| 1. |
i) |
|
The
terms “the Contract” shall mean the invitation to
quote instructions to prospective Suppliers, Quotations acknowledgement
of the acceptance, particulars as hereinafter defined and the
General and Special Conditions specified in the invitation to
quote subject to modifications, if any by the acceptance of quotation
or the special and general conditions specified in the acceptance
of quotation. |
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ii) |
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The
term “the Contractor shall mean the person with whom the
contract is made and shall include his heirs, executors administrators
or successors and permitted assignees as the case may be. |
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iii) |
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Contract
price shall mean the sum accepted or the sum calculated in accordance
with the prices accepted by or on behalf of the Government. |
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iv) |
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The
term “delivery” shall mean delivery by the dates specified
in the contract of stores which are found acceptable by the Inspector
and not the submission of stores which are not to the required
standard of which are not delivered by the dates. |
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v) |
|
The
term “Government” shall mean the Central Government. |
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vi) |
|
The
term “Secretary” means the Secretary of the Ministry
of Defence Supplies for the time being in the administrative charge
of the subject matter of the contract and includes Additional
Secretary, Special Security, Joint Secretary or Deputy Secretary
in such Ministry or Department, the Directors and every other
officer authorized for the time being to execute contracts relating
to purchase, development and supply of stores on behalf of the
President of India. |
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vii) |
|
The
term “drawing” shall mean the drawings and plans specified
in the schedule or specifications annexed to the invitation to
quote subject to modifications, if any, by the acceptance of quotation
and /or the schedule or specifications annexed to the acceptance
of quotation. |
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viii) |
|
The
term “the Inspector” shall mean any person nominated
by or on behalf of the purchase to inspect supplies, stores or
the work under the contract or his fully authorized agent. |
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ix) |
|
The
term “material” shall mean anything used in the manufacture
of stores. |
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x) |
|
The
term “Particulars” shall mean the following :- |
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|
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| a) |
Specification. |
| b) |
Drawing |
| c) |
Sealed
pattern denoting a pattern sealed and signed by the Inspector |
| d) |
Certified or sealed sample denoting a certified copy of
the sealed pattern or sample sealed by the Purchaser for
guidance of the Inspector. |
| e) |
Trade
pattern denoting a standard of the B.S.I. or other standardizing
authority or a general standard of industry and obtainable
in the open market. |
| f) |
Proprietary
make denoting the product of an individual firm. |
| g) |
Any
other details governing the construction, manufacture and
/or supply as existing for the contract. |
|
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xi) |
|
The
term “the stores” shall mean what the contractor agrees
to supply under the contract. |
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xii) |
|
The
term “test” shall mean such test or tests as the prescribed
by the specification or are considered necessary by the Inspector. |
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xiii) |
|
The
term “site” shall mean the place or places named in
the tender or such other place or places as may be approved by
the Purchaser at which any work has to be carried out. |
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xiv) |
|
Words
importing persons shall included any company or association or
body of individuals whether incorporated or not.
Words importing the singular only shll also include the plural
and vice versa where the context requires. |
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xv) |
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Writing
shall include any manuscript, typewritten or printed statement
under or over signature or seal as the case may be. |
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xvi) |
|
“Purchase”
means the purchaser named in the schedule of acceptance to the
tender and includes his successors or assignees. |
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xvii) |
|
“Consignee”
means the person specified in the contract to whom the stores
are to be delivered at destination in the manner specified therein. |
| 2. |
(i) |
|
AUTHORITY
OF PERSON SIGNING DOCUMENTS : |
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|
|
A
person signing tender or any documents relating to the contract
on behalf of contractor shall be deemed to warrant that he has
authority to bind the Contractor. If, it is discovered that the
person so signing has no authority to do so, the purchaser may,
without prejudice to any other right or remedy or signatory liable
for all costs and damages. |
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(ii) |
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NOTICE
ON BEHALF OF PURCHASER |
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|
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Notices
on behalf of the Purchaser in connection with this contract, may
be given by any officer authorized in that behalf. |
| 3. |
RESPONSIBILITY
FOR EXECUTING CONTRACT |
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(i) |
|
CENTRAL
: The Contractor is to be entirely responsible for the
execution of the contract in all respects in accordance with the
terms and conditions as specified hereunder. Any approval which
the Inspector may have given in respect of the stores, material
or other particulars and the work or the workmanship involved
in the contract (whether with or without test carried out by the
Contractor or the Inspector) shall not bind the Purchaser and
not withstanding any approved or acceptance given by the Inspector,
it shall be lawful for the consigned of the stores on behalf of
the Purchaser to reject the stores / supplied by the Contractor
are not in conformity with the terms and conditions of the contract
in all respects. |
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(ii) |
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SUBMITING
