4194- contractlaw
TRANSCRIPT
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 1/12
Public Procurement 2011
Published by Global Legal Group withcontributions from:
Arntzen de Besche Advokatfirma ASArzinger
Ashurst LLPBech-BruunBorenius & KemppinenDebarliev, Dameski & Kelesoska Attorneys at LawDLA Phillips FoxFried Frank Harris Shriver & Jacobson LLPGarayar Asociados Abogados, S.L.Georgiev, Todorov & CoGÖRG Partnerschaft von RechtsanwältenGrasty Quintana Majlis & CiaHeenan Blaikie LLP
Hergüner Bilgen ÖzekeJ. Sagar AssociatesLambadarios Law FirmLee & KoLETLAWM. & M. BomchilMamo TCV AdvocatesMannheimer Swartling Advokatbyrå ABMatheson Ormsby PrenticeMeitar Liquornik Geva & Leshem Brandwein, Law OfficesPachiu & AssociatesRui Pena, Arnaut & Associados
SchoenherrStibbeTozziniFreire AdvogadosVarul Vilgerts SmaliukasWigley & Company
The International Comparative Legal Guide to:
A practical cross-border insightinto public procurement
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 2/12
WWW.ICLG.CO.UKCLG TO: PUBLIC PROCUREMENT 2011© Published and reproduced with kind permission by Global Legal Group Ltd, London
Chapter 17
103
J. Sagar Associates
India
1 Relevant Legislation
1.1 What is the relevant legislation and in outline what doeseach piece of legislation cover?
At the apex of the Indian legal framework governing public
procurement is Article 299 of the Constitution of India, which
stipulates that all contracts made in the exercise of the executive
power of the Union of India, or by a State Government, shall be
made in the name of the President of India or by the Governor of
the State, as the case may be, and be executed on behalf of the
President or the Governor by such person as he may direct.
The Indian Contract Act, 1872 and the Sale of Goods Act, 1930 are
the major Legislations governing contracts of sale/purchase of
goods and services in general.
At the federal level, there is no legislation exclusively governing public procurement of goods in India, though at the state level
certain state legislatures (like Tamil Nadu) have enacted such laws.
However, comprehensive rules and directives have been put in
place at the federal level in terms of (i) the General Financial Rules
(GFR), 2005, (ii) the Delegation of Financial Powers Rules
(DFPR), (iii) the Manual on Policies and Procedures for Purchase
of Goods issued by the Ministry of Finance (Manual), (iv) similar
Manual governing Procedures for Purchase of goods/services
issued by individual ministries/departments like Defence, (v)
Government orders regarding price or purchase preference or other
facilities to sellers in the Handloom Sector, Cottage and Small Scale
Industries and to Central Public Sector Undertakings, etc. and (v)
the guidelines issued by the Central Vigilance Commission to
increase transparency and objectivity in public procurement. These
provide the regulatory framework for public procurement by
governmental instrumentalities.
In addition there exist certain sectoral laws and their underlying
sectoral policies like the Telecom Regulatory Authority Act, 1997,
the Electricity Act, 2003, the Petroleum & Natural Gas Board Act,
2006, et al which also guide the public procurement processes.
Within this framework various Governmental instrumentalities and
agencies including ministries and departments (like the Public
Works Department, the National Highways Authority of India, et al)
have evolved their own public procurement system – each of which
cannot be covered here. Further, vide notification dated November
2, 2010 issued by the Department of Expenditure, Ministry of
Finance, the Central Government has made the GFR Rules
applicable to ‘autonomous bodies’ as well, except in those cases
where the bye laws of an autonomous body provides for separate
financial rules which have been approved by the Government.
1.2 How does the regime relate to supra-national regimes
including the GPA and/or EC rules?
The General Financial Rules 1963 were amended with effect from
July 1, 2005 to reflect the provisions of supra-national regimes like
the GPA and the EC Rules which have been amended from time to
time. The preface to the General Financial Rules, 2005 provide that
the review of the General Financial Rule was done to incorporate
the developments that had taken place including a rapid growth of
alternative service delivery systems, developments in information
technology, outsourcing of services and liberalisation of the system
of procurement, accounting and disposal of goods in line with the
international practices.
1.3 What are the basic underlying principles of the regime
(e.g. value for money, equal treatment, transparency) and
are these principles relevant to the interpretation of thelegislation?
Rule 137 of the General Financial Rules, 2005 lays down the basic
underlying principles of the regime and provides that every
authority delegated with the financial powers of procuring goods in
public interest shall have the responsibility and accountability to
bring efficiency, economy and transparency in matters relating to
public procurement and for fair and equitable treatment of suppliers
and promotion of competition in public procurement. Specifically,
Rule 137 of the General Financial Rules, 2005 provides that the
procedure to be followed in making public procurement must
conform to the following yardsticks:
(i) the specifications in terms of quality, type etc., as also quantityof goods to be procured, should be clearly spelt out keeping in
view the specific needs of the procuring organisations. The
specifications so worked out should meet the basic needs of the
organisation without including superfluous and non-essential
features, which may result in unwarranted expenditure. Care
should also be taken to avoid purchasing quantities in excess of
requirement to avoid inventory carrying costs;
(ii) offers should be invited following a fair, transparent and
reasonable procedure;
(iii) the procuring authority should be satisfied that the selected
offer adequately meets the requirement in all respects;
(iv) the procuring authority should satisfy itself that the price of
the selected offer is reasonable and consistent with the
quality required; and(v) at each stage of procurement the concerned procuring
authority must place on record, in precise terms, the
considerations which weighed with it while taking the
procurement decision.
Vishnu Sudarsan
Amit Kapur
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 3/12
J. Sagar Associates India
Rule 160 of the General Financial Rules, 2005 lays down that all
government purchases should be made in a transparent, competitive
and fair manner; to secure best value for money. This will also
enable the prospective bidders to formulate and send their
competitive bids with confidence/Some of the measures for
ensuring the above are as follows:
(i) the text of the bidding document should be self-contained
and comprehensive without any ambiguities. All essential
information, which a bidder needs for sending responsive
bid, should be clearly spelt out in the bidding document in
simple language. The bidding document should contain, inter
alia:
(a) the criteria for eligibility and qualifications to be met
by the bidders such as minimum level of experience,
past performance, technical capability, manufacturing
facilities and financial position etc.;
(b) eligibility criteria for goods indicating any legal
restrictions or conditions about the origin of goods etc
which may require to be met by the successful bidder;
(c) the procedure as well as date, time and place for
sending the bids;
(d) date, time and place of opening of the bid;
(e) terms of delivery; and
(f) special terms affecting performance; if any.
