234 Executive Board Meeting of NHA

NHA Executive Boards Confirmed Minutes
NATIONAL HIGHWAY AUTHORITY

Secretariat Section
CONFIRMED MINUTES
Subject:
234th Meeting of the NHA Executive Board held on Apr

22, 2014 at Islamabad
1.
Introduction
1.1.
The 234th meeting of the Executive Board of the National
Highway Authority was held at 1430 hours on Apr 22, 2014 at the
NHA Head Office Auditorium, Islamabad. Mr Shahid Ashraf Tarar,
Chairman NHA presided. List of participants is at Annex-A.
1.2.
The meeting commenced with recitation of verses from the
Holy Quran and Urdu translation.
2.
Opening Remarks - Chairman NHA
2.1.
The Chairman extended warm welcome to the participants
of meeting and informed the Board Members about his activities
throughout the period in view of the ensuing projects, with particular
emphasis on Karachi - Lahore Motorway and China-Pak Economic
Corridor.
2.2.
The Chairman further stressed upon the importance of
Overlay and Modernization of Lahore - Islamabad Motorway (M-2) on
Build-Operate-Transfer (BOT) basis in the wake of financial
constraints. He informed the Board that during discussion and
sharing of the proposal, the Prime Minister of Pakistan has shown his
keen interest for finalization of the proposal with FWO.
234th Meeting, April 22, 2014, Islamabad
3.
Presentation by GM (P&CA) Regarding Award of

Leftover Works of Gawadar - Ratodero Road Project
(M-8)
3.1.
In relation to the decision of 233rd Executive Board
meeting in respect of Additional Agenda Items No I, II & III; the GM
(P&CA) presented the case for award of works for Turbat - Hoshab
Sec-IIA Km (0+000 to 76+250) and Gwadar-Turbat Sec-I Pack-IIB Km
(100+800 to 164+250) of M-8.
3.2.
It was explained that in view of peculiar circumstances of
the project referring to law & order situation in particular and the fact
that only FWO participated and their bid was technically qualified for
Gwadar-Turbat-Hoshab Section (M-8). Moreover, FWO had brought
down the bid cost considerably as a result of series of meetings at
various fora ie Prime Minister of Pakistan, Chief of the Army Staff,
Senate Standing Committees for Communications and Ports &
Shipping.
3.3.
During the previous meeting, the Board accorded
approval for award of the works for Gwadar - Turbat Section-I
Package-IIA Km (47+200 to 100+800) to FWO at their evaluated /
rebated bid price of Rs 4,000,714,728/-, which is 56.47% above the
Engineers Estimates of Rs 2,556,795,894/- based on CSR-2013.
3.4.
The Board, however, in relation to Turbat - Hoshab SecIIA Km (0+000 to 76+250) and Gwadar-Turbat Sec-I Pack-IIB Km
(100+800 to 164+250), decided that FWO should revisit their bid and
the rates be rationalized at par with the aforementioned package ie
56.47% above the Engineers Estimates.
3.5.
The GM (P&CA) further pointed out that FWO adjusted
the bid price for Turbat - Hoshab Sec-IIA and Gwadar-Turbat Sec-I
Pack-IIB. The bid price for Turbat - Hoshab Sec-IIA has been reduced
by FWO from 64.45% to 56.47%. However, for Gwadar-Turbat Sec-I
Pack-IIB; the bid price was reduced from 70.81% to 56.47%, only after
re-appropriation of quantities and in case of no change in quantities;
the bid price would become 63.31% above Engineers Estimate.
3.6.
The Board Members observed that reduction in bid price
is due to change in scope of work (re-appropriation of quantities),
which is not a desirable option.
Decision
3.7.
The Board Members decided that NHA should pursue
with FWO to review the rates and get the bid price reduced at par with
Gwadar - Turbat Sec-I Pack-IIA ie 56.47% or below without reducing
the scope of work.
Note.
In 235th Executive Board meeting of May 22, 2014, during confirmation of

minutes of 234th Executive Board meeting, the Member (Planning) briefed the
Board that in accordance with the aforementioned decision all three contracts
of Gwadar - Turbat - Hoshab Section of M-8 are awarded to FWO having bid
price 56.47% above Engineers Estimate without reducing the scope of work.
The Board approved the said award of works.
Action By
GM (P&CA)
FORMAL BOARD PROCEEDINGS

4.
Agenda Items
4.1.
The Secretary NHA stated that 16 x working papers were
circulated in two volumes. Subject-wise distribution is as follows:-
a.
b.
c.
d.
e.
f.
g.
Item
Confirmation of minutes of 233rd meeting
Finance matter
Planning matters
Construction matters
Aided Projects matters
Operation matter
Secretary NHA
Total
No
1
1
3
5
1
4
1
16
4.2.
The Secretary NHA added that following working papers
will be tabled if permitted by the Board:a. Overlay and Modernization of Lahore - Islamabad
Motorway (M-2) on Build-Operate-Transfer (BOT) Basis.
b. Report of the Executive Board Committee on Elevation

of NHA Employees.
5.
Agenda Item 1
Confirmation of Minutes - 233rd Meeting of the
Executive Board Held on Mar 20, 2014
5.1.
The Secretary NHA solicited confirmation of minutes of
233rd Executive Board meeting held on Mar 20, 2014.
5.2.
Minutes were accepted for confirmation with some
amendments.
Decision
5.3.
The Executive Board confirmed minutes of 233rd meeting
held on Mar 20, 2014 with the following amendments:a.
In Agenda Item No 2 titled Amended PC-I for

Improvement & Widening of Jaglot-Skardu Road,
S-I (163.821 Km) second last sentence in Para-5.14
may be amended as follow:For:
. The VP-NESPAK further desired that

the contract should include the contents
similar to the addendum signed in CRBC
case, which identified various activity
locations. ..
Read:
. The VP-NESPAK further desired that

the contract should include various
binding requirements at specific locations,
similar to the addendum signed in CRBC
case. .
Suggested by VP-NESPAK
b.
In Additional Agenda Items I, II & III regarding