OF CONTRACT :The Contractor shall not sublet, transfer
or assign the contract or any part thereof without the Contractor
contravening this condition the Purchaser shall be entitled to
place the contract elsewhere on the Contractor in account . |
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(iii) |
|
ASSISTANCE
TO CONTRACT : The Contractor shall not, except to the
extent specifically agreed to by the purchaser in the contract
be entitled to assistance either in the procurement of raw materials
required for the fulfillment of the contract or in the securing
of the transport facilities. Any assurance or assistance given
or attempted to be given to the Contractor in regard to these
and not covered by the term of the contract shall not be construed
as a representation that the Purchaser is willing to waive its
rights under this or any other condition of the contract. Provided,
however, that in the event of such assistance resulting in the
Contractor obtaining materials at cot lower than their market
prices entitled to a proportionate reduction in the prices of
the finished articles. |
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3-A |
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USE
OF RAW MATERIALS SEQUIRED WITH PURCHASER’S ASSISTANCE : |
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|
|
Where
any raw materials for the execution of the contract are procured
with the assistance of the Purchaser either y issue from Government
stocks or by purchase under arrangements made or permit(s) or
License(s) quota certificate or release order issued by or on
behalf or under the authority or the Government, the Contractor
(i) shall hold the said materials as trustees for the purchasers
(ii) shall use such materials economically and solely for the
purpose of the contract against which they are issued (iii) shall
not dispose of the same with out the permission of the purchaser
and (iv) shall return if required by the Purchaser all surplus
or unserviceable materials that may be left with him after the
completion of the contract or at its termination for any reason
whatsoever, on his being paid such price as Purchaser may fix
with due regard to the condition of the material. The freight
charges for transportation of the material according to the directions
of the purchaser shall be borne by the Contractor, in the event
of the contract being cancelled for any default on this part.
The decision of Purchaser in this regard shall be final and conclusive.
In the event of a breach of aforesaid conditions, the Contractor
shall in addition to throwing himself open to action for contravention
of terms of the license(s) or the permit(s) quota certificate
or release order and /or for advantages or profits resulting or
which in the usual course would have resulted to him by reason
of such breach.
|
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3-B |
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QUOTATION
OF RATES BY CONTRACTORS : |
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|
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The
price quoted by the Contractor shall not in any case exceed the
controlled price if any fixed by the Government or under any law
or the reasonable price which it is permissible for him to change
private purchaser for the same class and description of goods
under the provision of any law for the time being in force .If
the price quoted exceeds the controlled price or the price permissible
under the law the contractor will specifically mention this fact
with his quotation along with the reasons of quoting such higher
price. The Purchase at its discretion will in such cases exercise
of revising the price at any stage so as to conform with the controlled
price. This discretion will be exercised without prejudice to
any other action that may be taken against the contractor. |
| 4. |
SPECIFICATION
ETC : |
| |
i) |
|
Generally
the stores shall be of the best quality and workmanship and comply
with the contract and in all respectable to the satisfaction of
the Inspector. |
| |
ii) |
|
In
particular and without prejudice to the foregoing conditions and
in addition there to when quotations are called for in accordance
with the “Particulars” the Contractor’s quotation
to supply in accordance with such particulars, shall be deemed
to be an admission on his part that he has fully acquainted himself
with the details thereof and no clue on his part which may arise
on account of non-examination of the ‘Particulars’
will in any circumstances be considered. |
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iii) |
|
The
Contractor shall supply the stores in accordance with the particulars
(unless/deviation is authorized as an exceptional case and expressly
specified in the contract). |
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iv) |
|
If
the specification and/or drawing exists then the sealed pattern
or certified sample thereof will govern supply only to the extent
workmanship and finish. If neither a specification nor a drawing
exists then the sealed pattern or certified sample thereof will
govern supply in all respects. |
| |
v) |
|
When
neither specification drawing nor pattern is available to govern
supply, the supply must be of quality, material, pattern and workmanship
which the purchaser has agreed will be acceptable and the contractor
has undertaken to supply. And when under these circumstances a
contractor’s sample has been approved by the inspector,
the stores supplied must be equal in all respects to such sample. |
| |
vi) |
|
If
any dimensions figured upon a drawing differ from these obtained
by scaling the drawing , the contractor shall bring the discrepancy
to the notice of the Inspector and the Purchaser . The Inspector’s
decision in the matter shall be final. |
| |
vii) |
|
Alteration
of specifications, Patterns and Drawings :
Purchaser
reserves the right from time to time main specifications and drawings
and as from the dates specified in that regards the stores shall
be in accordance with the specifications, pattern and drawing
as so altered. In the event any such alteration involving an alteration
involving an alteration in the cost of, or in the period required
for production, a version of the contract price and of the time
for delivery shall be made in relation to the articles, the subject
of the alteration. The decision of the Purchaser on the questions
whether the alteration in the cost of or in the period required
for production shall be final and conclusive. |
| 5 |
SAMPLES
: |
| |
i) |
|
Advance
Samples : There an advance sample is required to be approved
under the terms of the contract, the Contractor shall submit the
sample to the Inspector within the time specified in the contract.