(ii) suitable provision should be kept in the bidding document to
enable a bidder to question the bidding conditions, bidding
process and/ or rejection of its bid.
(iii) suitable provision for settlement of disputes, if any,
emanating from the resultant contract, should be kept in the
bidding document.
(iv) the bidding document should indicate clearly that the
resultant contract will be interpreted under Indian Laws.
(v) the bidders should be given reasonable time to send their bids.
(vi) the bids should be opened in public and authorised
representatives of the bidders should be permitted to attend
the bid opening.
(vii) the specifications of the required goods should be clearly
stated without any ambiguity so that the prospective bidders
can send meaningful bids. In order to attract sufficient
number of bidders, the specification should be broad based to
the extent feasible. Efforts should also be made to use
standard specifications which are widely known to the
industry.
(viii) Pre-bid conference: in case of turn-key contract(s) or
contract(s) of special nature for procurement of sophisticated
and costly equipment, a suitable provision is to be kept in the bidding documents for a pre-bid conference for clarifying
issues and clearing doubts, if any, about the specifications
and other allied technical details of the plant, equipment and
machinery projected in the bidding document. The date, time
and place of pre-bid conference should be indicated in the
bidding document. This date should be sufficiently ahead of
bid opening date.
(ix) criteria for determining responsiveness of bids, criteria as
well as factors to be taken into account for evaluating the
bids on a common platform and the -criteria for awarding the
contract to the responsive lowest bidder should be clearly
indicated in the bidding documents.
(x) bids received should be evaluated in terms of the conditions
already incorporated in the bidding documents; no new
condition which was not incorporated in the bidding
documents should be brought in for evaluation of the bids.
Determination of a bid’s responsiveness should be based on
the contents of the bid itself without recourse to extrinsic
evidence.
(xi) bidders should not be permitted to alter or modify their bids
after expiry of the deadline for receipt of bids.
(xii) negotiation with bidders after bid opening must be severely
discouraged. However, in exceptional circumstances where
price negotiation against an ad-hoc procurement is necessary
due to some unavoidable circumstances, the same may be
resorted to only with the lowest evaluated responsive bidder.(xiii) in the rate contract system, where a number of firms are
brought on rate contract for the same item, negotiation as
well as counter offering of rates are permitted with the
bidders in view and for this purpose special permission has
been given to the Directorate General of Supplies and
Disposals (DGS&D).
(xiv) contract should ordinarily be awarded to the lowest evaluated
bidder whose bid has been found to be responsive and who is
eligible and qualified to perform the contract satisfactorily as
per the terms and conditions incorporated in the
corresponding bidding document. However, where the
lowest acceptable bidder against ad-hoc requirement is not in
a position to supply the full quantity required, the remaining
quantity, as far as possible, be ordered from the next higher responsive bidder at the rates offered by the lowest
responsive bidder.
(xv) the name of the successful bidder awarded the contract
should be mentioned in the Ministries or Departments notice
board or bulletin or website
The following principles governing public procurement have been
laid down by the Hon’ble Supreme:
(a) The Government must have freedom of contract. Some fair
play in the joints is a necessary concomitant for an
administrative body functioning in an administrative sphere.
(b) All contracts by the Government or by an instrumentality of
the State should be granted only by public auction or by
inviting tenders, after advertising the same in well-known
newspapers having wide circulation, so that all eligible persons will have an opportunity to bid in the auction, and
there is total transparency. All official acts must be actuated
by the public interest, and should inspire public confidence.
Usually, the State or its instrumentalities should not give
contracts by private negotiation but by open public
auction/tender after wide publicity.
(c) Having regard to the nature of the trade or largesse or for
some other good reason, a contract may have to be granted
by private negotiation, but normally that should not be done
as it shakes the public confidence. However, in rare and
exceptional cases, for instance: during natural calamities and
emergencies declared by the Government; where the
procurement is possible from a single source only; where the
supplier or contractor has exclusive rights in respect of thegoods or services and no reasonable alternative or substitute
exists; where the auction was held on several dates but there
were no bidders or the bids offered were too low, etc., this
normal rule may be departed from and such contracts may be
awarded through “private negotiations”.
(d) It is now a well-settled principle of law that having regard to
the provisions of Article 14 of the Constitution, (which
enshrines equality before law and equal protection by law)
the State cannot distribute its largesse at its own sweet will.
The court can ensure that the statutory functions are not
carried out at the whims and caprices of the officers of the
Government/local body in an arbitrary manner. But the court
cannot itself take over these functions.
(e) Swiss challenge as a procurement method has been approved
subject to safeguards.
Inda
WWW.ICLG.CO.UK© Published and reproduced with kind permission by Global Legal Group Ltd, London
ICLG TO: PUBLIC PROCUREMENT 2011
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 4/12
J. Sagar Associates India
1.4 Are there special rules in relation to military equipment or
any other area?
The Defence Procurement Procedures, 2008 and the Defence
Procurement Manual, 2009 currently govern all procurements by the
Ministry of Defence. It envisages the following modes:
(1) Placing demands on diverse public sources including (a) the
Director General of Ordnance Factories for the manufacture
of stores in Ordnance Factories; (b) other Ministries of the
Government of India; or (c) State Governments, for supply
from factories/workshops/other procurement agencies under
them; (d) placing demands on the Industries/Factories/
Statutory Corporations -whether wholly or partly financed by
the State- set-up for the manufacture of a specific range of
items in the country; (e) placing demands on the indigenous
trade either directly or through the Director General of
Supplies and Disposals including the Textile Commissioner,
Mumbai; (f) placing demands on Defence Public Sector
Undertakings and other Government Public Sector
Undertakings for the purchase/repair/manufacture/fabrication
of items/equipment/systems/aircrafts etc. to meet Defence
Services requirements.
(2) Local purchase in respect of items which are not supplied by
the central procurement authority/organisations of the
Services/Departments and stores required in an emergency.
(3) Capital procurement of all goods and services that fit the
description of capital expenditure.
(4) Revenue procurement i.e. procurement of items and
equipments, including replacement equipment assemblies/sub-
assemblies and components to maintain and operate already
sanctioned assets in the service, the necessity of which has been
established and accepted by the Government.
(5) Indigenous procurement i.e. procurement from indigenous
sources.
(6) Foreign procurement i.e. procurement of such defenceequipment and assets, which are of foreign origin (and
includes), items required to maintain and operate such
equipments. Such equipment is procured from suppliers
abroad.
