.

8. Utilities & Trees under Article -9 – It is a matter of record that abnormal delay by the
concern departments for removal/shifting of the same have been occurred which is
beyond the control of the Contractor & the Contractor is entitled to Damages under
clause 8.3.1 as well as EOT under Clause 10.5.

9. The Authority in above subject work has not been able to hand over project length’s
land/ROW to the Contractor for want of various issues like tree cutting clearances, non-
availability of land and other hindrances. These issues had been brought to the notice
of all concerned authorities through various correspondences as well as in all meetings
from time to time, but no fruitful results had been made to hand over project length’s
land / ROW till date. An even issue like unilateral fixing of appointed date by the
Authority is total in disregard of its contractual obligation and Contractor has reminded
the Authority time and again to fulfil its contractual obligations for at least 90%
procurement of vacant & unencumbered land for work. But despite of our various
correspondences to the Authority/AE regarding re-fixing of appointed date, rescheduling
of project mile stones and project completion date, no sincere action has been taken by
the Authority. Due to this Contractor is not able to exhaust its planned resources and
planned financial obligation accordingly. Therefore, delay in Project Completion
Schedule mentioned in Schedule-J of EPCA has occurred in proportionate to delay in land
handing over schedule, as mentioned above.

10.Though Contractor did mobilize all required resources to complete the work within
construction schedule-J and even started working in the areas wherever land was
available, in bits and pieces, to utilize their available resources with the intention that all
contractual requirements will be complied but neither land was made available to fulfil
the conditions of the EPCA nor appointed date was properly fixed. Hence Project
Milestones and project completion schedule set forth in Schedule J and clause 10.3.1
and 10.3.3 cannot be made applicable to the subject of two laning of this Project
Highway until required/proportionate time extensions under clause 10.5 may be
granted by the Authority to make the time as an essence during the currency of the
Project Highway.

11.It is to mention here that the unencumbered and vacant access to the site to the
Contractor on 30th day from signing of EPC Agreement was nil and the position remains
unchanged up to declaration of Appointed Date. First lot of land was made available on
appointed date for 26.85% land against requirements of 90% as mentioned above. Even,
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 land clearance process is still continuing and around 20 % of land availability is still
balance, which should be provided within the 30 days of the signing of EPCA as
mentioned above.

12.Project Completion Schedule – As per Clause 10.3, Construction of the Project Highway
shall be carried out as per Schedule – J of EPCA. The various Project Milestones have
been defined in the aforesaid schedule, which are described as under -
Land Handing over
Construction Schedule
Schedule as per EPC
as per EPC Agreement
Agreement (Clause
S.No Description Dates Days 4.1.3, Schedule-A)
(Schedule - J)

Progress Bill Amt

% Km
(%) (Cr)
1 EPC Agreement Date 22-Jun-17 0
2 30 days from EPCA Date 22-Jul-17 30 90% 60.026
3 Appointed Date 8-Jan-18 0 90% 60.026
4 90 days from AD 8-Apr-18 90 100% 66.696
5 Project Milestone-1 7-Jul-18 180 100% 66.696 10% 26.56
6 Project Milestone-2 8-Jan-19 365 100% 66.696 30% 79.67
7 Project Milestone-3 12-Jul-19 550 100% 66.696 60% 159.35
8 SPCD 8-Jan-20 730 100% 66.696 100% 265.58

13.Vacant and unencumbered access to the site to the Contractor in accordance with the
provisions of EPCA as mentioned in paras 6, 7 & 8 above (i.e. Land Handing Over
Schedule) get delayed significantly & even as on date 90 % working front is not
available to Contractor. Consequently, Project Completion Schedule -J got also delayed
proportionately. Impacts on Schedule Project Completion Date (SPCD) due to various
delays, which are beyond the control of Contractor, are described as under –

Land Handing Delay in

Land actually Affected
over Schedule as terms of
handed over to Land
Description Dates Days per EPC no. of
Contractor /ROW
Agreement days
% Km % Km Km
EPC Agreement
Date 22-Jun-17 0
30 days from EPCA
Date 22-Jul-17 30 90% 60.026 0.00% 0.00 60.03
Appointed Date 8-Jan-18 0 90% 60.026 26.85% 17.911 42.12 170 Days
90 days from AD 8-Apr-18 90 100% 66.696 36.98% 24.661 42.04
Project
Milestone-1 7-Jul-18 180 100% 66.696 58.33% 38.907 27.79
Project
Milestone-2 8-Jan-19 365 100% 66.696 79.63% 53.137 13.56 535 Days