If the contractor is unable to do so, he must apply immediately
to the office issuing one contract for extension of time, stating
the reason for the delay. If the purchaser to satisfied that a
reasonable ground for an extension of time exists, he may allow
such additional time as he considered to be justified (and his
decision shall be final) without altering the deliver period stipulated
in the contract. In the event of the failure of the contractor
to deliver the advance samples by the date specified in the contract
or any other date to which the time may be extended as aforesaid
by the Purchaser shall be entitled to cancel the contract and
if so desired purchase the stores at the risk and cost of the
contractor. |
| |
ii) |
|
Charges
: All the samples required for test shall be supplied
by the Contractor free of cost unless the contract provides otherwise.
Where the sample which is supplied free is rejected after examination
and test the sample or whatever remains of the sample after examination
and test will be returned to the contractor at this cost on request
made within three months of the date of rejection . In case any
stores belonging to the Purchaser have been utilized for the sample,
the Contractor shall, in addition be liable, to pay the amount
demanded by the Purchaser as cost/damage on its stores. |
| |
iii) |
|
Marking
:All samples submitted must be clearly labeled with the
Contractor’s name and address and contract number. |
| |
iv) |
|
Not
to govern standard : If the Contractor submits a sample
with his quotation the sample shall not govern the standard of
supply except when it has been specifically stated in the contract
that it is accepted instead of any special pattern. |
| |
v) |
|
Deliveries
: |
| |
|
|
a)
The Contractor is advised to submit samples of stores he proposes
to submit for inspection for the first consignment for test before
proceeding with bulk manufacture of delivery. |
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|
|
b)
If specially so marked and will be inspected and the result of
the inspection will be notified immediately to the contractor. |
| 6. |
RISK
OF LOSS OR DAMAGE TO PURCHASER’S PROPERTY : |
| |
i) |
|
The
contractor guarantees the due return of all purchase property
including the particulars issued to him and will be responsible
for the full value thereof to be assessed by the office issuing
the contract for all loss thereof damage there to from whatever
cause happening while in the possession or control of the Contractor,
his servants, ---- or agents. |
| |
ii) |
|
In
cases in which the Government’s or purchaser’s property
is insured against fire by the contractor at the request of the
purchaser such insurance shall be deemed to be affected by way
of additional precautions with the object of minimizing the loss
to the contractor but without prejudice to the liability of the
contractor under sub-clause 6(a) above. |
| 7. |
PACKING
: |
| |
i) |
|
Responsibility
for proper packing : The contractor will be responsible
for the stores being sufficiently and properly packed for transport
by rail, road and sea so as to ensure their being free from loss
on injury on arrival at their destination. The packing of stores
shall be done by and at the expense of the Contractor. |
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ii) |
|
Packing
materials free supply : All packing cases, containers,
packing and other similar materials should be supplied free by
the contractor and same shall not be returned unless otherwise
specifically agreed upon. |
| |
iii) |
|
Marking
of Packages, packing etc : Each bale or package delivered
under this contract shall be marked by and at the expense of the
contractor and in particular must be distinctly marked (all previous
irrelevant markings being carefully obliterated) with the description
and quantity of the contents with the consignee’s name and
address wit description, weight for the purpose of verification
on the contractors packing account. All markings should be carried
out with a paint satisfactory to the inspector as regards quickness
of drying, fastness and indelibility. If the stores are not packed
and marked in accordance with the instructions, or in cases where
the packing materials are delivered separately and they are not
in accordance with those instructions or not marked according
to them, consignments are liable to be rejected by the Inspector,
whose decision as to the sufficiency of otherwise compliance with
the instructions shall be final. Repacking, if any, required by
the Inspector before onward dispatch shall, if not carried out
by the contractor within a reasonable time of demand therefore,
be carried out by the Inspector at the cost of the Contractor. |
| |
iv) |
|
Packing
Note : Each bale or packing shall contain a packing note
quoting specifically the same of the Contractor, the Contract
and/or supply or repeat order number and date, the destination
of the stores and the quantity contained in the bale or package. |
| 8. |
CHARGES
FOR WORK NECESSARY FOR COMPLETION OF CONTRACT : |
| |
The
Contractor shall pay all charges for handling, stamping, marking,
drawings, templates, model and gauges for protecting and preserving
patent rights and for all such measures as the Inspector may deem
necessary for the proper completion of the contract. Special provision
therefore may not be made in the particulars. |
| 9. |
DELIVERY
: |
| |
i) |
|
Time
for and date of delivery, the essence of the Contract : The time
for and the date of delivery of the stores stipulated in the contract
shall be deemed to be of the essence of the contract, and delivery
must be completed not later than the dates specified therein.