(7) Central procurement i.e. procurement undertaken against
indents resulting from a planned provisioning process like the
Annual Provision Review, refit planning, obsolescence
planning and planned routines.
(8) Local Procurement i.e. local purchase undertaken by various
authorities to meet the short term ad-hoc or urgent
requirements; or to meet the normal requirements of units for
stores which are not within the purview for central purchase
organisation.
(9) Procurement from Ordinance Factories and Defence PublicSector Undertakings.
(10) Cash and carry purchase is resorted to in case of extreme
urgency or when the supplier is not willing to supply the
required item on credit.
2 Application of the Law to Entities and
Contracts
2.1 Which public entities are covered by the law (as
purchasers)?
As per Rule 135 of the General Financial Rules, all Ministries or Departments, which are involved in procurement of goods for use, in
the public service, are covered under the category of ‘purchasers’.
Further, they apply to all autonomous bodies that created or owned by
or often received grants from the Government of India.
2.2 Which private entities are covered by the law (as
purchasers)?
Any private entity that is participating in the competitive bidding or
public procurement process to supply goods or services, or for that
matter being awarded a project or contract will get covered by the
law in as much that the bidding, qualification and award/rejection is
subject to judicial review on the well established common law
principles of reasonableness (including principles like legitimate
expectation, pacta sunt servanda, Wednesbury’s reasonableness
and proportionality – as have been incorporated into Indian law by
the courts). Any private entity claiming a wrongful denial has a
right to seek redress through the courts of law.
2.3 Which types of contracts are covered?
The regulatory framework for the public procurement system is
applicable to all Ministries or Departments of the Government
regarding procurement of goods and services required for use in the
public service.
2.4 Are there threshold values for determining individual
contract coverage?
The GFR are applicable to all instances of procurement of goods
required for use in the public service regardless of the value of the
goods.
2.5 Are there aggregation and/or anti-avoidance rules?
The Indian Income Tax Act, 1961 contain rules for avoidance on tax
on transfer of goods and services between associated and connected
enterprises. These rules are all encompassing in nature and would
also apply to contracts for public procurement. Further, certain
Governmental instrumentalities and agencies including ministries
and departments (like the Ministry of Defence, the Public Works
Department, the National Highways Authority of India, et al ) have
evolved their own public procurement system – wherein such rules
are found.
2.6 Are there special rules for concession contracts and, if so,
how are such contracts defined?
As stated above, various Governmental instrumentalities and
agencies including ministries and departments, and also some
States, have evolved their own public procurement system – each of
which cannot be covered here.
On May 16, 2007, the Government of India, Ministry of Finance
issued guidelines for pre-qualification of bidders for PPP Projects.
The guidelines provide for a two-stage bidding process and are
applicable to all ministries and departments of Central Government
and to all Central Public Sector Undertakings.
Under the Chairmanship of the Prime Minister of India, the Cabinet
Committee on Infrastructure (CCI) was constituted on July 6, 2009.
The CCI’s role is to approve and review policies and projects across
infrastructure sectors. The committee will fast track the
implementation of the infrastructure sector projects and monitor
performance keeping in mind the mandate of the government.
Some states like Andhra Pradesh, Gujarat and Punjab have enacted the
A.P. Infrastructure Development Act, 2005, the Gujarat Infrastructure
Development Act, 1999 and Punjab Infrastructure (Development &
Regulation) Act, 2002 respectively. The specific legislation existing
105
Inda
ICLG TO: PUBLIC PROCUREMENT 2011© Published and reproduced with kind permission by Global Legal Group Ltd, London
WWW.ICLG.CO.UK
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 5/12
J. Sagar Associates India
in Andhra Pradesh and Gujarat is stated hereunder, explaining the
types of concession agreements covered under these legislations:
Build-and-Transfer (BT)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby the developer undertakes thefinancing and construction of a given infrastructure or development
facility and after its completion hands it over to the Government,
Government Agency or the Local Authority. The Government,
Government Agency or the Local Authority would reimburse the
total project investment, on the basis of an agreed schedule. This
arrangement may be employed in the construction of any
infrastructure or development projects, including critical facilities,
which for security or strategic reasons, must be operated directly by
the Government or Government Agency or the Local Authority.
Gujarat Infrastructure Development Act, 1999
An agreement whereby a developer undertakes to finance and
construct a project. After the completion of the project, the developer
is required to transfer the project to the State Government, aGovernment agency or, as the case may be, a specified Government
agency. The developer shall be paid such amount as is fixed in
amortisation schedule specified in the agreement.
Build-Lease-and-Transfer (BLT)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby a Developer undertakes to
finance and construct an Infrastructure Project and upon its
completion hands it over to the Government or Government Agency
or the Local Authority concerned on a lease arrangement for a fixed
period, after which ownership of the facility is automatically
transferred to the Government or Government Agency or the Local
Authority concerned.
Gujarat Infrastructure Development Act, 1999
Build Lease and Transfer Agreement - An agreement whereby a
developer undertakes to finance and construct a project. On
completion of the project, the developer hands it over to the State
Government, a Government Agency or, as the case may be, a specified
Government Agency for operation under a lease agreement for a
period specified in the agreement after the expiry of which the project
stands transferred to the State Government, the Government Agency
or, as the case may be, the specified Government Agency.
Build-Operate-and-Transfer (BOT)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001A contractual arrangement whereby the developer undertakes the
construction, including financing, of a given infrastructure facility,
and the operation and maintenance thereof. The developer operates
the facility over a fixed-term during which he is allowed to charge
facility users appropriate tolls, fees, rentals and charges not
exceeding those proposed in the bid or as negotiated and
incorporated in the Contract to enable the recovery of investment in
the project. The developer transfers the facility to the Government
or Government Agency or the Local Authority concerned at the end
of the fixed term that shall be specified in the Concession
Agreement. This shall include a supply-and-operate situation
which is a Contractual arrangement whereby the supplier of
equipment and machinery for a given infrastructure facility, if the
interest of the Government Agency or the Local Authority so
requires, operates the facility providing in the Government Agency
or the Local Authority so requires, operates the facility providing in
the process technology transfer and training to Government,
Government Agency or the Local Authority nominated individuals.
Build-Own-and-Operate (BOO)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby a developer is authorised to
finance, construct, own, operate and maintain an Infrastructure or Development facility from which the developer is allowed to
recover this total investment by collecting user levies from facility
users. Under his project, the developer owns the assets of the
facility and may choose to assign its operation and maintenance to
a facility operator. The transfer of the facility to the Government,
Government Agency or the Local Authority is not envisaged in this
structure; however, the Government, Government Agency or Local
Authority may terminate its obligations after specified time period.