Construction of Leftover Works of Gwadar - Turbat
- Hoshab Road Project (M-8) rephrase Paras -22.10
& 22.12 as below:22.10.
The Board Members unanimously
suggested that the percentage above the Engineers
Estimates for remaining packages may be brought at
the level of first package. The Chairman agreed to
the suggestion and instructed GM (P&CA) to
approach FWO in order to achieve further reduction
in percentage.
22.12.
The Chairman highlighted that due to
prevailing law & order situation and strategic nature
of the project, which will not only help operationalize
the Gwadar Port but also be instrumental in ensuring
access to the area; thus special dispensation of the
project is warranted.
Suggested by Additional Secretary (Finance)
Action By
Secretary NHA
Agenda Item 2
Policy for Construction of new Interchanges on NHA
Network Not Qualifying GoPs Criteria but Required
by the Private Sector for Access to Business or
Residential Area
6.
6.1.
of time.
The subject agenda item was not discussed due to paucity
Action By
Secretary NHA
Agenda Item 3
Award of Maintenance Contract for KKH (Km 218350) to FWO for FY 2013-14 on Terms & Length
Based on Performance Indicators
7.
7.1.
of time.
Action By
8.
Member (Operations)
Agenda Item 4
Engineers Estimate for Widening & Improvement of
Tarnol Railway Crossing at Km 1553+393 (NBC/SBC)
on National Highway (N-5)
Proposal
8.1.
The Executive Board is requested to accord approval of
Engineers Estimate amounting to Rs 247,625,734/- for widening and
improvement of Tarnol Railway Crossing at Km 1553+218 - 1555+393
on N-5 through Road Maintenance Account (RMA) under Special
Maintenance Allocation out of AMP 2014 -15.
Deliberation
8.2.
The Member (Operations) presented the case. He briefed
the Board about the necessity of the project and mentioned that the
construction of the grade separated facility (flyover / underpass) to
provide free flow of traffic to ease off the congestion would be
ultimately required as a long term solution. However, keeping in view
the financial and time constraints NHA has planned for immediate
widening & geometric improvement of Tarnol intersection at N-5
through provision of additional lanes, closed U-turns, 4x Class-I
Railway Crossing gates and improvement of pavement condition; is
the instant requirement.
8.3.
The Member (Operations) further explained that the
proposed widening & improvement at grade will serve for at least 10
years and will facilitate about 70,000 vehicles per day and reduce
vehicular operating cost (VOC), including but not limited to reduced

travel time, considerable reduction in delay, saving in cost of fuel,
reduction in accidents and reduced cargo cost.
8.4.
The Member (Operations) apprised that Pakistan Railways
authorities have also been taken onboard regarding the said proposal
to which they have consented.
8.5.
The VP-NESPAK, Chief (T&C) & IG (NH&MP) were of the
view that a flyover or an underpass should be provided at said
location to provide a long term permanent solution to traffic
congestion, instead of construction of outer lane facility. The Member
(Planning) explained that if NHA is going to start construction of
flyover or underpass there will be no option for plying of traffic on the
road due to constricted working space. He further explained that we
may agree for provision of additional lanes, as a short term solution,
which will not go waste at the time of construction of grade separated
facility as a long term solution.
8.6.
The Chairman NHA responded to the Board that he has
personally visited the site and noticed substantial traffic congestion
particularly emergency vehicles remained stuck for considerable
duration. He further stated that the current proposal of widening &
improvement at Turnol Level Crossing (N-5) is an inescapable short
term requirement. The ultimate long term solution would rightly be a
grade separated facility.
8.7.
The Board deliberated and cleared the proposal.
Decision
8.8.
The NHA Executive Board approved the Engineers
Estimate amounting to Rs 247,625,734/- (Rupees two hundred & forty
seven million, six hundred & twenty five thousand, seven hundred & thirty four)
only for widening and improvement of Tarnol Railway Crossing at Km

1553+218 - 1555+393 on N-5 through Road Maintenance Account
(RMA) under Special Maintenance Allocation out of AMP 2014 -15.
Action By
Member (Operations)
Agenda Item 5
Construction of Road Safety Training Institute Office
Building, Islamabad
9.
Proposal
9.1.
The Executive Board is requested to accord the approval
of Engineers Estimate amounting to Rs 198,362,807/- for
construction work of Road Safety Training Institute Office Building
(including Drivers Training Authority Complex and residential building) through
NH&MP Fine Share.
Deliberation
9.2.
The Member (Operations) presented the case.
9.3.
The Chief (T&C) observed that the instant case does not
fall under the purview of NHA Executive Board, thus it should not be
presented in this meeting. The Director (RAMS) explained that it is a
deposit work on the land of NH&MP and the Inspector General
(NH&MP) has accorded approval for releasing funds out of fine
collection share of motorway police.
9.4.
The Chairman was of the view that presentation of
proposal at this stage before the Board was not required. The proposal
may be placed after completion of tendering process for approval of
award of contract. The Board supported the version of Chairman.
Decision
9.5.
The NHA Executive Board cleared the proposal with the
direction that the case be submitted for approval of award of contract
after completion of tendering process.
Action By
Member (Operations)
Agenda Item 6
Revised PC-I: Dualization of N-70 / M-4 Link
Interchange-Punjab (Nagshah Chowk) Multan Crossing
N-70 From Multan to Shujaabad
10.
Agenda Item 7
Addendum-3 of M/s A.A Associates: Construction of
Approach Road on Larkana Side of Larkana Khairpur
Bridge (Pack-I & IV)
Agenda Item 8
Revised Addendum-15 of M/s EA Consulting (Pvt) Ltd
for Construction Supervision of Lyari Expressway
Project
Agenda Item 9
Addendum-4 of M/s EA Consulting (Pvt) Ltd for
Consultancy Supervision of Improvement of Inner
City Ring Road, Multan Project
10.1.
The subject agenda items were not discussed due to
paucity of time.
Action By
Member (Construction)
Agenda Item 10
Revised PC-I for Land Acquisition, Property
Compensation and Shifting of Utilities at FaisalabadKhanewal Motorway (M-4)
11.
11.1.
of time.
Action By
Member (Aided Projects)
Agenda Item 11
Enlistment of Security General Insurance Company
Ltd Having AA-(minus) Credit Rating on Approved
Panel of NHA for Construction Contracts
12.
12.1.
of time.
Action By
Member (Finance)
Agenda Item 12
PC-I for Land Acquisition, Affected Properties
Compensation & and Relocation
of Utilities for
Construction of 959 Km Karachi-Lahore Motorway
(KLM) (Excluding 136 Km of M-9 and 57 Km of under
Construction M-4)
13.
Proposal
13.1.
The Executive Board is requested for recommendation of
PC-1 for Land Acquisition, Property Compensation and Shifting of
Utilities for Construction of 959 Km Karachi Lahore Motorway (KLM)
at an estimated cost of Rs. 60,590 million for submission to the CDWP
/ ECNEC.
Deliberation
13.2.
The Member (Planning) briefed the Board. The VPNESPAK observed that cost of land seems on higher side as compared
to that of Pindi Bhattian - Faisalabad Motorway (M-3), which requires
due diligence.
13.3.
The Chairman responded that it is an estimated /
projected cost and actual cost would be based on the input to be
provided by the respective Revenue Authorities of the Sindh & Punjab
Provinces and due care shall be taken in finalization of land cost.
13.4.
10
Decision
13.5.
The Executive Board recommended PC-I for land
acquisition, property compensation and shifting of utilities for
Construction of 959 Km Karachi - Lahore Motorway (KLM) at an
estimated cost of Rs. 60,590 million for submission to the CDWP /
ECNEC.
Action By
Member (Planning)
Agenda Item 13
Award of Works for Construction of Approach Road
from Kot Mithan to N-55 (from Km 23+000 to Km
31+094) Shaheed Benazir Bhutto Bridge Over River
Indus Connecting Chachran Sharif to Kot Mithan
(Package I)
14.
14.1.
of time.
Action By
15.
Member (Planning)
Agenda Item 14
PC I for Improvement and Widening of Mingora
Fatehpur Section (45 Km) of National Highway (N-95)
Proposal
15.1.
The Executive Board is requested to clear the PC-I for
Improvement & Widening of Mingora Fatehpur Section (N-95, 45
KM) costing Rs 4,521.739 Million and recommend its onward
forwarding to the Provincial Reconstruction, Rehabilitation Authority
(PaRRSA), Govt of Khyber Pakhtunkhwa.
Deliberation
15.2.
The Member (Planning) presented the case. He apprised
that the project is being financed by Saudi Fund for Development
(SFD) through Provincial Reconstruction, Rehabilitation Authority
11
(PaRRSA). Technical Working Party (TWP-I) in its 20th meeting held on