The time given for delivery or dispatches dates from receipt by
the Contractor of the contract or supply order together with all
necessary information and drawings to enable the work to be put
in hand. |
| |
ii) |
|
Notification
by Contractor : Notice in writing shall be sent by the Contractor
to the Inspector when the stores to be supplied are ready for
submission for inspection and test. The Purchaser ( and not the
Inspector) is responsible for immediately notifying the Contractor
if submission is to be retarded. |
| |
iii) |
|
Failure
and Termination : Should the Contractor fail to deliver the stores
or any consignment thereof, within the period prescribed for such
delivery, the purchaser shall be entitled at its option either
:- |
| |
|
a) |
To
recover from the Contractor as agreed liquidation damages, and
not by way of penalty a sum of 2 % of the price of any stores
which the Contractor has failed to deliver as aforesaid, for each
month or part of a month exceeding 15 days during which delivery
of such stores may be in arrears, or |
| |
|
b) |
To
purchase else where, without notice to the Contractor and at the
risk and cost of the Contractor, the stores not delivered or other
of a similar description (where stores exactly complying with
the particulars are not in the option of the Purchaser which shall
be final, readily procurable) without canceling the contract in
respect of the consignments not yet due for delivery, or |
| |
|
c) |
To
cancel the contract or a portion thereof and if so desire to purchase
or authorize the purchase of the stores not delivered or other
of a similar description ( where stores exactly complying with
the particulars are not in the option of the purchaser which shall
be final readily procurable) at the risk of the Contractor. |
| |
|
|
In
the event of action being taken under (b) or (c) above, the Contractor
shall be liable for any loss which the purchaser may sustain on
that account, provided that the purchase or, if there is an agreement
to purchase, then such agreement, is made within six months of
the date of such failure. But he Contractor shall not be entitled
to any gain on such purchase made against default. The manner
and method of such purchase shall be in the entire discretion
of the purchaser whose decision shall be final. It shall not be
necessary for the purchaser to serve a notice of such repurchase
on the defaulting Contractor. This right shall be without prejudice
to the right of the purchaser to recover damages for breach of
contract by the Contractor. |
| |
|
|
In
the event of the determination/ cancellation of the contract for
any reason whatsoever or on complete performance thereof the purchaser
may, at its option (without prejudice to any right which may be
available to the Purchaser under any law for the time being in
force) by notice in writing to the Contractor require the contractor
to deliver to the purchaser all or any part of the materials so
required (fabricated or otherwise) in his possession or control,
got or ordered by him whether in the normal course of business
or under special terms arranged through the intervention of the
purchaser on its behalf for the performance of the said contract
or any part thereto and thereupon the following provisions shall
have effect :- |
| |
|
a) |
The
contractor shall, subject to any recoveries that the Purchaser
may be entitled to be paid the cost price of the materials so
delivered and not rejected as herein after provided plus a reasonable
charge for handling. |
| |
|
b) |
In
case at any time after the issue of the said notice, the purchaser
shall be of opinion that the materials are damaged or unsuitable
for the purchaser’s requirements the purchaser may reject
and return such materials. |
| |
|
c) |
In
respect of materials supplied through the intervention of the
purchaser or on his behalf and not taken over by the purchaser,
at the request of the contractor or with his consent, the contractor
shall settle all claims of the supplier including any claims to
pay extra charge (if the original stipulated terms had been concessional
) and keep the purchaser indemnified against the same. |
| |
|
d) |
In
respect of finished articles rejected as not being up to specification
or the standard of the accepted or sealed sample the purchaser
shall have the first option to take over the articles on payment,
to the contractor of cost of raw materials actually expended in
the production thereof together with reasonable fabrication charges
and the purchaser’s decision on both shall be final and
conclusive. |
| |
(iv) |
|
Extension
of time: |
| |
|
a) |
As
soon as it is apparent that contract dates cannot be adhered to,
an application shall be sent to the office issuing the contract
and a copy thereof addressed both to Inspector and the Inspector
and the Indenter specified in the schedule.
Should,
however, deliveries be made after the expiry of the contract delivery
period without prior concurrence of the purchaser and be accepted
by the Inspector/Consignee such deliveries will not deprive the
purchaser of this right to recover liquidated damages under Clause
9(ii)(a) above.