Build-Own-Operate-Transfer (BOOT)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby a Developer is authorised to
finance, construct, maintain and operate a project and whereby such
project is to vest in the developer for a specified period. During the
operation period, the developer will be permitted to charge user
levies specified in the Concession Agreement, to recover the
investment made in the Project. The developer is liable to transfer
the Project to the Government, Government Agency or the Local
Authority after the expiry of the specified period of operation.
Gujarat Infrastructure Development Act, 1999
An agreement whereby the developer undertakes to finance,
construct, maintain and operate a project and whereby such project
is to vest in the developer for a specified period. During the period
of operation of the project by the developer, he may be permitted to
charge user charges as specified in an agreement. The developer is
required to transfer the project to the State Government, a
Government Agency or, as the case may be, a specified Government
Agency after the expiry of the period of operation.
Build-Transfer-and-Operate (BTO)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby the Government or
Government Agency or the Local Authority contracts out an
infrastructure facility to a developer to construct the facility on a
turn-key basis, assuming cost overruns, delays and specified
performance risks. Once the facility is commissioned satisfactorily,
the developer is given the right to operate the facility and collect
user levies under a Concession Agreement. The title of the facilities
always vests with the Government, Government Agency or the
Local Authority in this arrangement.
Gujarat Infrastructure Development Act, 1999
An agreement whereby the developer undertakes to finance and
construct the project. On completion of the project, the developer
transfers the project to the State Government, a Government
Agency or, as the case may be, a specified Government Agency
which permits the developer to operate the project on its behalf for
a period specified in the agreement.
Build Own Operate and Maintain Agreement
Gujarat Infrastructure Development Act, 1999
An agreement whereby a developer undertakes to finance,
construct, operate and maintain a project and whereby such project
is to vest in the developer for specified period. During the period
of operation of the project, he may be permitted to charge user
charges as specified in the agreement.
Inda
WWW.ICLG.CO.UK© Published and reproduced with kind permission by Global Legal Group Ltd, London
ICLG TO: PUBLIC PROCUREMENT 2011
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 6/12
J. Sagar Associates India
Contract-Add-and-Operate (CAO)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby the developer adds to an
existing infrastructure facility which it rents from the Government,
Government Agency or the Local Authority and operates theexpanded project and collects user levies, to recover the investment
over an agreed franchise period. There may or may not be a transfer
arrangement with regard to the added facility provided by the
developer.
Develop-Operate-and-Transfer (DOT)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby favourable conditions external to
a new Infrastructure Project which is to be built by a developer are
integrated into the BOT arrangement by giving that entity the right to
develop adjoining property and thus, enjoy some of the benefits the
investment creates such as higher property or rent values.
Rehabilitate-Operate-and-Transfer (ROT)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby and existing facility is handed
over to the private sector to refurbish, operate (collect user levies in
the operation period to recover the Investment) and maintain for a
franchise period, at the expiry of which the facility is turned over to
the Government or Government Agency or the Local Authority.
The term is also used to describe the purchase of an existing facility
from abroad, importing, refurbishing, erecting and consuming it
within the host country.
Gujarat Infrastructure Development Act, 1999
An agreement whereby an existing project is vested in a person torenovate, operate and maintain for the period specified in the
agreement after the expiry of which the project is required to be
transferred to the State Government, a Government Agency or, as
the case may be, the specified Government agency. During the
period of operation of the project by the developer, he may be
permitted to charge user charges as specified in the agreement.
Rehabilitate-Own-and-Operate (ROO)
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
A contractual arrangement whereby an existing facility is handed
over to the Operator to refurbish and operate with no time limitation
imposed on ownership. As long as the operator is not in violation
of its franchise, it can continue to operate the facility and collectuser levies in perpetuity.
Rehabilitate-Own-Operate-Maintain
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
Not applicable.
Gujarat Infrastructure Development Act, 1999
An agreement whereby an existing project is vested in a person to
renovate, operate and maintain. The developer shall be permitted to
charge user charges as specified in the agreement.
Lease Management Agreement
Gujarat Infrastructure Development Act, 1999
An agreement whereby the State Government, a Government
agency or a specified Government agency leases a project owned by
the State Government, the Government Agency or, as the case may
be, a specified Government Agency to the person who is permitted
to operate and maintain the project for the period specified in the
agreement and to charge user charges therefore.
Management Agreement
Gujarat Infrastructure Development Act, 1999
An agreement whereby the State Government, a Government
Agency or a specified Government Agency entrusts the operation
and management of a project to a person of the period specified inthe agreement on the payment of specified consideration. In such
agreement, the State Government, the Government Agency or the
specified Government Agency, may charge the user charges and
collect the same either itself or entrust the collection for
consideration to any person who shall after collecting the user
charges pay the same to the State Government, a Government
Agency or as the case may be, a specified Government Agency.
Service Contract Agreement
Gujarat Infrastructure Development Act, 1999
An agreement whereby a person undertakes to provide services to the
State Government, a Government Agency, or a specified Government
Agency for a specified period. The State Government, a Government
Agency or, as the case may be, a specified Government Agency shall
pay him an amount according to the agreed schedule.
Supply Operate and Transfer Agreement
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
Not applicable.
Gujarat Infrastructure Development Act, 1999
An agreement whereby a person supplies to the State Government,
a Government Agency or a specified Government Agency the
equipments and machinery for a project and undertakes to operate
the project for a period and consideration specified in the
agreement. During the operation of the project, he shall undertake
to train employees of the State Government, the GovernmentAgency or, as the case may be, the specified Government Agency
to operate the project.
Joint Venture Agreement
Andhra Pradesh Infrastructure and Development Enabling
Act, 2001
Not applicable.
Gujarat Infrastructure Development Act, 1999
An agreement whereby the State Government, a Government
agency or a specified Government agency enters into an agreement
with a developer to jointly finance, construct, operate and maintain
a project for a period specified in the agreement after the expiry of
which the project is required to be transferred to the StateGovernment, the Government Agency or, as the case may be, the
specified Government Agency.
Further, states like Karnataka and Uttarakhand have enacted the
Transparency in Public Procurements Act, 1999 and Uttarakhand
Procurement Rules, 2008 respectively, with an aim to streamline the
procedure in inviting, processing, and acceptance of tenders by
procurement entities, and for matters related thereto.
