In India, the provisions relating to disclosure are very sparingly used in the contractual documentation, in the absence of settled legal positions on the applicability of statutes to PPPs. Consequently, the contracts provide for only a portion of the information to be available publicly.
| MCA for Development of National Highways - Relevant Clauses on Disclosure • 7.3. Disclosure In the event that any occurrence or circumstance comes to the attention of either party that renders any of its aforesaid representations or warranties untrue or incorrect, such party shall immediately notify the other party of this. Such notification shall not have the effect of remedying any breach of the representation or warranty that has been found to be untrue or incorrect nor shall it adversely affect or waive any right, remedy or obligation of either party under this Agreement. • 45. Disclosure o 45.1. Disclosure of Specified Documents: The Concessionaire shall make available for inspection by any person, copies of this Concession Agreement, the Maintenance Manual, the Maintenance Programme and the Maintenance Requirements (hereinafter collectively referred to as the "Specified Documents"), free of charge, during normal business hours on all working days at the Toll Plaza[s] and Concessionaire's Registered Office. The Concessionaire shall prominently display at [each of] the Toll Plaza[s] and toll booths, public notices stating the availability of the Specified Documents for such inspection, and shall provide copies of them to any person upon payment of copying charges on a 'no profit no loss' basis. o 45.2. Disclosure of Documents relating to safety: The Concessionaire shall make available for inspection by any person copies of all documents and data relating to safety of the project highway, free of charge, during normal business hours on all working days, at the Concessionaire's Registered Office. The Concessionaire shall make copies of these available to any person upon payment of copying charges on a 'no profit no loss' basis. o 45.3. Notwithstanding the provisions of Clauses 45.1 and 45.2, the Government shall be entitled to direct the Concessionaire, from time to time, to withhold the disclosure of protected documents (as defined herein below) to any person in pursuance of the aforesaid clauses. Explanation: The expression 'protected documents' shall mean such of the specified documents or documents referred to in Clauses 45.1 and 45.2, or portions thereof, the disclosure of which the Government is entitled to withhold under the provisions of the Right to Information Act, 2005. |
There is, however, a growing appreciation for the need to disclose critical information to enable an effective project structure. For instance, the Andhra Pradesh Infrastructure Development Enabling Act 2001 provides for disclosure of generic risks.
| Andhra Pradesh Infrastructure Development Enabling Act 2001 - Section On Disclosure 28. Generic Risks Disclosure and its Allocation and Treatment: The Government agency or the local Authority will as far as possible disclose generic risks involved in a project and a list of such generic risks along with allocation and treatment of such generic risks may be provided in the Concession Agreement or other contract to be entered into between the Government agency or the local Authority and the developer. The Government agency or the local Authority will make optimum disclosure of the generic risks, however if any risk is not disclosed due to inadvertence or due to circumstances beyond the control of the Government agency or the local Authority, then this shall not be a ground for any claim, demand or dispute by the developer. |
Usually, the following information will need to be disclosed during the project lifecycle:
• information which is reasonably required for the exercise or performance by either party of its rights or obligations under the agreement;
• information required pursuant to any relevant statutory or regulatory requirements or duties or any relevant terms of the applicable laws or in the public interest; information which is already in the public domain, other than as a result of breach of any terms and conditions of the agreement by the party seeking to make such disclosure;
• list of all generic risks involved in a project along with allocation and treatment of such generic risks;
• project related risks along with their allocation and treatment;
• in-principle approval available for the projects;
• pre-feasibility study report, if it has been prepared;
• feasibility study report, if it has been prepared;
• all bid documents and minutes of pre-bid meetings;
• a summary note on the tender proceedings, the selection process, and the basis for qualification and selection of the private partner;
• major milestones to be achieved, time lines and their status;
• performance of the project and deviations from envisaged parameters if any;
• concession agreement, along with all annexure and schedules;
• other project agreements that have been signed by the preferred bidder and a Government entity in relation to the PPP project, as applicable, such as the State support agreement, substitution agreement, any agreement related to operations, maintenance and development agreement, technical operations agreement (if applicable), land lease agreement, power purchase agreement in case of a power project etc;
• documents related to selection of independent engineers and/or auditors, and any agreement for the appointment of independent engineers and/or auditors;
• reports of the contract management team related to the progress of the project;
• inspection reports and quality reports submitted by the independent engineers;
• documents relating to outside quality inspectors, if appointed;
• records relating to commercial and land developments;
• audited annual report of the project company;
• results of any surveys related to service delivery and user satisfaction, if any;
• termination of the project with reasons/causes for termination;
• method of valuation of residual assets;
• the nature and extent (quantity, time period or amount as appropriate) of :
o rights to use specified assets;
o obligations to deliver or rights to receive specified assets at the end of the concession period;
o renewal and termination options
• Disclosure of certain information may be exempted in certain circumstances. However, the public entity must ensure that information which could harm the country is protected. To this end, the public entity may withhold information in the following situations:
• Where disclosure would be reasonably likely to cause serious harm to national security, international relations, the national economy;
• Where disclosure would be reasonably likely to cause serious prejudice to the effective formulation, development or delivery of Government policy;
• Where disclosure would be reasonably likely to cause serious prejudice to the investigation or prosecution of a crime or the ability to conduct a fair trial, would constitute a contempt of court, is forbidden to be published by a court or tribunal or would facilitate an escape from legal custody;
• Where disclosure would constitute a breach of legal professional privilege or any other fiduciary relationship recognized by the statute;
• Where disclosure would endanger the health or safety of any natural person;
• Where disclosure would seriously prejudice the legitimate commercial or competitive position of the organization or a third party or cause unfair gain or loss to any person or if the information was obtained in confidence from a third party and it contains a trade secret protected by law;
• Where disclosure would constitute an unreasonable invasion of privacy of a person who is not a Government official or where the information is about a Government official but has no relation whatsoever to their official position or duties.