GOVERNMENT CONTRACTS

SUSHMA SOSHA PHILIP, ROLL NO. 715, ADMINISTRATIVE LAW PROJECT, 5th SEMESTER, NUALS

TABLE OF CONTENTS: INTRODUCTION What is a contract Government Contracts

A BRIEF HISTORY OF GOVERNMENT CONTRACTS Position in England Position in India

DIFFERENCE BETWEEN A GOVERNMENT CONTRACT AND A PRIVATE CONTRACT GOVERNMENT CONTRACTS AND SOVERIGN IMMUNITY Contractor selection by Government, Public bodies and Public sector

PRINCIPLES UNDERLYING GOVERNMENT CONTRACTS Reasonableness and Fairness Public Interest Equality and Non-arbitrariness

FORMATION OF GOVERNMENT CONTRACTS IMPLIED CONTRACT WITH THE GOVERNMENT CONTRACTUAL LIABILITY JUDICIAL REVIEW OF GOVERNMENT CONTRACTS CONCLUSION BIBLIOGRAPHY

INTRODUCTION: What is a contract:

According to the Encyclopedia Britannica, Edition 2006; A contract is a promise enforceable by law. The promise may be to do something or to refrain from doing something. The making of a contract requires the mutual assent of two or more persons, one of them ordinarily making an offer and another accepting. If one of the parties fails to keep the promise, the other is entitled to legal recourse. Section 2(h) of the Indian Contract Act, 1872[2] defines a contract as "An agreement enforceable by law". The word 'agreement' has been defined in Section 2(e) of the Act as every promise and every set of promises, forming consideration for each other'.

To understand this definition completely, it is necessary to understand what an agreement is. An agreement, as defined by Section 2(e) of the Indian Contract Act, 1872[2] is, Every promise and set of promises, forming consideration for each other. Government Contracts:

A contract to which The Central Government or a State Government is a party is called a 'Government Contract'. Government contracts have assumed great importance in today's day and age. Today the state is a source of wealth. As a democracy with social welfare on its high priority list, government's economic activities are expanding and the government is increasingly assuming the role of the dispenser of a large number of benefits. The government earns its income mainly through taxes, which it invests in social welfare. The government also owns stake in many public companies. Today a large number of individuals and business organizations enjoy beneficence in the form of government contracts, mineral rights, licenses, quotas, jobs, etc. Thus the government has the right to dispose them off in any manner. The governments should not be given unlimited rights to use and dispose these resources to any arbitrary party. Hence, it is essential to formulate some laws to regulate and protect individual interest in such wealth and thus structure and discipline the government discretion to confer such benefits.

The principle of promissory estoppel is upheld in government contracts as in any other form of contracts. This implies that, generally, the Government cannot go back on any of the promises it makes. However, the principle of Executive necessity sometimes provides a way for the government to make any change in the terms of the contracts entered into by it. Executive necessity is the principle which states that although Government can be bound through its officers by a commercial contract, and like anyone else is liable to pay damages, Government is not competent to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. The essence of the doctrine therefore is that Government cannot hamper the freedom of the future actions of Parliament in matters which concern the welfare of the State.1 A BRIEF HISTORY OF GOVERNMENT CONTRACTS: Position in Britain Before 1947, the Crown could not be sued for a breach of Contract. An offended party had to give a plea, which if the courts thought were correct, could adequately compensate him/ her. However, it was by no means a right. The Crown Proceedings Act,1947, abolished this procedure and permitted suits being brought against the Crown in the ordinary courts to enforce contractual liability, a few types of contracts being, however, excepted.2 Position in India The Indian Contract Act, 1872 is different in the sense that the contracts need not have any particular form. They can be written or expressed, verbal or implied.3 However, for Government Contracts, this is not true. A contract entered into by or with the

1 2 3

Legal safeguards of a Government Contract in India: A Critique- Navajyoti Samanta M.P.Jain; Indian Constitutional Law;5th Ed Moitra's Law of Contract & Specific Relief; 5th ED

