ANNEXURE-6
Format of INTEGRITY PACT (On plain paper)
This pre-bid pre-contract Agreement, hereinafter called the INTEGRITY PACT,
is made on this day of the month of.............................................................,.
BETWEEN
CEO Prasar Bharati (Broadcasting Corporation of India), Prasar Bharati House,
Copernicus Marg, New Delhi 110001 acting through Deputy Director General
(Content Sourcing) , Prasar Bharati, Doordarshan Bhawan, New Delhi-110001
hereinafter called the “Buyer”, which expression shall mean and include,
unless the context otherwise requires, his successors in office and assigns, on
the one hand,
AND
M/s< >, at address
< > acting through
Sh.< > , hereinafter called the
“APPLICANT”, which expression shall mean and include, unless the context
otherwise requires, his successors in office and assigns, on the other.
PR PREAMBLE
WHEREAS the BUYER proposes to procure Feature Film as < Open Proposal
under NIFFP (License Fee/ Royalty Model) of the Feature Film “ ” >),
hereinafter referred
as “<…………..>” and has floated a NIFFP [NIFFP No.], hereinafter referred
to as the “NIFFP”, and the APPLICANT/ SELLER is willing to offer/ has offered
the <…
...........................................................................................................................................................
>
and the BUYER intends to award a contract / purchase order / work order
for the
< > covered under the NIFFP hereinafter referred to the “CONTRACT”,
AND WHEREAS the APPLICANT is a company incorporated in India under Companies
Act, 1956/2013 or a Partnership registered under Indian Partnership Act, 1932 or
a Limited Liability Partnership (LLP) in India or Government undertaking or a
Government Autonomous body and the BUYER is an Autonomous Organization of
the Government of India performing its functions on behalf of the President of
India.
AND WHEREAS the BUYER has appointed Independent External Monitors
(IEMs) to monitor
The NIFFP process and the execution of the CONTRACT for compliance with the
principles as laid down in this INTEGRITY PACT.
AND WHEREAS to meet the purpose aforesaid both the parties have agreed to
enter into this INTEGRITY PACT, the terms and conditions of which shall also be
read as integral part of the NIFFP document and CONTRACT between the
parties.
NOW, THEREFORE,
To avoid all forms of corruption by following a system i.e. fair, transparent and
free from any influence / prejudiced dealing prior to, during and subsequent
to the currency of the CONTRACT to be entered into with a view to:-
Enable the BUYER to obtain the content < Open Proposal under NIFFP
(License Fee/ Royalty Model) of the Feature Film “ ” > at a competitive
price in conformity
with the defined specifications by avoiding the high cost and distortion any
impact of corruption on public procurement,
And
Enable the APPLICANT to abstain from bribing or indulging in any corrupt
practices in order to secure the CONTRACT by providing assurance to the
BUYER that their competitors will also abstain from bribing and other corrupt
practices,
And
Enable the BUYER to prevent corruption in any form, by its officials by
following transparent procedures.
The parties hereto hereby agree to enter into this INTEGRITY PACT and agree
as follows:
1. Article 1 – COMMITMENTS OF THE BUYER
1.1 The BUYER undertakes that no official of BUYER, connected directly or
indirectly with the CONTRACT/ NIFFP or the BUYER personally or any of his
family members will demand, take a promise for or accept, directly or through
intermediaries, any bribe, consideration, gift, reward, favor or any material or
immaterial benefit or any other advantage from the APPLICANT/ SELLER, either
for themselves or for any person, organization or third party related to the
CONTRACT in exchange for an advantage in the bidding process, bid
evaluation, contracting or implementation process related to the CONTRACT.
1.2 BUYER will, during the pre-contract stage, treat all APPLICANTS alike, and
will provide to all APPLICANTS the same information and will not provide any
such information to any particular APPLICANT/ SELLER, which could afford an
advantage to that particular APPLICANT in comparison to the other
APPLICANTS.
1.3 The officials of the BUYER will report to the Independent External Monitor
(IEM) with a copy to the Chief Vigilance Officer (CVO) any attempted or
completed breaches of the above commitments as well as any substantial
suspicion of such a breach.
1.4 In case any such misconduct on the part of such official(s) of the BUYER is
reported by the APPLICANT to the BUYER with the full and verifiable facts and
the same is prima facie found to be correct by the BUYER, necessary
disciplinary proceedings, or any other action as deemed fit, including criminal
proceedings may be initiated by the BUYER and such a person shall be
debarred from further dealings related to the CONTRACT process. In such a
case, while an enquiry is being conducted by the BUYER, the proceedings
under the CONTRACT would not be stalled, unless considered necessary.