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Project
Milestone-3 12-Jul-19 550
SPCD 8-Jan-20 730

14.It is clear from the above positions that Nil land was available as on 30th days after
EPC Agreement date and only 26.85 % of length of Road was available on the
appointed date against provision of making available at least 90% of total length as
per EPC Agreement. Moreover balance 10% of land i.e. total 100% should have been
available within 90 days after the appointed date i.e. by 8th April, 18 whereas only
36.98 % of land was available on that date. Even on 8th Jan, 2019 (365 days after the
appointed date i. e on 2nd project mile stone stage, only 79.63 % of length was
available and position has not changed up to till date.

15.Also, from the above table, it may be seen that all the contractual obligations &
construction schedule have been delayed equally by 535 days in proportionate to
delay in land handing over schedule, including delay of 170 days for notifications of
Appointed Date. Even, vacant & unencumbered land availability of 90% satisfying the
condition precedent for declaration of Appointed Date has not been achieved up to
till date by the Authority. The Authority’s default as mentioned above shall attract
force majeure clause 21.4 of EPC Agreement apart from the clause 23.2, 23.3 and
other relevant clauses and various circulars / guidelines issued by the MORTH.

16.Further, the stretch-wise and date-wise availability of land / ROW is as under for your
considerations please -

Chainage Total Actual Land Availability (Km)

S.No Length
From To (Km) 8-Jan-18 9-Mar-18 26-Apr-18 29-Jun-18 20-Aug-18 12-Oct-18

1 531+250 536+600 5.35 5.35

2 536+600 538+600 2.00 2.00
3 538+600 540+000 1.40 1.40
4 540+000 542+000 2.00 2.00
5 542+000 542+700 0.70 0.7
6 542+700 553+000 10.30 10.30
7 553+000 558+600 5.60 5.60
8 558+600 559+354 0.75 0.75
9 559+354 561+000 1.65 1.65
10 561+000 561+500 0.50 0.50
11 561+500 561+900 0.40 0.40
12 561+900 562+800 0.90
13 562+800 564+450 1.65 1.65
14 564+450 564+650 0.20
15 564+650 566+000 1.35 1.35
16 566+000 570+000 4.00
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 17 570+000 571+000 1.00 1.00
18 571+000 571+600 0.60
19 571+600 574+800 3.20 3.20
20 574+800 575+600 0.80
21 575+600 577+800 2.20 2.2
22 577+800 578+500 0.70 0.7
23 578+500 579+500 1.00 1.00
24 579+500 581+000 1.50 1.50
25 581+000 582+000 1.00 1.00
26 582+000 583+200 1.20 1.2
27 583+200 584+000 0.80 0.80
28 584+000 584+800 0.80
29 584+800 586+000 1.20 1.20
30 586+000 586+900 0.90 0.90
31 586+900 589+000 2.10
32 589+000 589+900 0.90 0.90
33 589+900 591+000 1.10
34 591+000 592+000 1.00 1.00
35 592+000 593+000 1.00
36 593+000 594+000 1.00 1.00
37 594+000 597+946 3.95 3.95
Total 66.696 20.000 6.750 7.246 7.000 9.250 4.950
Less Hindrance Exists up to till date 2.089 (Tabulated below)
Net Available Land / PROW (Cumm.) 17.911 24.661 31.907 38.907 48.157 53.107
Available Land / PROW (Cumm.) in % 26.85% 36.98% 47.84% 58.33% 72.20% 79.63%

The list of hindrances as mentioned in above table for the aggregate length of 2.089
Km is also tabulated below for your consideration please -

Chainage
S.No Total Length (Km) Remarks
From To
1 573800 573900 0.100 shop, bus shed
2 573980 574030 0.050 trees
3 574050 574075 0.025 wall
4 574100 574170 0.070 fencing with hutment
5 574300 574400 0.100 hutment, tree
6 582170 582183 0.013 shop,
7 591235 591340 0.105 b wall & shop
8 591340 591410 0.070 trees
9 591600 592000 0.040 building
10 593700 594500 0.800 house, farm
11 597000 597120 0.120 shop
12 597500 597946 0.446 farm
13 552440 552480 0.040 shop, building
14 541460 541500 0.040 b wall & shop
15 533080 533150 0.070 bus shed, house
Total Length of hindrances (Km) 2.089

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  It is a matter of facts that above hindrances were exists since commencement
of work and still exists on the site for verifications please.