Also, it is pertinent to note that courts in India have time and again
held that public-private partnership is a key element to develop
infrastructure in the economy [In re: Delhi Electricity Regulatory
Commission vs. BSES Yamuna Power Limited, (2007 (3)
Supreme Court Cases 33)]. Further, in order to ensure this
infrastructural growth in the country, judiciary in India hasintervened as and when required, and followed policy of ‘checks and
balances’, so as to ensure that interest of the public at large is
restored at all points of time [State of Karnataka vs. All India
Manufacturers Organisation (2006) 4 SCC 683]. Adding to this,
107
Inda
ICLG TO: PUBLIC PROCUREMENT 2011© Published and reproduced with kind permission by Global Legal Group Ltd, London
WWW.ICLG.CO.UK
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 7/12
J. Sagar Associates India
in a recent case, a division bench of the Delhi High Court declined
to interfere with the policy decision of Government in public
procurement through competitive bidding to resort to short listing of
the top 5 qualified bidders thereby restricting price bids to the top 5,
upholding Government’s decision to do so, since, bidding for
infrastructure projects is a costly and intensive process thereby
getting only serious bidders. In doing so the Delhi High Court relied
upon judicial precedents on policy decisions and its flexibility, while
repelling allegations of anti-competitive and exclusionary behaviour
[Judgment dated 03.11.2008 passed by a Division Bench of the
Hon’ble High of Delhi in W.P. (C) No. 566 of 2008 titled National
Highway Builders Federation v/s NHAI & Ors.]
3 Procedures
3.1 What procedures can be followed, how do they operate
and is there a free choice amongst them?
General Financial Rule 204 inter-alia provides for the norms and principles governing contracts entered into by Government. Some
of the key principles to be observed while entering into contracts, is
as follows:
(i) The terms of contract must be precise, definite and without any
ambiguities. The terms should not involve an uncertain or
indefinite liability, except in the case of a cost plus contract or
where there is a price variation clause in the contract.
(ii) Standard forms of contracts should be adopted wherever
possible, with such modifications as considered necessary in
respect of individual contracts. The modifications should be
carried out only after obtaining financial and legal advice.
(iii) (a) A Ministry or Department may, at its discretion, make
purchases of value up to Rupees one lakh by issuing
purchase orders containing basic terms and conditions.
(b) In respect of Works Contracts, or Contracts for purchases
valued between Rupees one lakh to Rupees ten lakhs, where
General Conditions of Contract (GCC), Special Conditions
of Contract (SCC) and scope of work, the letter of
acceptance will result in a binding contract.
(c) In respect of contracts for works with estimated value of
Rupees ten lakhs or above or for purchase above Rupees ten
lakhs, a Contract document should be executed, with all
necessary clauses to make it a self-contained contract. If
however, these are preceded by Invitation to Tender,
accompanied by GCC and SCC, with full details of scope and
specifications, a simple one page contract can be entered into
by attaching copies of the GCC and SCC, and details of scope
and specifications, Offer of the Tenderer and Letter of Acceptance.
(d) Contract document should be invariably executed in
cases of turnkey works or agreements for maintenance of
equipment, provision of services etc.
(iv) Cost plus contracts should ordinarily be avoided. Where
such contracts become unavoidable, full justification should
be recorded before entering into the contract.
(v) Price Variation Clauses can be provided only in long-term
contracts, where the delivery period extends beyond 18
months. In short-term contracts firm and fixed prices should
be provided for. Where a price variation clause is provided,
the price agreed upon should specify the base level viz., the
month and year to which the price is linked, to enable
variations being calculated with reference to the price levels prevailing in that month and year.
(vi) Contracts should include provision for payment of all
applicable taxes by the contractor or supplier.
(vii) “Lumpsum” contracts should not be entered into except in
cases of absolute necessity. Where lumpsum contracts
become unavoidable, full justification should be recorded.
The contracting authority should ensure that conditions in the
lumpsum contract adequately safeguard and protect the
interests of the Government.
(viii) The terms of a contract, including the scope and specification
once entered into, should not be materially varied.(ix) Normally no extensions of the scheduled delivery or
completion dates should be granted except where events
constituting force majeure, as provided in the contract, have
occurred or the terms and conditions include such a provision
for other reasons. Extensions as provided in the contract
may be allowed through formal amendments to the contract
duly signed by parties to the contract.
(x) All contracts shall contain a provision for recovery of
liquidated damages for defaults on the part of the contractor.
(xi) A warranty clause should be incorporated in every contract,
requiring the supplier to, without charge, repair or rectify
defective goods or to replace such goods with similar goods
free from defect. Any goods repaired or replaced by the
supplier shall be delivered at the buyers premises withoutcosts to the buyer.
(xii) All contracts for supply of goods should reserve the right of
Government to reject goods which do not conform to the
specifications.
Certain sectoral and state laws and policies have also nuanced these
rules and procedures.
3.2 What are the rules on specifications?
Some of the aspects to be duly considered by governmental
instrumentalities whilst formulating the specifications and other
technical particulars of the goods to be purchased are as follows:
(i) The specifications of the goods shall meet only the actual and
essential needs of the user because “over-specification” will
unnecessarily increase the cost and may stifle competition.
(ii) Specifications should aim at procuring the latest technology
and avoid procurement of obsolete goods.
(iii) Specifications should have emphasis on factors like
efficiency, optimum fuel/power consumption, use of
environmental-friendly materials, reduced noise and
emission levels, low maintenance cost etc.
(iv) The specifications should not be too restrictive as the aim
should be to attract reasonable number of competitive
tenders. The specifications should also take care of the
mandatory and statutory regulations, if any, applicable for
the goods to be purchased.
(v) Wherever Indian Standards exists for the required goods, the
same should be adopted. Preference should be given to
procure the goods, which carry BIS (Bureau of Indian
Standards) mark. For any deviations from Indian Standards
or for any additional parameters for better performance,
specific reasons for deviations/modifications should be duly
recorded with the approval of the competent authority.
(vi) In cases where Indian Standards do not exist or, alternatively,
a decision has been taken to source the foreign markets also,
International Standards (like ISO etc.) may be adopted.
Where no widely known standards exist, the specifications
shall be drawn in a generalised and broad-based manner to
obtain competitive bids from different sources.
(vii) Except in case of proprietary purchase from a selected single
source, the specifications must not contain any brand name,make or catalogue number of a particular manufacturer and
if the same is unavoidable due to some compelling reasons,
it should be followed by the words “or equivalent”.