2 Article 2 - COMMITMENTS OF THE APPLICANT
2.1 The APPLICANT commits himself to take all measures necessary to
prevent corrupt practices, unfair means and illegal activities during any stage
of the bidding or during any pre- contract or post-contract stage in order to
secure the CONTRACT or in furtherance to secure it and in particular commits
himself to the following:-
2.1.1 The APPLICANT will not offer, directly or through intermediaries, any
bribe, gift, consideration, reward, favor, any material or immaterial benefit or
other advantage, commission, fees, brokerage or inducement to any official or
family member of the BUYER, connected directly or indirectly with the Biding
Process, or to any person, organization or third party related to the CONTRACT
in exchange for any advantage in the bidding, evaluation, contracting and
implementation of the contract.
2.1.2 The APPLICANT further undertakes that it has not given, offered or
promised to give, directly or indirectly any bribe, gift, consideration, reward,
favor, any material or immaterial benefit or other advantage, commission, fees,
brokerage, or inducement to any official of the BUYER or family member of the
BUYER or otherwise in procuring the CONTRACT or forbearing to do or having
done any act in relation to the obtaining or execution of the CONTRACT or any
other CONTRACT with the Prasar Bharati for showing or forbearing to show
favor or disfavor to any person in relation to the CONTRACT or any other
CONTRACT with Prasar Bharati.
2.1.3 APPLICANT shall disclose the name and address of his agents and
representatives and the Indian APPLICANTS shall disclose his foreign principals
or associates, if any.
2.1.4 APPLICANT shall disclose the payments to be made by them to agents/
brokers or any other intermediaries, in connection with this NIFFP/CONTRACT.
2.1.5 The APPLICANT further confirms and declares to the BUYER that the
APPLICANT is the original producer / authorised partner of the < > and has
not engaged any individual or firm or company whether Indian or foreign other
than those Para 2.1.3 and Para
2.1.4 above, to intercede, facilitate or in any way to recommend to the BUYER
or any of its functionaries, whether officially or unofficially to the award of the
CONTRACT to the APPLICANT.
2.1.6 The APPLICANT will not collude with other parties interested in the
CONTRACT to impair the transparency, fairness and progress of the bidding
process, bid evaluation, contracting and implementation of the CONTRACT.
2.1.7 The APPLICANT will not accept any advantage in exchange for any
corrupt practice, unfair means and illegal activities.
2.1.8 The APPLICANT shall not use impropriety, for purpose of competition or
personal gain, or pass on to others, any information provided by BUYER as part
of the business relationship, regarding plans, technical proposal and business
details, including information contained in any electronic data carrier. The
APPLICANT also undertakes to exercise due and adequate care lest any such
information is divulged.
2.1.9 The APPLICANT commits to refrain from giving any complaint directly or
through any other manner without supporting it with full and verifiable facts.
2.1.10 The APPLICANT shall not instigate or cause to instigate any third person
to commit any of the actions mentioned above in the sub clause of this
Article2.
2.1.11 If the APPLICANT or any employee of the APPLICANT or any person
acting on behalf of the APPLICANT, either directly or indirectly, is a relative of
any of the officers of the BUYER, or alternatively, if any relative of an official of
the BUYER has financial interest/stake in the APPLICANT‟s firm, the same shall
be disclosed by the APPLICANT at the time of filling of NIFFP.
2.1.12 The term, relative ‟for this purpose would be as defined in Section 2(77)
of the Companies Act, 2013.
2.1.13 The APPLICANT shall not lend or borrow any money or enter into any
monetary dealings or transactions, directly or indirectly, with any employee of
the BUYER.
3 Article 3 - PREVIOUS TRANSGRESSION, IF ANY,
OF THE APPLICANT
3.1 The APPLICANT declares that no previous transgression has occurred in the
last three years immediately before signing of this INTEGRITY PACT with any
other company in any country in respect of any corrupt practices envisaged
hereunder or with any Public Sector Enterprise in India or any Government
Department in India that could justify APPLICANT‟s exclusion from the NIFFP
process.
3.2 The APPLICANT agrees that if it makes incorrect statement on this
subject, he can be disqualified from the NIFFP process or the CONTRACT, if
already awarded, can be terminated for such reason.
3.3 If the APPLICANT can prove that he has resorted/ recouped the damage
caused by him and has installed suitable corruption prevention system, the
BUYER may, at his own discretion, as per laid down organisational procedures,
revoke the exclusion prematurely.