Mar 27, 2014 recommended the PC-I for submission to NHA Executive
Board.
15.3.
The VP-NESPAK observed that design of the project has to
be rationalized after traffic survey.
15.4.
Decision
15.5.
The Executive Board cleared the PC-I for Improvement &
Widening of Mingora Fatehpur Section (N-95, 45 KM) with
rationalized cost after revisiting. Traffic survey to rationalize design
and recommended rationalized PC-I for onward forwarding to the
Provincial Reconstruction, Rehabilitation Authority (PaRRSA), Govt of
Khyber Pakhtunkhwa subject to completion of codal formalities.
Action By
Member (Planning)
Agenda Item 15
Policy Decision Regarding Award of works to FWO on
Single Tender Basis, Exemption of Income Tax &
Performance Guarantee
16.
16.1.
of time.
Action By
Member (Operations)
Agenda Item 16
Revised PC-I for Construction of Kolpur Bypass Road
Project (N-65)
17.
17.1.
of time.
Action By
Member (Construction)
12
Additional Agenda Item-I

Overlay and Modernization of Lahore - Islamabad
Motorway (M-2) on Build-Operate-Transfer (BOT) Basis
18.
Proposal
18.1.
The Executive Board is requested to approve the draft
Concession Agreement for signing with M/s Motorway Operations and
Rehabilitation Engineering Company (Pvt) Ltd for Overlay and
Modernization of Lahore - Islamabad Motorway (M-2) on BuildOperate-Transfer (BOT) Basis.
Deliberation
18.2.
The Director (PPP) presented the case and briefed the
Board as under.
18.3.
The M-2 has completed its design life and most of its part
is showing deterioration, resultantly the riding quality is deteriorating
very fast. Virtually, it demands complete overlay. Keeping in view the
condition of M-2, NHA has initiated efforts to save this most important
segment of Trans-Pakistan Motorway, which will ultimately help keep
the Motorway Network financially sustainable. It is feared that if this
very much required overlay / improvement program is delayed then
the M-2 will enter into rehabilitation mode and will require an
investment level of 4 to 5 times (over 100 billion Rupees) higher than
the present day requirement.
18.4.
NHA decided to undertake the project through PublicPrivate Partnership (PPP) under Build-Operate-Transfer (BOT)
arrangement, with the following objectives:
A. To improve existing M-2 to its as-built condition.
B. To modernize the M-2 at par with International Motorway
Standards.
C. To gain upfront money to the tune of Rs 19.00 billion.
18.5.
NHA received the bids and processed for evaluation,
whereas, M/s Infrastructure Project Development Facility (IPDF) (a
subsidiary Ministry of Finance) established specifically for development
of PPP projects in the country, was involved throughout the process,
from evaluation of bids till negotiation / finalization of Concession
13
Agreement. Out of total six (06) firms/joint ventures, who procured

RFP, only one, M/s Frontier Works Organization (FWO) / Zahir Khan
& Brother (Pvt) Ltd (ZKB) / Sachal Engineering (Pvt) Ltd (SACHAL),
(Joint Venture) submitted bid, on 06-07-2012, to undertake the
Project on BOT basis. As a result of technical evaluation the Joint
Venture (JV) secured eighty six (86) points out of total 100 points and
qualified for opening of Financing Proposal. The Financial Proposal
was opened on 08-8-2012.
18.6.
Detailed evaluation was undertaken by the committee.
M/s Infrastructure Project Development Facility (IPDF) assisted NHA
to undertake detailed evaluation of the Financial Proposal.
Subsequent to detailed evaluation, the NHA Evaluation Committee
declared the proposal as a responsive proposal and recommended
for issuance of a Letter of Support to Joint Venture. Pursuant to
recommendations of evaluation committee and approval of competent
authority, the Letter of Support (LOS) was issued to JV on 12-9-2012.
18.7.
The Joint Venture has incorporated a project company
named Motorway Operations and Rehabilitation Engineering Company
(Private) Limited (Concessionaire) for the sole purpose of
implementation of the Project. Series of meetings were held, between
NHA Concession Negotiation Committee and the Concessionaire's
team to finalize Concession Agreement.
18.8.
As a result of detailed deliberations a Draft Concession
Agreement has been finalized for consideration and approval of NHA
Executive Board. Following are the salient features of final Draft
Concession Agreement:a.
Scope of Work: As specified in the Request for

