CONTRACTS – THE WORD AND THE MISSING!

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CONTRACTS – THE WORD AND THE MISSING!

The Indian contracts have their own story, more so when the government is one of the signatories. What is missing is there in the contract is as important as what is written in the contract. And what would be generally be missing would the spirit of the contract, which in simple language means whether the purpose of the project or the service is being met with. A contract is a conduit for delivery, a legal one, and totally sealed one, no escape route, and it is goes awry, the culprit has to pay the price.

The validation and the consequent payment and same validation during warranty period and the extended AMC period makes the project, work, activity, operations, upgrade or for that any legally enabled work to click. The fear of getting sued sends chill down the spine of the contracting parties in the western world. The casualness to legality emanates because of a casual approach to work. Casual approach to work had lots of backend moving parts which keep working with different agendas rather than the robust delivery of the project. By contract we mean documents starting from RFP/tender document, to all documents leading to completion and financial utilization.

It also deals with all handing over documents, calculation of payments, pre-commissioning documents and finally the service level agreements. It would include the methods of validating the service level clauses. With regards the Morbi tragedy, there is a newspaper report which says that only 6% of the project cost was spent. Who validated the work or what was the mechanism? Is there any mechanism at all, on the ground. It would worthwhile to see what was technical, work experience and turnover requirements just to qualify for a project of this nature. Who fixed these qualifications and on what grounds? And who validated the matching of the tech / work experience qualifications?

A two-year project getting completed in six months is in itself a red herring. Does the owner of the Project not inspect during the execution of the Project, in this the concerned municipality. Morbi is just indicative of the method and processes we employ to create, procure, execute and run our projects. How far are we from the functional legal and technical regimen required for such projects? There were no safety clauses as reported in the public domain. Though it was not issued, it would interesting to find the process of issuing fitness certificate, broadly the testing mechanism. The utility of the accountability / liability provisions, if any, has not been of any help, given the present nature and progress of the case. How legal was the sub-contracting?

LEGAL DOCUMENTS AND TECHINICAL VALIDATION ARE FILLERS TO A ROBSUT DE-FACTO EXISTING PROCUREMENT / PROJECTS MACHINE.
Sanjay Sahay

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