Central or State Government has to fulfill certain formalities as prescribed by Article 299 of the Indian Constitution. DIFFERENCE BETWEEN A GOVERNMENT CONTRACT AND A PRIVATE CONTRACT: A Government contract is a species of the genus contract and is governed by the same law of contract, the Indian Contract Act 1872. However Government contracts are a class by themselves having special and completely distinct considerations. In a loose sense, any contract to which Government is a party is a Government contract, as has already been stated. But government contracts are given special protection because these contracts involve public interest and public finance. Thus, generally these types of contracts are subject to certain limitations which otherwise will not have been relevant to private contracts. Thus though Government contract is ruled by Constitutional and ordinary contract laws, governments all throughout the world as well as in India have developed forms of contracts which have been drafted by skilled lawmen conferring power on to the Government not normally reserved for the common parties to a private contract. Further, in the field of Government contract the obligatory force of the contract is much weaker than in the case of private contract, hence the doctrine of Executive necessity has no parallel in private contract. Thus, government contract are not just any ordinary contracts. Though called a contract and governed by Contract act, they are quite different from private contracts. A private contract is just to provide supplies or services but a government contract may provide for livelihood and is instrumental for implementation of governmental policies. GOVERNMENT CONTRACTS AND SOVEREIGN IMMUNITY: There is no separate law applicable to Government contracts. The Government of India (GOI) and State Governments can carry on any trade or business, acquire, hold and dispose off property and enter into contracts (Articles 298 and 299 of the Constitution of India). In the realm of contracting, no sovereign immunity is available to the GOI or State Governments, public bodies and public sector undertakings. Any dispute arising in a contract with GOI or State Governments has to be resolved in accordance with the general law. All contracts made in the exercise of the

executive power of the GOI or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be. The period of limitation for filing suits by the Government is thirty years, as against three years for others. Neither the President nor the Governor nor any person executing or making any such contract or assurance on behalf of any of them shall be personally liable in respect of any contract or assurance made or executed. Contractor selection by Government, Public bodies and Public sector In selecting a contractor, the Government has to follow competitive bidding; should act impartially, without favouritism and should not act arbitrarily. The Government must abide by the conditions laid down in the tender notice and cannot act arbitrarily and capriciously or show favouritism.4 PRINCIPLES UNDERLYING GOVERNMENT CONTRACTS: Reasonableness and Fairness Article 14 projects the principle of reasonableness and rationality. The state cannot act arbitrarily while entering into a relationship which is contractual or otherwise with a third party, and its action must comply to some standards. The action of the Executive Government should be informed with reason and it should also be free from arbitrariness. This was stated in Chandra Bhan Singh v State of Bihar, AIR 1967. All actions of the State and its instrumentality should surely be fair and reasonable. The State cannot be allowed to function in an arbitrary manner while entering into contracts. The decision of the State both while entering into the contract as well as refusing to enter into the contract should be fair and reasonable. It cannot be allowed to pick and choose the persons and entrust the contract according to its whims and fancies. Like all its actions, the action even in the contractual field is bound to be fair. According to the settled law, the terms and conditions of the contract regulate the rights and obligations which arise out of the contract.5

4 5

www.kmplegal.com Y.Konda Reddy v State of A.P.,AIR 1997 AP 121

According to the requirement of 'fairness', administrative authority must act in good faith; and without bias; must not act arbitrarily or capriciously; apply its mind to all relevant considerations and must not be swayed by irrelevant considerations and must not come to a conclusion which is perverse or is such that no reasonable body of persons properly informed could arrive at. The principle of reasonableness would be applicable even in the matter of exercise of executive power without making law. It is settled principle of law that the court would strike down an administrative action which violates any foregoing conditions. The duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the State which is not there in the contract. The Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the Rule of Law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasijudicial, the doctrine of fairness is evolved to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions. In a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. Public Interest State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain percepts and principles have to be observed. Public interest is the paramount consideration. There may be situations where there are compelling reasons necessitating the departure from the rule, but there the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. The consideration to weigh in allotting a public contract are and have to be different than in case of a private contract as it involves expenditure from the public exchequer. The action of the public authorities thus have to be in conformity with the standards and norms which are not arbitrary, irrational or unreasonable. And whenever the authority departs from such standard or

norms, the Courts intervene to uphold and safeguard the equality clause as enshrined in Article 14 of the Constitution and strike down actions which are found arbitrary, unreasonable and unfair and prone to cause a loss to the public exchequer and injury to public interest. Therefore, even when an award of contract may not be causing any loss to the public exchequer manifestly, it may still be liable to quash the judgment for being unfair, unreasonable, discriminatory and violative of the guarantee contained in Article 14. Equality, Non Arbitrariness From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belonging to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is violative of Article 14. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14 as was stated in Maneka Gandhi v Union of India, AIR 1978 SC 597. FORMATION OF GOVERNMENT CONTRACTS The executive power of the Union of India and the States to carry on any trade or business, acquire, hold and dispose property and make contracts is affirmed by Article 298 of the Constitution of India. If the formal requirements required by Article 299 are complied with, the contract can be enforced against the Union or the States.6 Article 299 provides: "(1) All contracts made in the exercise of executive power of the union or a state shall be expressed to be made by the President or by the Governor of the State as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such person and in such manner as he
6

