GUWAHATI, India, Nov. 30 -- Gauhati High Court issued the following order on Oct. 30:

1. Heard Mr. M Biswas, the learned counsel appearing on behalf of the petitioner. Mr. SK Medhi, the learned CGC appears on behalf of the respondents.

2. The present writ petition has been filed challenging the communication dated 18.07.2022, whereby the respondent authorities, more particularly, the respondent No.3, had terminated the contract with a penalty of 10%. For the purpose of deciding the dispute, this Court finds it pertinent to take note of the relevant facts, which led to the filing of the present writ petition.

3. A perusal of the records reveal that the respondent authorities had issued a Notice Inviting Tender (NIT) on 06.12.2021 inviting bids for the purpose of manufacture and supply of Elastic Rail Clip (for short, ERC) Marked-V as per RDSO' Drg.No.T-5919 confirming to IRS Specification for ERC T-31-2018 (Fourth Revision) and as amended up to date of opening. The said NIT had various clauses. For the purpose of the instant writ petition, it is pertinent to take note of some of the clauses. Clause 1.1 of the Instructions to the E-Tenderers stipulates that the tenderers have to carefully go through the instructions and all conditions as mentioned in paragraph 1.3 & 1.4 appended therein and by submitting the quotation, they undertake to abide by all types of conditions at paragraph 1.4. It was also stipulated that the tenderer's digital signature on the e-Tender form will be considered as their confirmation, unless specific deviation is quoted in the technocommercial offer form. The said Clause 1.1 of the Instructions to ETenderers being relevant is reproduced hereinunder:

"1.1. The tenderers are requested to carefully go through these Instructions and all the Conditions as mentioned in para 1.3 & 1.4 appended herein below. By submitting the quotation, they undertake to abide by all types of conditions at para 1.4. The tenderer's digital signature on the e-Tender form will be considered as their confirmation that they have read and accepted all the conditions laid down in the documents as well as tender schedule, comprising of techno-commercial offer form (including Special Conditions of Contracts for e-Procurement of Track Fittings, attached to e-Tender) and Financial offer form, unless specific deviation is quoted in the techno-commercial offer form."

4. It is further pertinent to mention that the tender documents included a set of conditions in the name and style of "Special Conditions of Contract for E- procurement of Track Fittings" (for short, "the SCC"). Clause 26 of the said SCC refers to the Deviation Clause. The said clause being relevant is reproduced hereinunder:

"26. Deviation Clause: In case intending Tenderer desires to quote deviation from the tender condition, the Tenderer should attache deviation sheet along with his offer and should indicate the cost of withdrawal of each such deviation sheet quoted by him. In cases, where the Firm does not submit any deviation sheet, it will be taken that the Firm has accepted all the terms & Conditions as per Tender Conditions."

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=zDLovBVSUw02H8XukOjXfPaUZec96hAfeTMy6Xu%2Brwor%2FspW8eANtBLmdnjya0fn&caseno=WP(C)/5135/2022&cCode=1&cino=GAHC010149822022&state_code=6&appFlag=)

Disclaimer: Curated by HT Syndication.