Para 9.3.2 — GOODS_MANUAL

9.3.3 Delays in Delivery 1. Delay in Delivery: Suppliers shall be required to adhere to the delivery schedule (including any instalment thereof or incidental Work/ Services, e.g., installation, commissioning, operator training, etc.) specified in the purchase order (or as extended) and, if there is a delay in supplies, it amounts to breach of contract, since ‘Time is the Essence of the Contract’. The Procuring Entity may, without prejudice to his other rights:

a) Recover from the contractor liquidated damages as per para 9.3.9 below or b) treat the delay as a breach of contract as per para 9.8.2 below and avail all the remedies therein, although it is in the purchaser’s interest to resort to this provision only as a last resort in case of inordinate delays.

2. Inordinate Delays: Inexcusable delays of more than one-fourth (25%) of the total completion period shall be treated as inordinate delays. Such inordinate delays may be treated as a breach of contract and shall be noted as deficient performance and held against the contractor in future tenders. A show-cause notice shall be issued to the contractor before declaring it a deficient performance. In case Procuring Entity decides to allow performance of contract, after inordinate delays, maximum limit on LD shall be 10% (instead of 5%) of the total contract value, as per para 9.3.9-1 below.

3. Delay in Supplies for which Supplier is not Responsible: a) In cases where there is a delay for which the supplier is not responsible, the delivery period needs to be re-fixed without imposing any penalty on the supplier (i.e., without LD and without a denial clause). Normally, in the following circumstances, the supplier may not be considered to be responsible for the delay: i) Cases where the supplier is dependent on the approval of the pre-production sample, and the delay occurs in approving the sample though submitted by the supplier in time; ii) Where extension in the delivery period is granted on account of some omission on the part of the purchaser, which affects the due performance of the contract by the supplier, iii) Cases where the purchaser controls the entire production schedule of supplier.

9.3.2 Terms of Delivery Terms of delivery (FOR, FOB, CIF, CFR, and so on), inter alia, determine the delivery point of the ordered goods from where the purchaser is to receive/collect the goods. It also decides the legally critical issue of when the ‘titles of the goods’ have passed to the purchaser. The delivery period is to be read in conjunction with the terms of delivery. Therefore, the delivery is taken to have been made at the time when goods reach the delivery point as per the delivery terms. Chapter 6 has more details in this regard.

iv) Cases where the production and/or delivery has been affected by Force Majeure or statutory change or specific executive instructions issued by Govt. b) There may be delays for which both buyer and supplier may be responsible to a different extent. In such cases, the levy of LD and Denial clause may be decided on merits.