Inda
WWW.ICLG.CO.UK© Published and reproduced with kind permission by Global Legal Group Ltd, London
ICLG TO: PUBLIC PROCUREMENT 2011
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 8/12
J. Sagar Associates India
3.3 What are the rules on excluding tenderers?
There is no general rule on exclusion of tenderers. However, it has
been seen in cases that from time to time due to sectoral policy
considerations (like cross-holding restrictions between print media
and broadcasting) as also issues of national/public interest (for
defence and strategic procurements) specific qualifications rules for
specific transactions may have exclusionary impact.
It is instructive to note that governmental instrumentalities may
exclude/blacklist a tenderer if a tenderer engages in illegal or
corrupt practices or if a particular tenderer has failed to perform its
obligations under a certain governmental contract. The Hon’ble
Apex Court in the matter of Raghunath Thankur vs. State of Bihar
& Ors (1989) 1 SCC 229, inter-alia observed that blacklisting any
person in respect of business ventures has civil consequence for the
future business of the person concerned. Therefore it is an
elementary principle of natural justice that parties affected by any
order of blacklisting should have right of being heard and making
representations against such order.
3.4 What are the rules on short-listing tenderers?
Each Ministry/department of the Government that engages in public
procurement formulates its own guidelines for determining eligibility
of suppliers who are qualified in all respects to deliver the goods and
services. These guidelines are formulated taking into account the
credentials, manufacturing capabilities, quality control systems, past
performance, facility for after-sales services, financial background and
other parameters contained in General Financial Rules, 2005.
3.5 What are the rules on awarding the contract?
The tender is usually awarded to the lowest evaluated tender. All
aspects, which are to be taken into account for evaluating the tenders
including the method to be adopted for evaluation of tenders and the
techniques for determining the lowest evaluated responsive tender for
placement of contract are to be incorporated in the tender enquiry
document in clear and comprehensive manner without any ambiguity
and/or confusing stipulations. In addition to the above, all the tenders
are to be evaluated strictly on the basis of the terms & conditions
incorporated in the tender enquiry document (based on which offers
have been received) and the terms, conditions etc. stipulated by the
tenderers in their tenders. No new condition should be brought in
while evaluating the tenders. Similarly, no tender enquiry condition
(specially the significant/essential ones) should be over looked while
evaluating the tenders. After completing the entire evaluation processfor the responsive tenders on equitable basis, the bids are to be entered
into a ranking statement in ascending order of the evaluated prices
(like L1, L2, L3…etc.) along with other relevant details, so that a clear
picture of their standing as well as comparative financial impact is
available at a glance. Before placing the contract on the lowest
evaluated responsive tender (L1), the purchase organisation is to
ensure that the price to be paid is reasonable. The broad guidelines for
judging the reasonableness of price are as under:
(i) last purchase price of same (or, in its absence, similar) goods;
(ii) current market price of same (or, in its absence, similar) goods;
(iii) price of raw materials, which go into the production of the
goods;
(iv) receipt of competitive offers from different sources;
(v) quantity involved;
(vi) terms of delivery;
(vii) period of delivery; and
(viii) cost analysis (material cost, production cost, over-heads,
profit margin).
3.6 What methods are available for joint procurements?
In the case of projects jointly executed by several Governments,where the expenditure is to be shared by the participating
Governments in agreed proportions, and the expenditure is ab-initio
incurred by one Government and shares of other participating
Governments recovered subsequently; such recoveries from other
Governments shall be exhibited as abatement of charges under the
relevant expenditure Head of Account in the books of the
Governments incurring the expenditure initially.
3.7 What are the rules on alternative bids?
The General Financial Rules, 2005 are silent on this issue.
4 Exclusions and Exemptions (including in-house arrangements)
4.1 What are the principal exclusions/exemptions and who
determines their application?
The principle exclusion from the ambit of these guidelines is the
procurement for the defence sector for which separate guidelines
have been prescribed. Some infrastructure sectors have their
specific laws and policies that govern public procurement
(including entry, exit and performance regulation). Similarly,
provisions regulating advances to government servants have been
excluded from General Financial Rules as these are distinct from
direct government expenditure.
4.2 How does the law apply to “in-house” arrangements,
including contracts awarded within a single entity, within
groups and between public bodies?
There is no specific regulation that applies to in-house
arrangements. Contracts entered into between groups must be
executed on an arm’s length basis and should not lead to any anti-
avoidance situations. Also transfer pricing rules come into play.
5 Remedies and Enforcement
5.1 Does the legislation provide for remedies/enforcement
and if so what is the general outline of this, including as to
locus standi?
Normally, the conditions governing the contract contain suitable
provision for settlement of such disputes/differences binding on
both the parties. If a dispute/difference arises, both the purchaser
and the supplier shall first try to resolve the same amicably by
mutual consultation. If the parties fail to resolve the dispute by such
mutual consultation within twenty-one days, then, either the
purchaser or the supplier may give notice to the other party of its
intention to commence arbitration.
If the contract is with domestic supplier, the applicable arbitration procedure will be as per Indian Arbitration and Conciliation Act,
1996 and if the contract is with foreign supplier, the supplier has the
option to chose either Indian Arbitration and Conciliation Act, 1996
or Arbitration in accordance with the provision of UNCITRAL
109
Inda
ICLG TO: PUBLIC PROCUREMENT 2011© Published and reproduced with kind permission by Global Legal Group Ltd, London
WWW.ICLG.CO.UK
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 9/12
J. Sagar Associates India
(United Nations Commission on International Trade Law)
Arbitration Rules. The venue of arbitration shall generally be the
place from where the contract has been issued except when foreign
supplier opts for arbitration, in accordance with the provision of
UNCITRAL, Arbitration Rules, the venue can be a neutral country.
The governing law of the contract will be the laws of India.
5.2 Can remedies/enforcement be sought in other types of
proceedings or applications outside the legislation?
Remedies/enforcement of public procurement contracts can also be
sought under the provisions contained in the Indian Contract Act,
1872, the Specific Relief Act, 1963 and the Sale of Goods Act, 1930.
In addition to the above, a tendering process can be subject to judicial
review before a High Court in India inter-alia on the ground of
arbitrariness, fairness in action, mala fide or violation of a
fundamental or legal right as enshrined in the Constitution of India.
5.3 Before which body or bodies can remedies/enforcement
be sought?
The conditions governing the contract shall contain suitable
provision for settlement of such disputes/differences binding on
both the parties. If a dispute/difference arises, both the purchaser
and the supplier shall first try to resolve the same amicably by
mutual consultation. If the parties fail to resolve the dispute by such
mutual consultation within twenty-one days, then, either the
purchaser or the supplier may give notice to the other party of its
intention to commence arbitration.