4 Article 4 - SANCTIONS FOR VIOLATIONS
4.1 Any breach of the aforesaid provisions by the APPLICANT or any one
employed by it or acting on its behalf (whether with or without the knowledge
of the APPLICANT) shall entitle the BUYER to take all or any one of the
following actions, wherever required:-
4.1.1 To immediately call off the pre-contract negotiations without assigning
any reason or giving any compensation to the APPLICANT. However, the
proceedings with the other APPLICANT(S) would continue.
4.1.2 The Earnest Money Deposit (in pre-contract stage) and/or Security
Deposit/ Performance Bond (after the CONTRACT is signed) shall stand
forfeited either fully or partially, as decided by the BUYER and the BUYER shall
not be required to assign any reason there for.
4.1.3 To immediately cancel the CONTRACT, if already signed, without giving
any compensation to the APPLICANT.
4.1.4 To recover all sums already paid by the BUYER, and in case of an
Indian APPLICANT with interest thereon at 2% higher than the prevailing Prime
Lending Rate of State Bank of India, while in case of a APPLICANT from a
country other than India with Interest thereon at 2% higher than the LIBOR. If
any outstanding payment is due to the APPLICANT from the BUYER in
connection with any other CONTRACT for any other stores,
such outstanding payment could also be utilized to recover the aforesaid sum and
interest.
4.1.5 To encash the advance bank guarantee and performance bond/
warranty bond, if furnished by the APPLICANT, in order to recover the
payments, already made by the BUYER, along with interest.
4.1.6 To cancel all or any other contracts with the APPLICANT. The APPLICANT
shall be liable to pay compensation for any loss or damage to the BUYER
resulting from such cancellation/ rescission and the BUYER shall be entitled to
deduct the amount so payable from the money(s) due to the APPLICANT.
4.1.7 Registration of suppliers and their eligibility to participate in
Procurement Entity’s procurement is subject to compliance with Code of
Integrity for Public Procurement and good performance in contracts.
i. An Applicant shall be debarred if he has been convicted of an offence.
a. Under the prevention of Corruption Act. 1988: or
b. Under the Indian Penal Code or any other law for the time being in force,
for causing a threat to public health as part of execution of a public
procurement contract.
ii. An Applicant debarred under sub-section (i) or any successor of the
Applicant shall not be eligible to participate in a procurement process of any
procuring entity of Prasar Bharati for a period not exceeding three years
commencing from the date of debarment.
iii. Buyer may debar the Applicant or any of its successor, from participating
in any procurement process undertaken by it, or period not exceeding two
years, if it determines that the Applicant has breached the code of integrity.
iv. Prasar Bharati will maintain such list of debarred suppliers which will also
be displayed on its website.
v. The Applicant shall not be debarred unless such Applicant has been
given a reasonable opportunity to represent against such debarment.
4.1.8 To recover all sums paid in violation of this INTEGRITY PACT by the
APPLICANT to any middlemen or agent or broker with a view to securing the
CONTRACT.
4.1.9 In cases where irrevocable Letters of Credit have been received in
respect of any contract signed by the BUYER with the APPLICANT, the same
shall not be opened.
4.1.10 The BUYER will be entitled to take all or any of the actions mentioned at
Paras
4.1.1to4.1.9 of this INTEGRITY PACT also on the Commission by the APPLICANT
or any one employed by it or acting on its behalf (whether with or without the
knowledge of the APPLICANT), of an offence as defined in Chapter IX of the
Indian Penal code, 1860 or Prevention of Corruption Act, 1988 or any other
statute enacted for prevention of corruption.
4.1.11 The decision of BUYER to the effect that a breach of the provisions of
this INTEGRITY PACT has been committed by the APPLICANT shall be final and
conclusive on the APPLICANT. However, the APPLICANT can approach the
IEM(s) appointed for the
purposes of this INTEGRITY PACT
5 Article 5 - INDEPENDENT MONITORS
5.1 THE BUYER has appointed an Independent External Monitor (hereinafter
referred to as “MONITOR”) for this INTEGRITY PACT in consultation with the
Central Vigilance Commission (Addresses and Contact details of the Monitor is:
1. Smt. Meenakshi Mishra, IA &AS
(Retd). E-mail:
pcmishra@[Link].
2. Shri Aloke Pasad, IPS
(Retd). E-mail:
5.2 The task of the MONITOR shall be to review independently and
objectively, whether and to what extent the parties comply with the
obligations under this Integrity Pact.