Proposal, issued by NHA and the Proposal of the
Joint Venture.
b.
Concession Period: Twenty (20) years commencing

from signing date.
c.
Project Cost:
Total Project Cost is PKR
36,825,000,000/- (Rupees thirty six billion, eight
hundred twenty five million only).
14
d.
Concession Area: Handing over of Concession Area

free of encumbrances is the responsibility of NHA.
e.
Shifting of Public Utilities: The cost and expense

associated with the removal, relocation or diversion of
the Public Utilities and thereto necessary for
commencement of the Works, shall be borne by the
Concessionaire.
f.
Financing Arrangement:
The Concessionaire is
obliged to ensure following debt: equity ratio for
arranging funds for the Project:
Debt (maximum)
Equity (minimum)
:
:
70%
30%
g.
Financial Close: The Concessionaire is obliged to

achieve Financial Close within six (06) months from
Effective Date, i.e. date of the signing of Concession
Agreement.
h.
Construction Period: Construction period is thirty

six (36) months, commencing from achievement of
Financial Close.
i.
Handing over of Tolling and Operational Rights: The

tolling and operational rights shall be handed over
upon achievement of Financial Close.
j.
Toll during Construction Phase: Following toll rates

during construction phase shall be applied:
Sl No.
1
2
3
4
5
6
Vehicle Type
Toll Rate Rs./Km
Class 1: Cars/Jeeps/Taxis
0.79
Class 2: Wagons
1.32
Class 3: Buses
1.85
Class 4: 2-Axle Trucks
2.64
Class 5: 3-Axle Trucks
3.43
Class 6: Articulated Trucks
4.42
15
k.
Base Year Toll Rates: Following toll rates shall be

applied on completion of construction, first year of
operation:
Sl No. Vehicle Type
Toll Rate Rs./Km
1 Class 1: Cars/Jeeps/Taxis
1.58
2 Class 2: Wagons
2.64
3 Class 3: Buses
3.70
4 Class 4: 2-Axle Trucks
5.28
5 Class 5: 3-Axle Trucks
6.86
6 Class 6: Articulated Trucks
8.84
l.
Annual Toll Escalation: The following annual Toll

escalation shall be applicable during the Operations
Phase:
i.
Ten percent (10%) annual Toll escalation shall

be applied from the second (2nd) Operational
Year till the twelfth (12th) year of the Concession
Period; and
ii.
Seven percent (7%) annual Toll escalation shall

be applicable from thirteenth (13th) year of the
Concession Period till last year of the
Concession Period.
m. Toll Exemptions: Following vehicles, as per NHA PPP

Policy and Regulatory Framework, shall be exempted
from payment of tolls:
n.
Provincial and National Highways & Motorway

Police
Fire Brigades
Ambulances
Armed Forces of Pakistan vehicles bearing broad
arrow number plates
Vehicles conveying MNAs / MPAs and Senators
in person
Vehicles having Supreme Court / High Court
Flags / Insignia Plates
Guaranteed Payments to NHA:
16
(i) Guaranteed Payment to NHA

Upfront Guaranteed Payment of Rupees Nine
Thousand and Five Hundred Million only (PKR
9,500,000,000/-) shall be paid by the
Concessionaire to NHA upon achievement of
Financial Close.
(ii)
Staggered Guaranteed Payment to NHA

The Concessionaire shall pay NHAs, Staggered
Guaranteed Payment amounting to Rupees Nine
Thousand and Five Hundred Million only (PKR
9,500,000,000/-) during the fourth (4th) to
eighth (8th) years (five years) of the Concession
Period at the rate of Rupees One Thousand Nine
Hundred Million only (PKR 1,900,000,000/-) per
year.
o.
Revenue sharing with NHA: The Concessionaire shall

pay to NHA, the revenue share, during the
concession period, as per following schedule:Sl
No.
Concession
Year
NHA Revenue Share

Percentage of Gross Profit
(Revenue minus collection losses, as
stipulated in the Financial Model)
1
2
3
4
5
6
7
8
9
10
11th
12th
13th
14th
15th
16th
17th
18th
19th
20th
42.19%
42.19%
42.19%
42.19%
42.19%
42.19%
42.19%
42.19%
42.19%
42.19%
17
p.
GoP/NHAs
Guarantee:
Government
of
Pakistan/NHA has not provided any type of
guarantee traffic revenue, financial, commercial or
otherwise to the Concessionaire.
18.9.
Representatives of Legal and Financial Experts of M/s
Infrastructure Project Development Facility (IPDF), Ministry of Finance
and M/s AJURIS, Advocates & Corporate Counsel briefed the Board
with reference to the legal and financial aspects of the concession
agreement.
18.10.
The Chairman explained the background and necessity of
the proposal as well as meetings with the Prime Minister and
management of FWO. The Chairman urged the Board to consider the
proposal and accord the requisite approval.
18.11.
The VP-NESPAK viewed that 33% of M-2 and fast lane is
in good condition and asked that whether the IRI reported during the
presentation, is for slow lane or fast lane. The Member (Plg) replied
that average IRI of all 3-lanes was considered therein and the backup
data for each individual lane is available in the record.
18.12.
JS (Admn) MoC / Chief NTRC opined that accident prone
location of Salt range should be considered in this project for
improvement. The Chairman NHA agreed to the opinion, in principle,
however, remarked that inclusion of such provision would have a
certain cost effect. VP-NESPAK also enquired about the land slide in
the area and NHAs liability; the Member (Plg) explained that it is
covered under the agreement as concessionaire risks.
18.13.
The Board Members enquired about the distribution of
risks among the parties to the concession agreement. The legal
experts informed in this regard as under:a.
Concessionaire risks: Financial & Commercial risks