Provided
that where supplies are made within 21 days of the expiry of the
date of delivery of the stories originally stipulated in the contract
(but not any extended date of delivery) the inspecting officer
mentioned in the schedule to the contract may extend the delivery
date up to the period of 21 days as * on application to him by
the contractor in this behalf, unless the contract specifically
provides that this provision will not apply. |
| |
|
b) |
Without
prejudice to the foregoing rights , if such failure to deliver
in proper time as aforesaid shall have arisen from any cause which
the purchaser may admit as a reason able ground for an extension
of the times (and its decision shall be final) it may allow such
additional time as it consider to be justified by the circumstances
of the case . |
| |
|
c) |
Provided
always that any failure or delay on the part of sub-contractor
though their employment may have been sanctioned shall not be
admitted as a reasonable ground for any extension of time or for
exempting the contractor from liability for any such loss or damage
as aforesaid and provided further that no extension shall be allowed
unless application for it shall in the opinion of the purchaser
(which shall be final) have been made in its opinion, is justified. |
| |
(v) |
(a) |
Place
of delivery : The contractor, shall as may be required
by the government , deliver the stores either free at or for the
place or places detailed in the schedule here to and not later
than on the dates specified in the contract. |
| |
|
(b) |
Notification
of dispatch : Notification of the deliver dispatch in
regard to each and every consignment be made to the authorities
named in the form prescribed for the purpose , copies of which
will be furnished * of charge by the office issuing the contract.
The contractor shall further supply to the consignee a packing
account quoting the contract and/or supply repeat order No. and
date of all stores dispatched . All packages containers, bundles
and loose materials forming part of each and every consignment
shall be described fully in the packing account and full details
of contracts of packages and quantity of materials are to be given
to enable the consignee to check the stores on arrival at destination
. The railway receipt shall be forwarded to the consignee immediately
after dispatch of stores, otherwise the demurrage charges (if
any) paid by the consignee will be recoverable from the contractor. |
| 10. |
FREIGHT: |
| |
Stores
shall be dispatched at Public Tarrif Rate Of Military Concession
rate as may be specified in the schedule accompanying the acceptance
of Tender/supply order . In case where Railway Material concession
rates or Military concession rates are admissible, the purchaser
will indicate the authority from whom the Railway Material Consignment
Note or Permit or Military Credit Note should be obtained if the
documents does not accompany the Acceptance of Tender/supply order.
The grant of a Military Credit Note shall not projudice the right
of inspection and rejection at destination.
In
the case of an “F.O.R. station on dispatch” contract
the stores should be booked at full wagon rates whenever available,
and by the most economical route failure to do which will render
the contractor liable for the whole or part of any avoidable expenditure,
caused to the purchaser. Where alternative route exist, the purchaser
shall, if called upon to do so, indicate the most economical route
available or name the authority whose advice in the matter should
be taken and acted upon.
|
| 11. |
INSPECTION
AND REJECTION : |
| |
(i) |
Facilities
for Test and Examination : The contractor shall afford
at his own expense the Inspector all reasonable accommodation
and facilities for satisfying himself that the stores are being
or have been manufactured in accordance with the particulars and
for this purpose the Inspector shall have full and free access
at any time during the contract to the contractor’s works
and may require the contractor to make arrangements for anything
to be inspected at this premises or at any other places and the
contractor shall reserve a similar right as regards any sub-contract
he may make.
The
contractor shall pay all costs connected with such tests and provide
without extra charge all materials, tools, labour and assistance
of very kind which the Inspector may consider necessary for any
tests and examination, other than special or independent tests,
which he shall require to be made on the Contractor’s premises,
and shall pay all costs attendant thereon, failing these facilities
(in regard to which the Inspector will be sole judge) at his own
premises for making the tests, the contractor shall bear the cost
of carrying out such tests else-where.
The
contractor shall also provide and deliver free of charge at such
places as the Inspector may direct such material as he may require
for tests by analysis (e.g. Chemical Biological, Pharmacological
and by other means of testing commonly in use according to the
nature of stores) on independent testing machine.
In
the event of such test being unsatisfactory and resulting in or
leading to the rejection of the stores or any part thereof concerned,
or in the event of the stores or any part thereof concerned, or
in the event of the disposal of the inspected stores by the contractor
and his consequential failure to deliver the same within the period
prescribed, the costs of the test or of inspection as the case
may be, shall be borne by the contractor and paid by him to the
purchaser on demand. Such costs will be assessed at the rates
charged by the laboratory concerned for work done for private
firms and individuals.