Pollock &Mulla; Indian Contract & Specific Relief Acts;12th Ed

may direct or authorize. (2) Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purpose of any enactment relating to Government of India hereto before in force , nor shall any such contract or assurance on behalf of any of them be personally liable in respect thereof". Thus Article 299 lays down three conditions which the contracts made in the exercise of the executive power of the Center or a State must fulfill to be valid 1. The contract has to be expressed to be made by the President (or a Governor in case of a State) 2. These contracts made in the exercise of the executive power are to be executed on behalf of the President/Governor as the case may be hence the contract is in the name of the President (or Governor). 3. The execution of the contract must be by such person and in such manner that the President (or Governor), can authorize them. As opposed to contracts between private parties, just the execution between two parties is not enough. A tender for the purchase of goods in pursuance of a tender notice, notification or statement inviting tenders issued by or on behalf of the President or the Governor, as the case may be, and acceptance in writing which is expressed to be made in the name of the President or Governor and is executed on his behalf by a person authorized in that behalf would fulfill the requirements of Article 299(1). If these requirements are fulfilled, a valid contract may result from the correspondence. It has been held by the Hon'ble Supreme Court in the case of Bhikaraj Jaipuria v Union of India.7 It is clear from the words "expressed to be made" and "executed" that there must be a formal written contract. The provisions of Article 299(1) are mandatory in character and any contravention thereof nullifies the contract and makes it void. The provisions of Article 299(1) have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against the unauthorized contracts. The provisions are embodied in the constitution

AIR 1962 SC 113: (1962)2 SCR 880

on the ground of public policy on the ground of protection of general public and these formalities cannot be waived or dispensed with." Where a contract is made by tender and acceptance, the acceptance must be made by a duly authorized person and on behalf of the President. Again the acceptance must be intimated in writing to the party for the contract to be valid. To be enforced by or against the government, the conditions given in Article 299 of the Constitution must be satisfied, else the contract would be deemed void. Thus to protect the general public, which are represented by the Government, the terms of the Article have been made mandatory. IMPLIED CONTRACT WITH THE GOVERNMENT In view of Article 299(1), there can be no implied contract between the government and another person. Implied contracts between the Government and other parties are not allowed, as they would make Article 299 useless. It was held by the Hon'ble Supreme Court in the case of K.P.Chowdhary v State of Madhya Pradesh8 that, "In view of the provisions of Article 299(1) there is no scope for any implied contract. Thus no contract can be implied under this Article. If the contract between the Government and a person is not incompliance with Article 299(1), it would be no contract at all and would not be enforceable as a contract either by the Government or by the person." This is because the person who had a contract with the government could get away by saying that an implied contract may be inferred on the facts and the circumstances of the particular case9. However, there is the other side to the coin as well. The Courts have also faced that very rigid observances of all the conditions stipulated in Article 299 may not always be practicable. Hundreds of government officers daily enter into a variety of contracts, often of a petty nature,
8 9

AIR 1967 SC 203: (1966)3 SCR 919 T.K Mukherjee; Law of Contract; Vol 1;Ed 2000

10

with private parties. At times, contracts are entered through correspondence or even orally. There would be unnecessary delays with paperwork hindering this.[16] In fact, even with the current amount of paperwork, there are often fingers raised at the red tapism prevalent in India. The judicial rational to Article 299 has been twofold: 1. Protecting the Government from unauthorized contracts; and 2. Safeguarding the interests of unsuspecting and unwary parties who enter into contracts with government officials without fulfilling all the formalities laid down in the Constitution. As mentioned above, however, a strict compliance with these conditions may be unbalanced to private parties, and at the same time, make government operations extremely difficult and inconvenient in practice. At the end of the day, the Law is there to bring order and discipline without hindering processes. Consequently, in the context of the facts of some cases, the courts have somewhat moderated the inflexibility of the formalities contained in Article 299(1). Thus there have been cases where we have had enforced contracts even when there have not been full, but substantial, compliance with the requirements of Article 299(1). A contract to be valid under Article 299(1) has to be in writing. It does not, however, mean that there should always be a formal legal document between the Government and the other contracting party for the purpose. A valid contract could emerge through correspondence, or through offer and acceptance, if all conditions of Article 299(1) are fulfilled. Under Article 299(1), a contract can be entered into on behalf of the Government by a person authorized for the purpose by the President, or the Governor, as the case may be. The authority to execute a government contract can be by rules, formal notifications etc. The authorization to execute may be officers apart from those mentioned in Article 299(1), and this may be given instantly. CONTRACTUAL LIABILITY Article 299(2) immunizes the President, or the Governor, or the person executing any contract on his behalf, from any personal liability in respect of any contract executed for the purposes of the