i.e. financing; design; construction; and demand, etc.
b.
NHA risks: Change

Termination Payments.
of
law;
Political
risks;
18
18.14.
The Chairman NHA informed the Board that completion
period, instead of 36 months as mentioned in the concession
agreement of first overlay has to be 24 months as mutually agreed
upon by the Concessionaire, during a meeting with the Prime
Minister.
18.15.
It was observed by the VP-NESPAK that options other
than BOT should have also been evaluated with due diligence to have
a comprehensive financial comparison among various alternatives. He
also remarked that M-2 is a very valuable asset with a well established
revenue stream and therefore a Public Sector Comparator and
Value for Money Analysis should have been carried out before
pursuing the BOT option. He also referred to the observations of the
Board on draft Concession Agreement presented earlier in its 222nd
meeting of Oct 16, 2012. The Chief (T&C) also supported this
observation and asserted that comparison should have been
conducted on apple to apple basis. Director (PPP) explained that such
comparison has already been done. In the later part of presentation
IPDF presented detailed analysis of public sector comparator.
18.16.
The Chief (T&C) enquired about the land within RoW of
M-2, which has been used to procure Sukuk bonds. The legal expert
clarified that there will be no effect of Sukuk transaction, if any, on
the Concession Agreement. It was further clarified that the title of the
land shall remain with the NHA.
18.17.
The VP-NESPAK enquired that when the Concessionaire
will take over the site for commercial and construction activities. The
Member (BOT) informed that site will be handed over to the
Concessionaire on financial close.
18.18.
The JS (Admn) MoC / Chief NTRC enquired about the
terms & conditions of third party consultants. The representative of
M/s AJURIS informed that third party includes neutral entities i.e.
Quality Assurance Inspectors, Joint Auditors & Professional
Consultants etc, who will be engaged as per agreement and
parameters /ToRs jointly agreed by NHA and the Concessionaire.
19
18.19.
The VP-NESPAK enquired that who shall be responsible
for the construction of additional toll lanes if and when there is
considerable increase in traffic and need arises. The Member (Plg)
responded that such work will be considered as additional and will be
incorporated through a variation order. However, Chairman NHA
remarked that such important provision needs to be included in the
concession agreement.
18.20.
The VP-NESPAK asked about the compensation and relief
admissible to the Concessionaire in case of changes in Laws which is
the risk of NHA. The Member (PPP) informed that the Concessionaire
will only be eligible for compensation in case of changes in legislation
concerning the concession agreement and escalation of prices of
materials is excluded.
18.21.
The VP-NESPAK enquired about the handling of funds
received from the project. The Legal Experts of M/s IPDF responded
that NHA intends to create a fund under the nomenclature of
Contingent Liability Fund (CLF) / Road Development Fund (RDF) or
any other suitable modality by utilizing upfront payment of PKR 9.5
billion from FWO as a seed capital. All NHAs revenue shares from
M-2 will go towards this fund and it will ensure servicing for toll short
fall in any given year. The fund would primarily be used to bridge
short fall in toll and may supplement the termination burden in case
NHA defaults. On a query by JS (MoC), regarding operation of this
proposed fund, the Chairman informed that this account will be
operated by NHA and an SOP shall be devised in this regard with the
approval of Board. The Chairman, on clarification sought by Chief
(T&C), informed that this fund will have no concern with Road
Maintenance Account (RMA).
18.22.
The JS (MoC) enquired about taking over of Service Areas
from M/s DPMSL which are presently under litigations. The Chairman
informed that, the concessionaire is well aware of this situation and
these shall be handed over as and when available.
20
18.23.
The IG (NH&MP) remarked that there must be a traffic
management plan before commencement of the construction on M-2
to ensure smooth flow of traffic and safety of commuters during
construction period. The Chairman supported the concern of the
honorable Member and assured that the Concessionaire will
incorporate a traffic plan in this regard, in consultation with NH&MP
and NHA.
18.24.
The Additional Secretary (Fin) highlighted that there is no
financial liability or guarantee envisaged to Government of Pakistan or
NHA. It was confirmed that Concession Agreement contains following
understanding:
a.
Government of Pakistan/NHA shall not provide any

type of guaranteefinancial, commercial or otherwise.
b.
Government of Pakistan/NHA shall not provide any

traffic or revenue guarantee.
c.
Government of Pakistan/NHA shall not bear any

foreign currency risk.
18.25.
The VP-NESPAK opined that 10% increase in the toll every
year may not be sustainable and ultimately create financial liabilities
for NHA if there is revenue shortfall for Concessionaire. The Financial
Experts of IPDF and KMR explained that in case of nonimplementation of agreed toll escalation CLF/RDF shall be there to
cater. M/s IPDF also presented a detailed different possible scenarios
for non-implementation of annual toll escalation. Under all possible
scenarios the CLF/RDF remains positive.
18.26.
The Board appreciated the commendable job done by the
NHA and IPDF team for accomplishment of such an exhaustive task of
national importance and prayed that the project may materialize
successfully.
The Board cautioned NHA to initiate appropriate
measures for making this prestigious project a success, which will
greatly help pave the way for attracting future private sectors
investment.
21
18.27.
Decision
18.28.
The Executive Board approved the proposal regarding
signing the concession agreement with M/s Motorway Operations and
Rehabilitation Engineering Company (Pvt) Ltd for Overlay and
Modernization of Lahore-Islamabad Motorway (M-2) on Build-OperateTransfer (BOT) Basis for 20 years.
Action By
19.
Member (PPP)
Additional Agenda Item-II
Report of the Executive Board
Elevation of NHA Employees
Committee
on
19.1.
The Member (Admn) presented the case with reference to
the Agenda Item in respect of following issues:a.
Upgradation / Elevation of NHA Employees in BS 1

16.
b.
Legality of past upgradation of NHA Employees by

NHA Executive Board.
c.
Removal of Disparity of Service Structure between

NHA Employees.
Introduction Working paper

19.2.
Background: The proposal for upgradation and/or
elevation of NHA employees in BS 1 - 16 stems from a decision of the
Federal Service Tribunal, which found in favour of upgradation of
various cadres of Accounts and Audit Service of Pakistan in the case
of Syed Faiz Ali Shah & 260 others v. Secretary Finance & 2 others
through its judgment dated 12th May 2008. The judgment of the FST
was challenged by Secretary, Ministry of Finance, Controller General
22
of Accounts, and Accountant General Punjab through inter alia