In addition, for violation of the reasonableness-doctrine state action
is amenable to judicial review by the competent High Court in
exercise of the constitutional writ jurisdiction.
5.4 What are the legal and practical timing issues raised if a
party wishes to make an application for
remedies/enforcement?
For arbitration and ADR process the contracts read with the
governing procedural law/rules would normally stipulate the time
lines and the process.
For invoking the court jurisdiction through a civil suit, the
Limitation Act, 1963 prescribes the limitation period for filing an
application in the appropriate judicial forum for the redressal of the
grievance. In most civil cases, the prescribed limitation period is
three years from the date of occurrence of cause of action.
For invoking the writ jurisdiction though no specific time limits are
prescribed, the courts have evolved the doctrine of laches where
expedition in seeking relief is warranted and those guilty of
inexplicable or unreasonable delays find themselves non-suited.
5.5 What remedies are available after contract signature?
In case a contract has been signed, the following remedies are
available against the defaulting party:
(i) Damages for breach of the contract;
(ii) Specific performance of the contract; and
(iii) Injunctions.
5.6 What is the likely timescale if an application for
remedies/enforcement is made?
Judicial proceedings in India may take a few months to several years
for it to finally conclude. The duration depends on the complexity of
the action, the forum and other relevant parameters. What is
noteworthy is the development of statutorily mandates expert
regulatory institutions with time bound decision making processes
like the Electricity Regulatory Commissions and the Telecom
Regulatory Authority of India with an expert appellate tribunal
(expert with judicial officers and technical/sectoral experts as
members). These mechanisms have been significant in getting quick,
expert decisions - cutting down the time and costs of adjudication
since their decision is appealable to the Supreme Court and all other
courts normally do not interfere with their decision making.
5.7 Is there a culture of enforcement either by public or
private bodies?
Yes. There is a culture of enforcement. Both public and private
bodies take recourse to the legal rights and remedies as provided by
law to enforce their rights.
5.8 What are the leading examples of cases in which
remedies/enforcement measures have been obtained?
The Supreme Court’s decision in the matter of Ramana Dayaram
Shetty v/s International Authority of India (1979) 3 SCC 489 is a
landmark on the issue of administrative action, which is applicable to
public procurement also. In the abovementioned matter, the Hon’ble
Apex Court observed as follows:
(i) Every action of the executive Government must be informed
with reason and should be free from arbitrariness. That is the
very essence of the rule of law and its bare minimal
requirement.
(ii) Government action must be based on standards that are not
arbitrary or unauthorised. The Government is still theGovernment when it acts in the matter of granting largesse
and it cannot act arbitrarily. It does not stand in the same
position as a private individual.
(iii) The State need not enter into any contract with anyone, but if
it does so, it must do so fairly without discrimination and
without unfair procedure.
(iv) It must, therefore, be taken to be the law that where the
Government is dealing with the public, whether by way of
giving jobs or entering into contracts or issuing quotas or
licences or granting other forms of largesse, the Government
cannot act arbitrarily at its sweet will and, like a private
individual, deal with any person it pleases, but its action must
be in conformity with standard or norm which is not arbitrary,
irrational or irrelevant, and if the Government departs fromsuch standard or norm in any particular case or cases, the action
of the Government would be liable to be struck down, unless it
can be shown by the Government that the departure was not
arbitrary, but was based on some valid principle which in itself
was not irrational, unreasonable or discriminatory.
The said precedent has since been followed repeatedly.
Further, an important facet of Indian jurisprudence has been the
judicious weighing of public interests with private interests in
interfering with public bidding and procurement processes, as also
in fashioning relief.
Inda
WWW.ICLG.CO.UK© Published and reproduced with kind permission by Global Legal Group Ltd, London
ICLG TO: PUBLIC PROCUREMENT 2011
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 10/12
J. Sagar Associates India
6 Changes During a Procedure and After a
Procedure
6.1 Does the legislation govern changes to contract
specifications, changes to the timetable, changes to
contract conditions (including extensions) or changes tocontract terms post-signature? If not, what are the
underlying principles governing these issues?
There exists no legislation specifically governing contract
specifications, changes to the timetable, changes to contract
conditions (including extensions) or changes to contract terms post-
signature – other than the Indian Contract Act, 1872 – i.e., the same
is left to the contract between the parties. In addition, the procurer
in public procurement contracts being an instrumentality of state is
expected to act in a fair and reasonable manner. Unless explicitly
reserved by contract, there cannot be any unilateral amendments to
executed contracts.
Any amendment to contract terms requested by the supplier mayhave, inter alia, financial impact and/or technical impact and/or legal
impact. Therefore, before agreeing to the request of the supplier, the
purchase organisation usually scrutinise the issue on its merits to
ensure that the requested amendment does not have any adverse
effect on the purchase organisation. Financial concurrence should be
obtained before issuing any amendment having financial
implications/repercussions. Further, there may be an occasion where
consultation with Law Ministry will be necessary before issuing the
proposed amendment. The Ministry/Department should process such
issues, as deemed fit, depending on the merit of the case.
6.2 In practice, how do purchasers and providers deal with
these issues?
Amendment to contract terms are dealt with transparently by the
suppliers and the concerned Governmental Instrumentality, and are
negotiated mutually within the applicable contractual framework.
7 Privatisations and PPPs
7.1 Are there special rules in relation to privatisations and
what are the principal issues that arise in relation to
them?
The stated objective of disinvestment is to put national resources
and assets to optimal use and in particular to unleash the productive potential inherent in the public sector enterprises. The policy of
disinvestment specifically aims at: (i) modernisation and
upgradation of Public Sector Enterprises with greater service
delivery focus; (ii) creation of new assets; (iii) generating of
employment; (iv) retiring of public debt; (v) freeing public finances
for developmental work – and minimising subsidy burden; and (vi)
engaging private enterprise for financing, establishing, managing
and operating public services/facilities. In this context, the
Government would like to ensure that disinvestment does not result
in asset stripping, erosion of quality of service, unregulated private
monopolies, usurious pricing, et al .
7.2 Are there special rules in relation to PPPs and what are
the principal issues that arise in relation to them?
On May 16, 2007, the Government of India, Ministry of Finance
issued guidelines for pre-qualification of bidders for PPP Projects.
The guidelines provide for a two-stage bidding process and are
applicable to all ministries and departments of Central Government
and to all Central Public Sector Undertakings.
8 Other Relevant Rules of Law
8.1 Are there any related bodies of law of relevance to
procurement by public and other bodies, such as freedom
of information or general contract law?
