Abelardo Córdova: un funcionario, todos los gobiernos

5.1.1 When two or more persons have common intention communicated to each other to create some obligation between them, there is said to be an “Agreement”. An “Agreement” which is enforceable by law is a “Contract”.

5.1.2 According to Section 10 of the Indian Contract Act, 1872 only those Agreements are enforceable by law which is made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object and, are not expressly declared to be void. This is subject to any special law according to which a contract should be in writing and attested by witnesses.

5.1.3 The following are the essential ingredients of a contract:- a) Offer made by one person called the “Promisor”.

b) Acceptance of the offer, by the other person called the “Promisee”.

c) Doing of an act or abstinence from doing a particular act by promisor for promisee called “Consideration”.

d) The offer and acceptance should relate to something which is not prohibited by law.

e) Offer and acceptance constitute an “Agreement”, which when enforceable by law, becomes a “Contract”.

f) In order to make a valid and binding agreement, the parties entering into such an agreement should be competent to make such agreement.

5.1.4 For the purpose of an Agreement, there must be a communication of intention between the parties thereto. Hence in the forms of a Contract there is:

- A proposal

- Communication of the proposal

- A communication of the acceptance of the proposal.

5.1.5 The communication of acceptance of the proposal completes the Agreement. An offer may lapse for want of acceptance or be revoked before acceptance. Acceptance produces something which cannot be recalled or undone. A contract springs up as soon as the offer is accepted and imposes an obligation upon the person making the offer. It has been opined by the Ministry of Law that before communication of acceptance of an offer, the tenderer would be within his right to withdraw, alter and modify his tender unless there is a specific promise to keep the offer open for a specific period backed by a valid consideration.

5.1.6 Amendments to accepted Contracts:-

Amendments to the Contract being a Subsidiary Contract will be required to be made, whenever the scope of original Contract is to be changed. Tender accepting authority can amend the Contract provided that

i) The amended Contract amount is within his powers

ii) It does not involve enhancing the Contract rates originally quoted by the Contractor

iii) The final bill has not been signed by the Contractor

iv) The amendment is signed by both the parties to the original agreement. Proforma for Amendment to the Contract Agreement is at Annexure 5.1.

5.2 CONTRACT DOCUMENTS

5.2.1 RITES Standard Tender & Contract Document (2011 Edition), generally based on CPWD practices has been issued separately under three parts namely, Part I ‘Technical Bid’, Part II ‘Financial Bid’ and Part III ‘General Conditions of Contract.’

(A) Part I–Technical Bid

This consists of following sections

Section 1) Notice Inviting Tender and Instructions to Tenderers. Section 2) Tender & Contract Form

Section 3) Special Conditions Section 4) Schedules A to F

Section 5) Technical Specifications Section 6) Drawings

(B) Part II–Financial Bid

The revised standard formats for Percentage and Item Rate Tenders have been issued separately. These should be followed as applicable.

(C) Part III–General Conditions of Contract (2011 Edition) Section 7) Conditions of Contract

Section 8) Clauses of Contract Section 9) RITES ‘Safety Code’.

Section 10) RITES ‘Model Rules for Protection of Health and Sanitary arrangements for Workers’.

Section 11) RITES Contractor’s Labour Regulations'.

5.2.2 General Clauses of Contract (Compilation of Sections 7 to 11) should be issued as part of bidding document. Part III GCC will also be available with upto date Correction Slips uploaded in RITES’ website < www.rites.com>

5.2.3 In the case of tenders to be invited based on CPWD practice, Part III-GCC of the Standard Tender Documents should be adopted as far as possible without any modifications. In respect of Part I (sections 1 to 6), blanks should be filled up to

suit exigencies of a specific work taking care that there is no contradiction between provisions in different sections. In all cases of modifications the sanction of the Authority Competent to approve deviations from Standard Tender Documents (SOP Item 2.2) should be obtained.

5.2.4 Special case has to be exercised in preparation of Section 3, depending on the requirements of the client and scope of work. While standard formats have been laid down for all sections other than 3,5 and 6; the Project Coordinators will be required to make out these sections 3,5 and 6 with the assistance of Controlling Site Engineer and SBU office. General Guideline for preparation of these sections are given in subsequent paras.

5.2.5 Special Conditions

These should be made out in two parts as described below:

(i) Special Conditions relating to Clauses of Contract as covered by Section 8

These will cover modifications to Clauses of Contract (Section 8) by way of deletions, additions and alterations. For such items of Special Conditions, specific reference should be made to the Clause of Contract being modified, with Clause Number and Heading along with details of what modifications have been proposed. Clause numbers of these Special Conditions of Contract may be same as in GCC for ease of reference.

(ii) Additional Special Conditions

These will deal with items not covered by “Clauses of Contract” (Section 8). Since existing Clauses of Contract cover in detail practically all requirements of a Works Contract, there may not be the need for many clauses of “Additional Special Conditions”. But if there are any items, not relating to Technical Specifications but are required to be included based on Client’s requirements or Site specific needs, they can be included under “Additional Special Conditions”.

5.2.6 Technical Specifications

(a) These have to be made out in two parts as under: i) Standard Specifications:

These are printed documents issued by different organizations such as CPWD for Building works. Ministry of Surface Transport (Indian Road Congress) for Road and Road Bridge works and Indian Railways /RDSO for Track works and Railway Bridge Works. CPWD and MOST have also made out Standard Schedule of Rates corresponding to Standard Specifications and also Standard Analysis of Rates for each item of Schedule of Rates. As far as

Indian Railways Standard Specifications, Schedule of Rates and Analysis of Rates for Building works are concerned, though they have been approved by Railway Board, they have not been brought into force by all the Zonal Railways. Each Zonal Railway has made its own Standard Specifications and Schedule of Rates and they will be in use till they are replaced by Unified Indian Railway Specifications and Schedule of Rates/Analysis of Rates.

ii) Special Specifications

For non-schedule items which are not covered by Standard Schedule of Rates and hence by the Standard Specifications of the relevant organization, it will be necessary to draft Special Specifications for each item. These can be framed on basis of IS Specification/British Standard Specification or based on the Specifications issued by manufacturers. The Special Specifications should cover the exact scope of the item including specifications for materials, workmanship, method of measurement, quality control tests etc.

For Railway Track and Bridge works, for the present, the details contained in “RITES Specifications for Railway Track and Bridge works (September 2010)” may be used with any modification as required for items of works covered by the Book. Soft copy of these Specifications is available with Track and Survey wing of Rail Infrastructure Division at Gurgaon. For items not covered by the Book, extracts of relevant RDSO or Indian Railway Specifications or Specifications made out by the Zonal Railways may be relied upon to draft the “Special Specifications”.

(b) While the Tender Document will cover all identified Schedule and non- schedule items, during the course of execution of works, some extra or substituted items may be required to be operated. For such items, the same principles outlined in Para (a) above will apply depending on the scope of the item concerned.

5.2.7 Drawings

At the stage of invitation of Tender all drawings, adequate to understand the specific scope of work involved and those required for execution of the work at site for at least the first few months should be ready and included in the Tender Document.

5.3 LUMPSUM CONTRACT

RITES Standard Tender Documents envisage the works being carried out on item rate or percentage rate basis. But occasionally the clients may require that the Tenders be called on Lump sum basis. A note on Lump sum contract is at Annexure 5.2. The Tender Documents for Lump Sum Tenders will have to be made out with special care by suitably modifying RITES Standard Tender Document.

SECTION 6

PREPARATION OF TENDER DOCUMENTS AND PUBLICITY