Constitutional Petition 325/2009 before the Supreme Court of
Pakistan. The Supreme Court however dismissed the petitions and
ordered the Controller General of Accounts, and Accountant General
Punjab to implement the FSTs decision within a period of 15 days.
Thereafter, officials of the Accounts and Audit Group/Cadre in various
organizations, other than the Controller General Accounts, and the
Accountant General Pakistan Revenue, were also upgraded by their
respective organizations (such as the Capital Development Authority,
Federal Board of Revenue, Pakistan Bail-ul-Maal, Pakistan Railway
etc.).
19.3.
Background in NHA. These events lead to an application
by a number of NHA officials working in accounts, budget, and audit
posts, to seek upgradation of their posts along similar lines. The
matter was considered by the NHA Executive Board in its 196th
Meeting on 4th October 2010, which decided that the issue was to be
analyzed and reviewed jointly by the Member (Admin) and Member
(Finance), and reported back to the NHA Executive Board. These
Members jointly analyzed the matter and noted that the applicant
employees of NHA were already enjoying additional benefits, in the
shape of project allowance/headquarter allowance, hiring facility,
medical facility, and official vehicle, as well as pick and drop facility,
in comparison to other departments under the control of the
Controller General Accounts, and the Auditor General of Pakistan. In
view thereof, they reported back to the NHA Executive Board that:
In view of the above additional benefits already available
to the NHA employees of these cadres as well as position of
running projects of NHA, the benefit of up-gradation to
these employees seems not affordable.
19.4.
Judgment of the Federal Service Tribunal. Thereafter,
various NHA employees working in accounts, budget, and audit posts,
sought upgradation of their posts through Appeals No. 976 to 1051
(R)CS/2011 titled Abdur Raziq Tareen & others v. NHA before the FST.
The FST announced its order on 13th September 2011, wherein it
decided that:
23
The respondents have not passed a final order on the

grievance of the appellants. They are directed to pass an
order keeping in view Articles 37(s) and 38(e) of the
Constitution of the Islamabad Republic of Pakistan read
with Article 25. The recommendations of the senior officials
of the respondents shall also be taken into consideration.
The final order shall be passed preferably within three
months from the date of receipt of this order. With this
direction the appeals stand disposed of.
19.5.
209th Meeting of the Executive Board. In pursuance of the
FSTs judgment, the issue of Upgradation of the Posts of Audit and
Accounts Service was considered at agenda item 18 by the NHA
Executive Board in its 209th meeting held on 3rd November 2011. The
working papers of this meeting had recommended to the Executive
Board, the approval of a proposal to upgrade various accounts/audit/
budget posts in NHA. Accordingly, the NHA Executive Board approved
the upgradation of the following posts in Audit and Accounts Cadre of
NHA:
No Post
A
B
C
D
E
AD (Accounts/Audit/Budget)
Superintendent
(Accounts/Audit/Budget)
Accounts/Audit/Budget Assistant
Senior Accounts Clerk
Junior Accounts Clerk
Existing
Scale
BS-17
BS-16
Revised
Scale
BS-18
BS-17
BS-14
BS-9
BS-7
BS-16
BS-14
BS-11
19.6.
This upgradation of posts was notified with effect from 3rd
November 2011 vide NHA notification no. 3(11)Admn(P)/NHA/2011/
1239 dated 28th December 2011, wherein, it was noted that the NHA
Executive Board had carried out the upgradation in compliance of the
orders dated 13th September 2011 of Federal Service Tribunal in
Abdur Raziq Tareen & Others Vs. NHA etc., and in exercise of
powers conferred on it (i.e. the NHA Executive Board) under Rule
2(1)(b) and 3 of NHA Service Rules 1995.
24
19.7.
Other cases before the FST. A number of Non
audit/account/budget NHA officials filed appeals before the FST,
seeking among other things, increase in personal pay, upgradation of
posts, amendment to service rules, and removal of disparity in
different classes of service as a result of upgradation of account/
audit/budget posts. These appeals were decided by the FST vide its
order in appeal titled Naeem Khalid & others v. NHA etc, dated 7th
December 2011. Again, the FST directed NHA to:
consider the claim made by the appellant and take
appropriate stage (sic) for their redressal, even if it involved
amendment in the service rules. The process may be
completed expeditiously, preferably within a period of four
months
19.8.
Proposal for elevation of employees. The NHAs Executive
Board took up the issue of upgradation of ALL non-upgraded NHA
employees in its 223rd Meeting held on 7th November 2012. The
Executive Board, decided that instead of upgrading all posts in the
manner proposed through the working paper, only deserving regular
employees would be elevated to one pay scale above their existing
scale, and set out conditions for elevation. Under these conditions
only those employees would be elevated who:
a.
Possessed the qualifying length

promotion to the next higher post;
b.
Had an overall grading of good or above in their last

five performance evaluation reports, however for posts
where the rating proforma did not exist, this condition
did not apply;
c.
Had no disciplinary proceedings pending against

them; AND
d.
The elevation would be a one-time exercise only and

upon the vacation of the post by an elevated
individual, the post would revert to its original scale.
of
service
for
25
19.9.
More cases before the FST. Thereafter, a number of
appeals were filed before the FST by the non-upgraded NHA employees
in BS 116, praying for their upgradation, along the lines of the
upgradation of posts of NHA employees serving on accounts, audit,
and budget posts. In one of these appeal, titled Asim Saeed Qazi etc. v.
National Highway Authority etc. the FST, in its order dated 10th
January 2013 observed that there was disparity in NHAs pay scales
and ordered that:
the respondents are directed to remove the disparity in
pay scales of the appellants viz-a-viz their contemporaries
in their department and other departments within six week
from the date a copy of the judgment is received in the
office of the respondents as they have already admitted in
their reply that the matter is under process.
19.10.
Writ Petitions before Islamabad High Court. Thereafter,
due to no decision being made within the timeline provided by the FST
in inter alia, the case of Asim Saeed Qazi etc., the appellant therein,
and a number of other NHA employees, filed writ petition before the
Honourable Islamabad High Court. Writ Petition No. 1349/2013 titled
Asim Saeed Qazi v. NHA etc was disposed off by the IHC vide judgment
dated 21st November 2011, wherein it was stated that:
The respondent no. 1 is directed to implement the judgment
of the learned FST dated 10-01-2013 within a period of
four weeks from the receipt of this order, under intimation
to this court through Registrar.
19.11.
Writ Petition No. 2024/2013 titled 2024/2013 titled
Sarbland Khan etc. v. Chairman NHA etc., and Writ Petition No. 2025/
2013 titled 2024/2013 titled Riaz Ahmad etc. v. Chairman NHA etc.
were disposed of by the IHC vide judgments dated respectively 27th
and 28th November 2011, through identical orders, wherein it was
stated that:
the respondents are under an obligation to decide the
claim of the petitioners without any further loss of time. The
26
respondents are directed to submit compliance report