At the apex of the legal framework governing public procurement is
Article 299 of the constitution which stipulates that contracts legally
binding on the Government have to be executed in writing by officers
specifically authorised to do so. Further, the Indian Contract Act, 1872and the Sale of Goods Act, 1930 are major legislations governing
contracts of sale / purchase of goods in general.
Also, it is instructive to note that the Right to Information Act was
enacted in 2005 with an objective of setting out the practical regime
of right to information for citizens to secure access to information
under the control of public authorities, and in order to promote
transparency and accountability in the working of every public
authority, the constitution of a Central Information Commission and
State Information Commission.
9 The Future
9.1 Are there any proposals to change the law and if so what
is the timescale for these and what is their likely impact?
No. At present there is no bill pending in the parliament to bring
about any change in the existing law.
Acknowledgment
The authors would like to acknowledge the assistance of their
colleague Neha Gupta, an Associate at J. Sagar Associates, in the
preparation of this chapter.
111
Inda
ICLG TO: PUBLIC PROCUREMENT 2011© Published and reproduced with kind permission by Global Legal Group Ltd, London
WWW.ICLG.CO.UK
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 11/12
ICLG TO: PUBLIC PROCUREMENT 2011WW.ICLG.CO.UK© Published and reproduced with kind permission by Global Legal Group Ltd, London
Inda
J. Sagar Associates India
Amit Kapur
J. Sagar Associates84-E, C-6 Lane
Off Central Avenue Sainik Farms
New Delhi -110062India
Tel: +91 11 4311 0630
Fax: +91 11 4311 0617
Email: [email protected]
URL: www.jsalaw.com
Amit’s practice covers Energy (Power, Oil & Gas);Communications (Telecom & Broadcasting); Surface Transport
(MRTS & Highways); Municipal Infrastructure (Water, Sanitation,Waste Management); and Social / Developmental projects. Hehandles varied aspects of legal, regulatory and policy issues inthe sectors ranging from:
Ø Advising on the applicable constitutional, legal, policy andregulatory issues; drafting laws, delegated legislation,policies, regulatory instruments and reform / restructuring
strategies.
Ø Advising on Transactions including Mergers & Acquisitions, inbound & outbound investments,
commercial arrangements and financing.
Ø Evolving institutional frameworks, regulatory regimes and
policies to facilitate public-private partnerships.
Ø Evolving strategies and approaches for efficient operations
of regulated utilities including aspects of competition;licensing; economic regulation; performance regulation.
Ø Strategising, handling and arguing various complex
precedent - settling disputes including Commercial, JointVentures, Regulations & Competition issues before theSupreme Court of India, High Courts, Appellate Tribunals,Sector regulators (in Competition, Power & Telecom
sphere), Arbitral Tribunals and expert bodies.
Amit advises/represents diverse entities including Governments andgovernmental entities, Competition & Sector regulators; Indian
Corporate in their domestic and outbound businesses; Foreignentities investing in India; Developmental Financial Institutions.
Vishnu Sudarsan
J. Sagar AssociatesSandstone Crest, Opp. Hotel Park Plaza
Sushant Lok Phase I, Gurgaon -122009
India
Tel: +91 12 4439 0677 Fax: +91 12 4439 0617
Email: [email protected]
URL: www.jsalaw.com
Vishnu’s practice spans advising clients across different verticalsviz , Energy (Power), Communications (Telecommunications),
Transport (Surface Transport including Railways & Metrosystems), and Urban Infrastructure. In these verticals, he advisesclients on issues ranging from corporate transactions to PPPs.Vishnu advises/represents diverse entities includingGovernments and governmental entities, equity investors in their
domestic and outbound businesses; foreign entities investing inIndia; and Developmental Financial Institutions.
J. Sagar Associates (“JSA”) is a leading national law firm in India with over 190 lawyers and consultants including 40 partners
based in New Delhi, Gurgaon, Mumbai, Bangalore and Hyderabad. For almost two decades we have provided legal advice and
services to international and domestic clients. Our mission is to provide outstanding legal solutions in our chosen practice areaswith a strong emphasis on ethics. Our clients benefit from our expertise and experience as a large firm while still enjoying the
privilege of personal attention and responsiveness of a small firm. Our advice is delivered by well informed, accessible, partner-
led teams who strive to provide the highest quality of service to our clients, by listening, understanding their needs, responding
promptly and living up to the commitments that we make. We use plain English to communicate verbally and in our documentation.
JSA’s practice extends across diverse sectors of industry and services such as Consumer & Industrial Products, Consumer
Durables, Financial Services & Banking, and Energy & Transportation. We understand and appreciate the different challenges
that our clients face in the current business environment as a result of technological change, evolving government regulation and
competitive pressures in the marketplace. We provide a diverse set of legal services to our clients and assist them to meet these
challenges successfully. Our practice areas are Corporate Commercial; Banking & Finance; Capital Markets & Securities;
Regulatory & Policy; Indirect Tax; Dispute Resolution; and Employment. Our sectors include Energy (Power, Oil & Gas); Mining;
Hospitality & Leisure; Education; Asset Management & Financial Institutions; Transportation (Aviation, Railways & Metro, Surface
Transport and Ports); Real Estate; Knowledge Based Industries (IT / ITES / Life Sciences); Media, Entertainment & Sports;
Communications (Telecom & Broadcasting); Municipal & Developmental Infrastructure; Retail & Franchising; Construction &
Engineering; Insurance; and Defence & Internal Security. We have been awarded as the “Top Three Indian Law Firms” and asthe “Best Employer in Indian Law Firms” by the first annual Rainmaker Law Firm Survey 2008.
8/3/2019 4194- ContractLaw
http://slidepdf.com/reader/full/4194-contractlaw 12/12
To order a copy of a publication, please contact:Global Legal Group
59 Tanner StreetLondon SE1 3PLUnited Kingdom
Tel: +44 20 7367 0720Fax: +44 20 7407 5255
Email: [email protected]
Other titles in the ICLG series include:Business Crime
Cartels & Leniency
Class & Group Actions
Commodities and Trade Law
Competition LitigationCorporate Recovery & Insolvency
Corporate Governance
Corporate Tax
Dominance
Employment and Labour Law
Enforcement of Competition Law
Environment Law
Gas Regulation
International Arbitration
Litigation & Dispute Resolution
Mergers & Acquisitions
Merger ControlPFI / PPP Projects
Patents
Pharmaceutical Advertising
Product Liability
Real Estate
Securitisation
Telecommunication Laws and Regulations
Public Procurement 2011
The International Comparative Legal Guide to: