General Terms and Conditions of Sale / Purchase in Government e-Marketplace (GeM) - Pilot Phase

12/05/2016
  1. GeM Portal :

 

The “GeM” i.e. Government e-Marketplace is for the government users to cater to their demand of commonly required Goods & Services.   

 

“Purchaser (s)/Buyer(s)” is the Contract placing authority, which includes Central Government Ministries/Departments including its attached/subordinate offices, Central Public Sector Units (CPSUs) and Autonomous Bodies located in Delhi/New Delhi acting through its authorized officer(s) for and on behalf of President of India/CPSU/Autonomous Bodies, as the case may be, for purchase of Goods/Services offered by “Vendor(s)/Seller(s)”.

 

“Vendor(s)/Seller(s)” is the firm(s) [a proprietorship/partnership firm/Limited Liability Partnership/Private Limited/Limited company/Society registered under Society’s Act] that offers its Good(s)/Service(s) on GeM and agree to accept the contract placed by “Purchaser (s)/Buyer(s)” for supply of the Good(s)/Service(s) as per the terms and conditions of GeM.

 

The “Vendor(s)/Seller(s)” on GeM will be the OEMs (Original Equipment Manufacturers) and/or their authorized channel partner(s)/ resellers and e- Marketplaces. 

 

  1. Annual Procurement Plan(s):

 

The Purchaser(s)/Buyer(s) will provide projection of their annual demands in the GeM indicating required Goods/Services with specification & quality, quantity, consignee location and Delivery Period requirements etc by way of Annual Procurement Plan.

 

  1. Offer(s) by Seller(s):

 

Seller shall offer their Goods/Services indicating specification, prices in Indian Rupees, terms of delivery and delivery period, Warranty/Guaranty, validity etc as per template prescribed in GeM. Seller would ensure that the Goods/Services offered are latest, new and complete in all respects.

 

The same can be modified at any point of time until it has been accepted by the Purchaser/Buyer by awarding the Contract. However, if the offer including prices is selected by the Purchaser/Buyer at any point of time, the same shall be valid for award of Contract by the Purchaser/Buyer within five (05) days of such selection duly notified in the system, regardless of further increase in the prices by the Seller. After five days, such selection would no longer be available for acceptance or award of Contract. Purchaser is required to obtain necessary sanction and approval of competent authorities within these five days before award of Contract.

 

  1. Contract(s):

 

Purchaser/Buyer may award the Contract(s) digitally signed on-line in the GeM after thorough and due diligence to meet their requirements in all respects including quantity, quality, time and at most economical prices. In case of Services, the agreed SLA (Service Level Agreement) would also constitute the integral part of the Contract(s).  For award of Contract(s), Purchaser/Buyer is at liberty to utilize all the data/information and tools made available in the GeM including e-bidding and reverse e-auction. On award of the Contract(s), it would be construed that the Purchaser has obtained all necessary Administrative & Financial sanctions of the competent authority and adequate funds are available indicating the relevant Head of accounts in the awarded Contract(s). These Contract(s) and transactions in the GeM shall be governed as per terms and conditions specified in the GeM and also as applicable & prevailing Rules and Laws in India, which are required to be adhered to by the Purchaser/Buyer as well as Seller.

 

  1. Prices:

 

The prices shall be firm and fixed at any point of time and shall be indicated in INR for each accounting unit on all inclusive basis, both in numerical digits as well as words in the offer (s) as well as Contract(s).  In case of any difference between the two, entries in the words will prevail. The offered prices in the GeM shall in no case exceed than its MRP and/or those offered elsewhere including any e-commerce sites for that point of time. In case lower prices are found / discovered at any stage, the difference shall be recovered from the Seller by the Purchase/Buyer in addition to their removal / debarring from the GeM by DGS&D.

 

  1. Terms and Conditions in GeM:

 

The offer (s) and resultant Contract(s) to be awarded will be governed by this “General Terms & Conditions of Sale/Purchase in GeM. The offer(s) and resultant Contract(s) are required to be digitally signed using class 3 digital signature on-line by the competent authority of the Seller and Purchaser/Buyer.

 

  1. Performance Security and Performance

 

The Seller, OEM as well as its authorised Channel Partner/ reseller and e-Market Places, shall be jointly and severally responsible for satisfactorily execution of contract including warranty obligations etc. In case of default, necessary punitive actions shall be initiated against the seller including their debarment or downward grading in the GeM.

 

For procurement through Reverse Auction/e-bidding, Purchaser/Buyer may appropriately incorporate suitable provisions for Performance Bank Guarantee (PBG), if required, as part of bidding document and hence contract.