5.3 The MONITOR shall not be subject to instructions by the representatives
of the parties and shall perform his functions neutrally and independently. He
will report his findings to Chief Executive Officer, Prasar Bharati (CEO,PB).
5.4 Both the Parties accept that the MONITOR has the right to access, without
restriction, all the documents relating to the Project/ procurement, including
minutes of meetings.
5.5 The APPLICANT accepts that the MONITOR has the right to access,
without restriction, all Project documentation of the BUYER including that
provided by the APPLICANT. The APPLICANT will also grant the MONITOR, upon
his request and demonstration of a valid interest, unrestricted and
unconditional access to his Project documentation. The same is applicable to
Subcontractors of the APPLICANT. The MONITOR shall be under contractual
obligation to treat the information and documents of the APPLICANT and his
Subcontractor(s) with confidentiality.
5.6 The BUYER will provide to the MONITOR sufficient information about all
meetings among the parties related to the Project/ procurement provided such
meetings could have an impact on the contractual relations between the
Parties. The Parties will offer to the MONITOR the option to participate in such
meetings.
5.7 As soon as the MONITOR notices, or believe to notice, a violation of this
INTEGRITY PACT, he will so inform the Authority designated by the BUYER with
a copy to CVO, PB and request them to discontinue or take corrective action,
or to take other relevant action. He will also inform separately to CEO, PB with
copy to CVO, PB. The MONITOR can in this regard submit non-binding
recommendations. Beyond this, the MONITOR has no right to demand from the
parties that they act in a specific manner, refrain from action or tolerate
action.
5.8 The MONITOR will submit a written report to the CVO, PB within 4 to 8
weeks from the date of reference or intimation to him by the BUYER or
APPLICANT and, should the occasion arise, submit proposals for correcting
problematic situations.
5.9 If the MONITOR has reported to the CEO, PB and CVO, PB a substantial
suspicion of an offence under the relevant IPC/PC Act and they have not,
within reasonable time taken visible action to proceed against such offence,
the MONITOR may also transmit the information directly to the Central
Vigilance Commissioner
6 Article 6 - FACILITATION OF INVESTIGATION
In case of any allegation of violation of any provisions of this INTEGRITY PACT
or payment of commission, the BUYER or its agencies shall be entitled to
examine all the documents including the Books of Accounts of the APPLICANT
and the APPLICANT shall provide necessary information and documents in
English and shall extend all possible help for the purpose of such examination.
1. Article 7 - LAW AND PLACE OF
JURISDICTION
This Pact is subject to Indian Law. The place of performance and jurisdiction is
the seat of the BUYER.
8 Article 8 - OTHER LEGAL PROVISIONS/ ACTIONS
8.1 The actions stipulated in this Integrity Pact are without prejudice to any
other legal action that may follow in accordance with the provisions of the
extent law in force relating to any civil or criminal proceedings.
8.2 Any dispute or difference arising between the parties with regard to the
terms of this INTEGRITY PACT and / or, any action taken by the BUYER in
accordance with this INTEGRITY PACT or interpretation thereof shall not be
subject to arbitration.
8.3 Both the parties agree that this INTEGRITY PACT has precedence over the
NIFFP/ CONTRACT documents with regard to any of the provisions
covered under this
INTEGRITYPACT.
9 Article 9 – VALIDITY
9.1 The validity of this INTEGRITY PACT shall be w.e.f. the date of its signing
and shall extend up to 5(five) years or during the complete execution of the
CONTRACT to the satisfaction of both the BUYER and the APPLICANT, including
warranty period, whichever is later. For unsuccessful APPLICANTs at the
selection process under the NIFFP / pre-contract stage, this INTEGRITY PACT
shall expire after six (06) months from the date of signing of the CONTRACT.
9.2 Should one or several provisions of this INTEGRITY PACT turn out to be
invalid; the remainder of this Integrity Pact shall remain valid. In this case, the
Parties will strive to come to an agreement to their original intentions.
9.3 If any claim is made/ lodged during the validity period of the INTEGRITY
PACT, the same shall be binding and continue to be valid despite the lapse of
INTEGRITY PACT as specified above.
9.4 The parties hereby sign this INTEGRITY PACT at...........................................on
……………………….
(For & On behalf of the Prasar Bharati)
Office Seal
(For & On behalf of APPLICANT)
(Office Seal)
Place:
………………………
Date:
……………………….
Witness 1:
(Name & Address)
Witness 2:
(Name & Add