within a period of one month.
19.12.
In all three of the aforementioned petitions decided by the
Islamabad High Court (IHC), NHA managed to obtain one months
extension for compliance with the Courts judgments however, no
decision was made even thereafter. Resultantly, in all three petitions,
Contempt of Court applications (Criminal Original No. 192/2014,
184/2014, and 185/2014) against the Chairman, NHA, and Member
(Administration) NHA have been filed, which are currently pending
before the Chief Justice, IHC, and in which the next date of hearing is
26th May 2014.
19.13.
Proposals by Board Committee. NHA Executive Board, in
th
its 224 Meeting held on 7th January 2013 constituted a committee
comprising of Joint Secretary-II, Ministry of Communications, Chief
(T&C), P&D Division, and Member (Finance) NHA to submit a report
on the elevation of NHA employees in BS 1 to 16. Director (Legal),
NHA was co-opted as a member of this committee. The committee, in
its report dated 23rd December 2013, recommended the following
options of NHAs Executive Board:
i.
a) All NHA employees in BS 1 16 to be elevated

to the next scale as per criteria already
approved by the Executive Board in its 223rd
Meeting held on 7.11.2012 (agenda item 10)
OR
b) For compliance of the Court orders, all the
appellants be up-graded at par with their
counterparts in Accounts/Audit cadres and
later on all such up-graded posts be redesignated after considering the job structure in
other departments in view of its suitability and
practicability.
ii.
To
facilitate
the
implementation
of
recommendations at 13(i)(a) or 13(i)(b), promotion
quota may be reviewed and necessary amendments
be processed in NHA Service Rules.
27
19.14.
Other posts upgraded by Executive Board. In addition to
upgradation of the NHA employees serving on audit, accounts, and
budget posts, the NHA Executive Board in the past has upgraded
various posts, such as those of Computer Operator (209th Meeting)
P.S., Stenographer, Stenotypist (212th Meeting), Cameraman (193rd
Meeting), Librarian, Draughtsman (210th Meeting), Generator/AC
Plant Operator, Telephone Operator, Khateeb (111th Meeting),
Qanoongo and Patwari (208th Meeting), from their original pay scales
to revised higher pay scales. These upgradations have also been done
in purported exercise of NHA Executive Boards powers under Rule
2(1)(b) and Rule 3 of the NHA Service Rules 1995.
19.15.
Applicable Law. Employment in NHA is governed by
Section 13 and 14 of the NHA Act, NHA Service Rules 1995, and NHA
(Appointment and Promotion) Rules 1995. Additionally, certain
provisions of ESTA Code and Section 21 of the General Clauses Act
are also applicable to the current scenario.
19.16.
Powers of NHA Executive Board. Under the NHA Service
Rules, and the NHA (Appointment and Promotion) Rules 1995, NHA
Executive Board has been defined as the Competent Authority. The
NHA Executive Board is thus competent to create or abolish posts;
however the appointment and promotions of employees, and other
conditions applicable to employees must be in accordance with the
Schedules of the NHA (Appointment and Promotion) Rules 1995. ESTA
Code defines upgradation as abolition of the existing post and
creation of a new post higher grade. Furthermore, under the Rules,
financial benefits cannot be accorded without the prior concurrence of
the Finance Division. Schedule IV of the NHA (Appointment and
Promotion) Rules 1995 sets out, amongst other things, for the
purposes of appointment etc., designation of posts in NHA against the
basic pay-scale in which that posts has been sanctioned in the NHAs
service structure, for posts in BS 1 20. Since the Rules are framed
by the Federal Government under Section 31 of the NHA Act, NHAs
Executive Board is not empowered to act in derogation of the Rules
and to upgrade a post, since the effect would be to create a post and
appoint a person on it, in derogation of the approved scale of that post
contained exhaustively in the Schedule. Furthermore, NHAs
28
Executive Board is not empowered to take a decision on its own that

