Page 64 - GSTL_11th June 2020_Vol 37_Part 2

150 GST LAW TIMES [ Vol. 37
4. Clause 11.1.3.2 of the Instructions to Bidders (for short ‘the ITB’)
provided that the bidder shall quote (i) the basis price (including all taxes and
duties etc. but excluding GST) and (ii) applicable GST% as asked for in the Bill of
Quantities. Clause 11.3 of the ITB provided that if the bid was defective in any
manner, it was to be rejected which will not entail any forfeiture of any EMD as
warranted in the case of withdrawal of a bid. As per clause 12.3 of the ITB, it was
clearly stipulated that the rate to be quoted was excluding the GST, as the GST
had to be quoted separately. Under Clause 12.4 of the ITB, it was clearly provid-
ed that payment of the GST was to be the employer’s liability (awarder’s liabil-
ity).
5. Clause 26 of the General Conditions of Contract (for short ‘the GCC’)
dealing with the taxes, duties, levies etc. specifically insists (under clause 26.2)
that it shall be the employer’s duty to pay the GST. This virtually is an exception
to the stipulation under clause 26.1 which casts the liability upon the contractor
to satisfy all the taxes, duties, levies etc.
6. Clause 14.5 of the ITB is to the following effect :
“14.5 The Bid Security shall be forfeited in any of the following circum-
stances without any notice or proof of damage to the Employer :
(a) If the Bidder withdraws or varies his bid during the period of
Bid validity.
(b) If the successful Bidder does not accept the correction of its
Bid Price pursuant to ITB sub-clauses 23.2.
(c) If the successful Bidder refuses to withdraw, without any cost
to the Employer, any deviation to bidding documents found
anywhere in the bid.
(d) If the successful Bidder fails within the time limit specified to
accept the award of Contract or fails to furnish the required
Contract Performance Security in accordance with ITB clause
27.
(e) If the bidder/his representative commits any frauds while
competing for this Contract pursuant to the Fraud Prevention
Policy of NTPC.
(f) In case the bidder is disqualified from the biding process in
terms of section 3 & 4 of the Integrity Pact.”
7. Under clause 23.2.3 of the ITB, if the rate quoted was defective, it was
open for the employer to add the left over amount and not to have the quote reduced
in any manner. Clause 23.3 of the ITB makes it further clear that if the amount
quoted is defective, it was to be properly evaluated to fix the bid price and the eval-
uated bid price had to be declared to identify the L-1 bidder. This was to avoid
any chance for a bidder to quote lesser amount to project himself and claim to be
the L-1 bidder. Similarly, if any bidder quotes a higher rate of GST, since the rate
of GST is statutory, only the notified rate can be claimed or be paid by the
awarder by virtue of the obligation under clause 12.4 of the ITB (that the liability
to satisfy the GST shall always be for the awarder/employer). That apart, Section
9 of the GST Act, read with clause 12.4 of the ITB clearly makes it obligatory for
the awarder/employer of the “works contract” read with Section 2(119) of the
CGST Act, 2017 (which includes construction) to satisfy the GST upon the
awarder of the contractor, whatever be the rate. This is virtually to the effect that,
whether the rate of GST is quoted in the tender or if any wrong rate is men-
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