|
| |
(ii) |
Methods
of Test : The inspector shall have the right to put all
stores or materials forming part of same or any part thereof to
such tests as he may think proper for the purpose of ascertaining
whether the same are in accordance with the particulars and to
cut out or off and/or destroy a portion from each delivery for
such purpose without prejudice to this right. |
| |
|
(a) |
Stores
expended in test :If the test proves satisfactory and the consignment
is accepted, the quantity of the stores or material expended in
test will be paid for by the purchaser. |
| |
|
(b) |
If
the stores or material fail in test and the consignment is rejected,
the quantity of the quantity expended in test will be treated
as not having been delivered. |
| |
(iii) |
Inspector
: He will be the Final Authority to inspect and to certify
performance. |
| |
|
(a) |
The
Inspector shall also have power before any stores or parts thereof
are submit for inspection to certify that hey cannot be tested
or inspected in accordance with the contract owing to the method
of manufacture not being satisfactory. |
| |
|
|
OR |
| |
|
(b) |
To
reject any stores submitted as not being in accordance with the
particulars. |
| |
(iv) |
Inspection
and Rejection : The Inspector may reject the whole consignment
tendered for Inspection if, after inspection of such portion thereof
as he may decide in his discretion, he is satisfied that the consignment
is unsatisfactory. |
| |
(v) |
Rejection
: If any stores are rejected as aforesaid then without
prejudice to the foregoing provisions, the purchaser shall be
liberty to :- |
| |
|
(a) |
Allow
the contractor to resubmit stores in replacement of those rejected
within a time specified by the purchaser, the contractor entitled
to any extra payment, or |
| |
|
(b) |
Buy
the quantity of the stores rejected or others of a similar nature
or description elsewhere at the risk and cost of the contractor
without affecting the contractor’s liberty as regards supply
of any further consignment due under the contract or |
| |
|
(c) |
Terminate
the contract and recover from the contractor the loss the purchaser
thereby incur. In case of contract entered into on “f.o.r.
station of despatch” basis, the contractor shall, if sores
are rejected as destination, be liable to pay the freight at public
tariff rates to the purchaser even if the purchaser had actually
paid freight at Railway Materials or Military Concession Rate. |
| |
|
(d) |
The
Inspector’s decision as regards rejections as aforesaid
shall be final and binding on the parties. The contractor shall
not be entitled to any gain on repurchase. |
| |
(vi) |
Marking
of rejections : If considered desirable by the Inspector,
rejected stores will be marked with a small rejection mark, so
that they may be easily identified if resubmitted and the contractor,
shall not be entitled to claim anything on that account. |
| |
(vii) |
Notification
of result of Inspection : Unless otherwise provided in
the specification or schedule, the examination of the stores will
be made as soon as practicable after receipt, and the result of
the examination will be notified to the contractor. |
| |
(viii) |
Removal
of Rejections : Any stores submitted for inspection and
rejected by the Inspector must be removed by the contractor within
fourteen days from the date of receipt of intimation of rejection;
provided that in the case of dangerous infected or perishable
stores the inspector (whose decision will be final) shall notify
the contractor to remove such stores within 40 hours of receipt
of intimation of rejection and if shall be the duty of the contractor
to remove them accordingly. Such rejected stores shall lie at
the contractor risk from time of such rejection and if not removed
within the aforementioned time the purchaser shall have the right
either to return the rejected stores at the contractor’s
risk and cost by such mode of transport as the purchaser or Inspector
may select, or to dispose of or segregate such stores as it thinks
fit at the contractor’s risk and on his account and to retain
such portion of the proceeds as may be necessary to cover any
loss or expense incurred by or on behalf of the purchaser in connection
with the said sale. Freight to destination on stores rejected
after examination at destination shall be recoverable from the
contractor at the Public Tariff rate. |
| |
(ix) |
Inspection
Certificate or Receipt Vouchers : On completion of the
inspection, the contractor will be furnished by the inspector
with necessary copies of inspection certificate or Receipt Vouchers
duly completed to be attached to the contractor’s bill in
support thereof. |
| 12. |
RECOVERY
OF SCHEDULE : |
| |
Whenever
any claim for the payment of a sum of money arises out of or under
this contract against the contractor, the purchaser shall be entitled
to recover such sum by appropriating in part or whole, the security
deposited by the contractor, if a security is taken against the
contract, and to sell any Government Promissory Notes, forming
the whole or part of such security. In the event of the security
being insufficient or if no security has been taken from the contractor,
then the balance or the total sum recoverable, as the case may
be, shall be deducted from any sum then due or which at any time
thereafter may become due to the contractor under this or any
other contract with the Government including the Purchaser or
any other person or persons contracting through the Government.