17.As per the above lists of hindrances as well as land availability up to till date, it can be
observed that apart from 10 stretches where entire ROW is not available, there are
15 other stretches where hindrance is on either carriageway. Such large number of
hindrances have caused serious setback to progress of work as for doing work of
embankment and pavement layers, the machineries have to be frequently shifted
causing additional cost & time. Moreover, the transportation of material &
machineries has to be done after considerable detour and after covering additional
distance to left out the unavailable stretches where land owners did not allow
movement.

18.Due to non-availability of adequate work front we are unable to do work in full swing
and we are incurring heavy cost on account of idle manpower, machineries,
equipment, and material and interest liability on financial cost. It is also to bring to
your notice that also whenever attempt was made by us to do the work in unavailable
stretches in good spirits, land owner / concern departments did not allow the
execution of work and even seized our machineries on several occasions.

19.Material Adverse Effect under Article 28 of EPCA – Therefore, the Contractor is

suffering / facing material adverse effect since commencement of works (30days after
signing of EPC Agreement) to till date in order to facing the additional financial burden
and other severe losses as explained in above paras.

20.However, Contractor has taken the work in all available fronts in piece meals basis
and even encumbered at some stretches with the willingness of successful
completion of the work.

21.Progress of Work & Project Milestone -1 – The Contractor is executing the works on
all available stretches in a significant lengths required for movement of machineries.
Even as on date the Contractor has achieved the Physical Progress of Earthwork /
Subgrade around 35%, while completed the pavement layers up to base course in
around 32% of stretch. Now the Progress on ground has been accelerated due to
availability of some long stretches after clearances of hindrance. It may also be
mentioned here that the Physical Progress achieved during the last month was
recorded around 7 %, while cumulative Physical Progress achieved up to last month
was around 22 % as per certified bills tabulated as under –

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 Cumm. Amt.
S. No RA Bill Physical Progress (%)
Certified (Cr)
1 IPC-1 (july-18) 6.52 2.5%
2 IPC-2 (oct-18) 22.33 8.41%
3 IPC-3 (dec-18) 40.58 15.3%
4 IPC-4 (jan-19) 57.96 21.8%

Hence, the requirements for achieving first Project Milestone as 10 % Physical Progress
has been achieved by the Contractor before IPC -3.

22.SPCD & Corresponding Milestones – From the above submissions, it is clear that the
date of availability of 90% land is a condition precedent for the starting of the
construction period/appointed date (which is to be achieved within 30 days of signing
of Agreement as per the Clause 4.1.3) & as per the Clause 10.3.1 & Schedule-J of EPCA,
730 days is the construction period after 90% land availability. However, up to till date
only around 80% land is available even passing 600 days from signing of EPC
Agreement. Further, since Authority has declared the Appointed Date on availability
of less than 30% of land on its own, it is essential for corresponding Extension of time
(EOT) for completion, provisionally, in order to make time/any period as an essence
during the currency of the Project Highway based on EPC Contract.

23.Therefore, This Notice under Clause 10.5.2 is being issued to the Authority’s Engineer
for recommendations of extension of “Schedule Completion Date” and
corresponding balance milestones in equal days as requested in para 15 above, up to
till date provided balance land is made available, clearance of Hindrance is done,
decision/land for Toll Plaza were made, rest area, base camp for O&M, revision of
Utility Estimate/removal of the same by the concern departments, tree cutting, etc.,
are received by the end of March-2019.

In view of above circumstances, as the delay in execution of the project is not attributable
to the contractor and there is no default on the part of the contractor. However, if
required, it is requested that an Interim Extension of Time for Completion under Clause
10.5 for at least 365 days may please be recommended to the Authority & final decision
on EOT may be taken based on all balance clearance/land availability as explained above.

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