11

Constitution, or for the purposes of any enactment relating to Government of India in force. This immunity is purely personal and does not immunize the government, as such, from a contractual liability arising under a contract which fulfills the requirements under Article 299(1). The governmental liability is practically the same as that of a private person, subject, of course, to any contract to the contrary. In order to protect the innocent parties, the courts have held that if government derives any benefit under an agreement not fulfilling the requisites of Article 299(1), the Government may be held liable to compensate the other contracting party under S.70 of the Indian Contract Act, on the basis of quasi contractual liabilities, to the extent of the benefit received. The reason is that it is not just and equitable for the government to retain any benefit it has received under an agreement which does not bind it. Article 299(1) is not nullified if compensation is allowed to the plaintiffs for work actually done or services rendered on a reasonable basis and not on the basis of the terms of the contract. When a contract is not enforceable due to non-compliance with the requirements of Art. 299 of the Constitution, parties to such contract are to restore the benefits under the agreement according to the provisions of sec. 65 of the Contract Act 1872.10 JUDICIAL REVIEW IN CONTRACTUAL MATTERS Judicial quest in administrative matters has to find the right balance between the administrative discretion to decide matters contractual or political in nature, or issues of social policy and the need to remedy any unfairness. A State need not enter into contract with anyone, but when if does so it must do so fairly without discrimination and without unfair procedure; and its action is subject to judicial review under Article 14 of the Constitution of India. Where the Government is dealing with the public, whether by way of giving jobs or by entering into contracts or issuing quotas or licenses or granting other forms of largess, it cannot arbitrarily use its power of discretion and in such matters must conform to certain standards or norms which are not arbitrary, irrational or irrelevant. The principles of judicial review would apply to the

10

Hindustan Construction Co. v State of Bihar AIR 1963 Pat 254

12

exercise of the contractual powers by the Government bodies in order to prevent arbitrariness or favoritism. However, there are inherent limitations in the exercise of that power of judicial review. The judicial power of review is exercised to rein any unbridled executive functioning. The restraint has two contemporary significances. One is the ambit of judicial intervention; the other covers the scope of the Court's ability to quash an administrative decision on its merits. These restraints bear the hallmark of judicial control over administrative action. Judicial review is concerned with not reviewing the merits of the decision in support of which the application for judicial review is made, but the decision making process itself. It is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which the decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified under 1. Illegality: This means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. 2. Irrationality 3. Procedural impropriety The above are only the broad grounds but it does not rule out the addition of further grounds in course of time. With respect to the judicial review of administrative decisions and exercise of contractual powers by Government bodies, the Hon'ble Supreme Court has held, "The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in the administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of

13

the Wednesbury principle of reasonableness (including its other facts) but must be free from arbitrariness not affected by bias or actuated by malafides."11 While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the 'decision making process'. By way of judicial review the Courts cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiries. But at the same time the Courts can certainly examine whether "decision making process" was reasonably rational, not arbitrary and violative of Article 14 of the Constitution. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available, taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of the selection made for entering into such contract. But once the procedure adopted by the authority for the purpose of entering into the contract is held to be against the mandate of Article 14 of the Constitution, the Court cannot ignore such action saying that the authorities concerned should have some latitude or liberty in contractual matters and any interference by the Court amounts to encroachment on the exclusive right of the executive to take such decision. The doctrine that the powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which the Parliament has appointed to take the decision. Within the bounds of legal discretion is the area in which the deciding authority has genuinely free discretion. If it passes these bounds, it acts ultra vires. The decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the Court's function to look further into its merits. CONCLUSION: Thus, government contracts, though primarily governed by the Indian Contract Act, are also, additionally governed by Articles 298 and 299 of the Indian Constitution. They have various features which set them apart from private contracts.
11

Tata Cellular v Union of India, AIR 1996 SC 11

14

BIBLIOGRAPHY: T.K Mukherjee; Law of Contract; Vol 1;Ed 2000 Pollock &Mulla; Indian Contract & Specific Relief Acts;12th Ed M.P.Jain; Indian Constitutional Law;5th Ed Moitra's Law of Contract & Specific Relief; 5th ED www.kmplegal.com www.lawteacher.net papers.ssrn.com dpe.nic.in www.slideshare.net www.indiankanoon.org Legal safeguards of a Government Contract in India: A Critique- Navajyoti Samanta