Should this sum be not sufficient to cover the full amount recoverable,
the contractor shall pay to the purchaser on demand the remaining
balance due. |
| 13. |
SYSTEM
OF PAYMENT : |
| |
(i) |
Unless
otherwise agreed between the parties, payment for the cost of
stores will be made by the CDA/ of the command specified in the
contract. |
| |
(ii) |
Payment
for the stores or for each delivery will be made to the contractor
on submission of bills as detailed below:- |
| |
|
(a) |
95
per cent of the price of each consignment will be paid on proof
of dispatch of stores to the consignee and on production of an
inspection note issued by the Inspector, number and date of the
railway receipt under which the goods charged for in the bill
and dispatched by rail and the number and date of letter with
which such railway receipt is forwarded to the consignee, should
be quoted on the bill. In case of stores dispatched by post, the
postal receipt should be attached in original to the bill and
its number and date quoted thereon. The balance of 5% will be
paid, on receipt of consignment in good condition by the consignee,
a certificate to the effect endorsed on the copy of the inspection
note which shall accompany the bill submitted by the contractor. |
| |
|
(b) |
Alternatively
at the contractor’s option the full value of the stores
will be paid after inspection on receipt of the consignment in
good condition by the consignee. |
| |
|
(c) |
Where
the Inspector also acts as the consignee or where inspection as
carried out by the consignee himself at destination and in all
cases of local, delivery full payment shall be made on submission
“Final 100 per cent bill” supported by the Inspector
Certificate and Consignee’s Receipt to the Accounts Officer
concerned. In the case of local delivery, advance payment may
be allowed on proof of inspection and delivery to the consignee
the proof of which delivery being provisional certificate from
the consignee. The balance 5% will be payable on Final acceptance
by the consignee as recorded in his final ‘Receipt Certificate’.
The standard form of provisional certificate referred to above
will be under:
“This
is a provisional receipt. It only be taken the receipt of stores
by the consignee and is without prejudice to his rights of inspection
and rejection under the General Conditions of Contract. It is
issued on said to contain basis the contractor remaining responsible
for proving the total quantities, actually deliver. “ |
| 14. |
LAWS
GOVERNING THE CONTRACT: |
| |
(i) |
Thus
contract shall be governed by the Laws of India for the time being
in force. |
| |
(ii) |
The
marking or all stores supplied must comply with the requirements
of the Indian Acts relating to trade and Merchandise Marks and
of the rules made under such acts. |
| 15. |
INSOLVENCY
AND BREACH OF CONTRACT: |
| |
The
purchaser may at any time by notice in writing summarily determine
the contract without compensation to the contractor in and of
the following events that is to say: - |
| |
(i) |
If
the contractor being an individual or if a firm, any partner in
the contractor’s firm shall at any time be adjudged insolvent
or shall have a receiving order or order for administration of
his estate made against him or shall take any proceedings for
liquidation of composition under any Insolvency Act for the time
being in force or make conveyance or assignments of his effects
or enter into any arrangement or composition with his creditors
or suspend payment, or if the firm be dissolved under the partnership
Act, or |
| |
(ii) |
If
the contractor being a company shall pass a resolution or the
court shall place an order for the liquidation of its affairs
or a receiver or manager on behalf of the debenture holders shall
be appointed or circumstances shall have arisen which entitle
the court of debenture holders to appoint a receiver or manager,
or |
| |
(iii) |
If
the contractor commits any breach of this contract not herein
specifically provided for, Provided always that such determination
shall not prejudice any right action or remedy which shall have
accrued or shall accrue thereafter to the purchaser and provided
also that the contractor shall be liable to pay the purchaser
or any extra expenditure he is thereby put to but shall not he
entitled to any gain on repurchase. |
| 16. |
ARBITRATION
: |
| |
In
the event any question, dispute or difference arising under these
conditions or any special conditions of contract ,or in connection
with this contract, ( except as to any matters the decision or
which is specially provided for by these or the special conditions),
the same shall be referred to the sole arbitration of the Secretary,
Ministry of Defense, Department of Defense Supplies or of some
other person appointed by him. It will be no objection that the
arbitrator is a Government servant that he had to deal with the
matters to which contract relates( in the course of his duties
as a Government servant he has expressed views on all or any of
the matters in dispute of difference). The award of the arbitrator
shall be final and binding on the parties to this contract. It
is a term of this contract that : |
| |
(i) |
If
the arbitrator be the Secretary, Ministry of Defense, Department
of Defense Supplies. |
| |
(ii) |
In
the event of his being unable to act or becoming incapable of
acting for any reason, it shall be lawful for him to appoint another
person as arbitrator, or |
| |
(iii) |
In
the event of his being unable to act or becoming incapable or
acting for any reason, it shall be lawful for him to appoint another
person as arbitrator, or |
| |
(iv) |
If
the arbitrator be a person appointed by the Secretary, Ministry
of Defense, Department of Defense Supplies in the event of his
dying, neglecting or refusing to act, or resigning or being unable
or becoming incapable to act, for any reason, or his award being
set aside by the court for any reason it shall be lawful, for
the Secretary, Ministry of Defense, Department of Defense Supplies,
either to proceed with the reference himself or to appoint another
person as arbitrator in place of the outgoing arbitrator. In every
such case, it shall be lawful for the Secretary, Ministry of Defense,
Department of Defense Supplies in place of the outgoing arbitrator,
to act on the record of the proceedings as the existing and on
the evidence, if any, then taken in the arbitration, or to commence
the proceedings de move, as he may in his discretion decide. |
| |
It
is further a term of this contract that a person or the Secretary,
Ministry of Defense, Department of Defense Supplies, or the person
appointed by him should act a arbitrator and that if for any reason
that is not possible, the matter is not to be referred to arbitration
at all. The arbitrator may with the consent of the parties, enlarge
the time from time for making and publishing the award.