accords financial benefits to employees without prior concurrence of
the Finance Division.
19.17.
Effect of court cases/decisions. The decision of the
aforementioned judgment of the Supreme Court was not applicable to
NHA as it was not directed in any manner whatsoever to NHA.
Furthermore, in all previous cases, NHA has been asked by the FST,
or the High Courts, to consider the requests/applications of
employees, to decide the same, or to take a decision to remove the
disparity that has been created amongst NHA employees by selectively
upgrading the posts of certain employees working in accounts/
budget/audit posts. Otherwise, no court order has directed or ordered
the NHA to upgrade some or all employees, and similarly, no court
order or decision has found NHAs Service Rules to be in derogation of
the Constitution, or any other law. However, the selective upgradation
of certain employees, besides being in violation of the NHA Service
laws, also creates discrimination against the remaining employees,
which is prima facie unconstitutional.
19.18.
Can the Executive Board revoke its earlier decision? NHA
has sought legal opinion on the matter. It has been advised that is
settled law that the authority which has taken a decision, has also the
power to change or amend that decision. The decision of the Supreme
Court in the case of The Engineer-in Chief v. Jalaluddin PLD 1992 SC
207, on a similar issue is emphatic on this point. The relevant part of
the judgment is reproduced herein, which is self-explanatory.
19.19.
Additionally, under section 21 of the General Clauses Act,
the authority which can pass an order it entitled to vary, amend, add to
or to rescind that order. The order under which the payment was made
to the respondent had no sanction of law. Locus poenitentiae is the
power of receding till a decisive step is taken. But it is not a principle of
law that order once passed becomes irrevocable and it is a past and
closed transaction. If the order is illegal then perpetual rights cannot be
gained on the basis of an illegal order. The appellants when came to
know that on the basis of incorrect letter the respondent was granted
Grade-11, they withdrew the said letter. The principle of locus
poenitentiae would not apply in this case.
29
19.20.
It has more recently been held by the Supreme Court in
Executive District Officer (Edu) v. Rizwana Kausar 2001 SCMR 1581 by
Mr. Justice Tassaduq Hussain Jillani that There is no cavil with the
proposition that the principle of locus poenitentiae would arise in a
situation when some benefit was awarded to a person against declared
law. Thus, the NHA has received legal advice that since the earlier
upgradations were in violation of the NHA (Appointment and
Promotion) Rules 1995, as well as the NHA Service Rules 1995, the
same have created no permanent legal rights, and under Section 21 of
the General Clauses Act, the Executive Board is fully empowered to
withdraw/revoke the orders of upgradation, which will simultaneously
put to an end any disparity in pay or discrimination in service
structure within the service cadre of NHA, and all NHA employees will
be thereafter on equal footing, and in service according to the
applicable law.
Board Deliberations
19.21.
The Board deliberated on the matter in light of the
presentation made before the Board.
19.22.
The VP-NESPAK viewed that the draft minutes be
reworded. The Chairman instructed Member (Admn) to revisit the
draft and finalize as per discussion in the Board meeting.
19.23.
The Chief (T&C) did not agree with the proposal and
viewed that it is a serious issue for the Board that at one time NHA is
coming with the proposal that the recommendations are as per rules,
procedures, whereas, after lapse of years, the Board is approached to
revoke its earlier decision(s) being against the rules. He suggested that
NHA should first conduct facts findings proceedings of the matter to
fix responsibility against the concerned persons. The Executive Board
may also keep in mind the legal aspects and litigations to be faced by
NHA in case of reversion / withdrawal of upgradations. He finally
opined that the Board may defer the item till facts findings
proceedings are completed and responsibilities are fixed for getting
approvals in earlier meetings for upgradations of posts in different
cadres.
30
Decision
19.24.
The Executive Board decided that since the past
upgradations of certain posts was not in conformity with NHA Service
Rules 1995 and the NHA (Appointment and Promotion) Rules 1995, all
such upgradations being against the rules were rescinded ab initio,
and all posts in NHA that were so upgraded, along with their
incumbents, will immediately revert to their designated pay-scales as
per Schedule IV of the NHA (Appointment and Promotion) Rules 1995.
The Executive Board further decided that a committee should be set
up by the Chairman to look into the issue, and to submit a proposal
to the Executive Board for the benefit of all NHA employees
Action By
20.
Member (Admn)
Additional Agenda Item-III
PC-I for Land Acquisition, Affected Properties
Compensation
&
Relocation
of
Utilities
for
Construction of Approach Roads/Road Network for
New Islamabad International Airport, Islamabad (NIIA,
formerly NBBIA)
Proposal
20.1.
The Executive Board is requested to recommend the PC-I
for Land Acquisition, Affected Properties Compensation & Relocation
of Utilities for Construction of Approach Roads/Road Network for New
Islamabad International Airport, Islamabad (NIIA, formerly NBBIA) at
a cost of Rs 13,830 million for approval of CDWP and ECNEC.
Deliberation
20.2.
The Member (Planning) briefed the Board. The Chairman
further added that the alignment of the project has been changed after
visit of the Prime Minister and the current alignment proposed herein
is deliberated upon in detail.
31
20.3.
The Chief (T&C) observed that it will be a revised project
therefore, fulfillment of all codal / procedural formalities be ensured.
20.4.
The Board deliberated and agreed with the proposal.
Decision
20.5.
The Executive Board cleared the PC-I for Land
Acquisition, Affected Properties Compensation & Relocation of Utilities
for Construction of Approach Roads/Road Network for New Islamabad
International Airport, Islamabad (NIIA, formerly NBBIA) at a cost of Rs
13,830 million for onward submission to CDWP and ECNEC for
subsequent approval.
Action By
Member (Planning)
21.
Conclusion
21.1.
The Chairman wrapped up the meeting by thanking the
Board Members for their active participation and useful input.
-----------------------
32
EXTRACTS
DRAFT MINUTES OF THE
234th EXECUTIVE BOARD MEETING
APRIL 22, 2014 AT ISLAMABAD
33

234 Executive Board Meeting of NHA

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NHA Executive Boards Confirmed Minutes

NATIONAL HIGHWAY AUTHORITY

234th Meeting of the NHA Executive Board held on Apr

Opening Remarks - Chairman NHA

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

Presentation by GM (P&CA) Regarding Award of

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

In 235th Executive Board meeting of May 22, 2014, during confirmation of

FORMAL BOARD PROCEEDINGS

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

b. Report of the Executive Board Committee on Elevation

In Agenda Item No 2 titled Amended PC-I for

. The VP-NESPAK further desired that

. The VP-NESPAK further desired that

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

In Additional Agenda Items I, II & III regarding

The subject agenda item was not discussed due to paucity

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

The subject agenda item was not discussed due to paucity

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

vehicular operating cost (VOC), including but not limited to reduced

The Board deliberated and cleared the proposal.

only for widening and improvement of Tarnol Railway Crossing at Km

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

The Member (Operations) presented the case.

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

The subject agenda item was not discussed due to paucity

Member (Aided Projects)

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

The subject agenda item was not discussed due to paucity

The Board deliberated and cleared the proposal.

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

The subject agenda item was not discussed due to paucity

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

(PaRRSA). Technical Working Party (TWP-I) in its 20th meeting held on

The Board deliberated and cleared the proposal.

The subject agenda item was not discussed due to paucity

The subject agenda item was not discussed due to paucity

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

Additional Agenda Item-I

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

Agreement. Out of total six (06) firms/joint ventures, who procured

Scope of Work: As specified in the Request for

Concession Period: Twenty (20) years commencing

234th Meeting, April 22, 2014, Islamabad

NHA Executive Boards Confirmed Minutes

Concession Area: Handing over of Concession Area

Shifting of Public Utilities: The cost and expense

Financial Close: The Concessionaire is obliged to

Construction Period: Construction period is thirty

Handing over of Tolling and Operational Rights: The