Upon
every and any such reference, the assessment of the costs incidental
to the reference and award respectively shall be in the discretion
of the arbitrator.
Subject
as aforesaid, the Arbitration Act, 1940 and the rules there under
and any statutory modifications thereof for the time being in
force shall be deemed to apply to the arbitration proceedings,
under this clause.
Work
under the contract shall, if reasonable possible, continue during
the arbitration proceedings and no payment due to or payable by
the Purchaser shall be withheld on account of such proceedings.
The
venue of arbitration shall be the place where the contract is
concluded or such other place as the purchaser at his discretion
may determine.
In
this clause the expression “the Secretary, Ministry of Defense”
means the Secretary, Ministry of Defense, Department of Supplies,
Defense for the time being and include, if there be no Secretary,
Ministry of Defense, Department of Defense Supplies, the officer
who is for the time being the administrative head of the Ministry
of Defense, Department of Defense Supplies whether in addition
to other functions or otherwise.
|
| 17. |
For
the purpose of the contract including arbitration proceedings
there under, the Secretary , Ministry of Defense, Department of
Defense Supplies, shall be entitled to exercise all the right
and powers of the purchaser. |
| 18. |
HEADINGS
OF CLAUSES: |
| |
The
headings of clauses here to shall not affect the construction
thereof. |
| 19. |
SECURITY
DEPOSIT: |
| |
(i) |
On
acceptance of the tender the contractor shall at the option of
the purchaser, and within the period specified, by him, deposit
with him a security deposit not exceeding 10 per cent of the value
of the contract and not less than a minimum of Rupees twenty five
as he shall specify and the security shall be any of the following
forms:- |
| |
|
(a) |
Cash,
Money Orders, Bank Deposit Receipts of the State Bank of India
or any of its subsidiaries or Government Treasury Receipts paid
to or in favor of the Purchaser, Fixed Deposit Receipts of a Schedule
Bank, other than the State Bank of India or any of its subsidiaries,
may also be accepted provided the Bank concerned deposits with
the purchaser, or with the Reserve Bank of India, cash on Government
securities cover the Fixed Deposit Receipts, with a margin of
5% below the market price. Post Office Savings Bank(security Deposit
Account) Pass Book pledging the amount in deposit in favor of
the purchaser may also be accepted. |
| |
|
(b) |
Promissory
Notes and stock certificates of the Central Government or a State
Government, Municipal debentures or Port Trust Bonds at five per
cent below the market price or at their face value whichever is
less, Treasury Savings Deposits, Post Office Cash Certificates,
or Defense Savings Certificates at their surrender value at the
time of quotation endorsed in favor of the purchaser. |
| |
|
(c) |
National
Plan, National Savings or National Plan Savings Certificates at
their surrender value at the time of tender endorsed in favor
of the purchaser. No other from of security shall be accepted. |
| |
(ii) |
If
the contractor is called upon by the purchaser to deposit “Security”
and the contractor fails to provide the security within the period
of specified, such failure will constitute a breach of the contract
and the purchaser, shall be entitled to make other arrangements
at the risk and expense of the contractor and in that event the
provisions of clause 9 hereof shall apply as far as possible. |
| |
(iii) |
No
claim shall lie against the purchaser either in respect of interest
if any due on Security Deposits or depreciation in value. In the
case of Bank Deposit receipt the purchaser shall not be responsible
for any loss that may result on account of the failure of the
Bank. |
| |
(iv) |
If
the contractor fails or neglects to observer or perform any of
his obligations under the contract it shall be lawful for the
purchaser to forfeit either in whole or in part, in his absolute
discretion, the security deposit furnished by the contractor,
save as aforesaid on the due performance and completion of the
contract in all respects, the security deposit will be returned
to the contractor without any interest on presentation of an absolute
“No demand certificate” in the prescribed form and
upon return in good condition of any specifications, drawings,
samples or other property belonging to the purchaser which may
have been issued to the contractor. |
| 20. |
SET-OFF: |
| |
Any
sum or money due and payable to the contractor (including security
deposit returnable to him) under this contract may be appropriated
by the Government/Purchaser and set-off against any claim of the
Government/Purchaser for the payment of a sum of money arising
out of or under any other contract made by the contractor with
the Government/Purchaser |