 

  1. Duties & Taxes :

 

  1. Prices shall be all inclusive basis i.e. including excise duty taking into account the MODVAT benefits if any, sales tax (ST/CST/VAT/), Service Tax, Customs duty, Entry Tax etc. indicating its applicable rate(s).  Statutory variation, if any, shall be applicable during the original / re-fixed delivery period specified in the Contract(s).

 

  1. The Bill Form shall be on-line provided to the seller by the Purchaser which may inter alia include the following confirmations from the Seller:

 

  1. Regarding Excise Duty: Seller while submitting the Bills, will also furnish the Certificates on the Bill itself stating that  i) Certified that the Excise Duty charged on this Bill is not more than what is payable under the provision of the relevant Act or the Rules made thereunder; ii) Certified that the amount of Rs……………claimed as Excise Duty in this bill is in accordance with the provisions of the Rules in all respects and that the same has been paid to the Excise Authorities in respect of the Stores covered by this Bill; iii) Certificate with each Bill to the effect that no refund has been obtained in respect of reimbursement of Excise Duty made to the Seller during three(3) months immediately preceding the date covered by the relevant Bill; iv) Seller’s Statutory Auditor’s Certificate as to whether any refunds have been obtained or applied for by the Firm or not in the preceding financial year, after the Annual Audit of their Accounts also indicating details of such refunds/application, if any; v) A Certificate along with the Final payment Bills to the effect whether or not they have any pending appeals/protest for refund or partial refund of Excise Duties already reimbursed to the Seller by the Government pending with the Excise Authorities and, if so, the nature of the amount involved and the position of such appeals; vi) An undertaking to the effect that in case it is detected by the Government that any refund from Excise Duty Authorities obtained by the Contractor after obtaining reimbursement from the Paying Authority and if the same is not refunded by the Seller to the Paying Authority, giving details and particulars of transactions, the Paying Authority will have full authority to recover such amount from the Seller’s outstanding bills against a particular contract or any other pending Government Contract and no dispute on this account would be raised by the Seller.

 

  1. Regarding Sales Tax/VAT: In Contract(s) or amendments thereto allowing Sales tax/VAT, State or Central, the Seller shall furnish the certificates on their relevant Bill for Sales Tax:  i) “Certified that the goods on which Sales Tax has been charged have not been exempted under the Central Sales Tax Act or State Sales Tax Act or the rules made thereunder and the charges on account of Sales Tax on these goods are correct under the provisions of that Act or the Rules made there under; ii) Certified further that we (or our branch) or (Agent) …………. (Address) ……………… are registered as dealers in the State of …………. under Registration No. …….. for the purpose of Sales Tax; iii) Certificate that the assessment for the period under which the supplies made to the Government Department or Consignee has been made or not. In case the Assessment has been done, the Seller should furnish a copy of the Assessment Order in which the supplies or the supply order have been covered to determine the exact rate of sales tax at which they have been assessed by the sales tax authorities.

 

  1. Octroi Duty and/or other local taxes:  The Seller shall have discretion to offer Goods/Services for the select consignee locations in the country and they are expected to account for all local taxes (such as levy of town duty, Octroi Duty, Terminal Tax and other levies of local bodies etc.) also while quoting the price for the listed Goods/Services.

 

  1. Enrolment/ Transaction Fee from Sellers for utilization of GeM :

 

During Pilot Phase, no enrolment/transaction fee shall be charged from the Seller for enrolment and usage of GeM. 

 

 

  1. Integrity Pact :

 

  1. As an Integrity Pact, all the users in GeM i.e. Seller as well as Purchaser/Buyer shall use, practice and observe all the best, clean, ethical, honest & legal means and behaviour maintaining complete transparency and fairness in all activities related to GeM.

 

  1. In compliance thereof, the Seller undertakes that ;

 

  1. None of  its office bearers/Proprietor/partners/Directors or employee/ representative have been ever convicted in any court of law for moral turpitude or involved/guilty of malpractices such as bribery, corruption, fraud, substitution of bids/offers, interpolation, misrepresentation, evasion, habitual defaulter of tax/dues payments to government etc in relation to the business dealings;
  2. They are not suspected to be of doubtful loyalty to India;
  3. They have not been recommended by CBI or any other investigating agency for business transactions with the governments in India;
  4. There in no prima facie case that they have been involved of guilty of an offence involving moral turpitude;
  5. There is no security and question of loyalty consideration for the State/India warranted;
  6. The Goods/Services including Prices offered are the best and most economical for the Government users without any attempt to make any cartel/pool of any sort/manner whatsoever;
  7. All the information/undertakings given in GeM are true to the best of  knowledge and belief  and any contradiction thereto would be held against me/our company for any consequential actions including removal/ debarment from the GeM as deemed fit by the DGS&D.     

 

  1. Guarantee/Warranty :

 

The Goods/Services supplied under the Contract(s) bears the manufacturer’s Warranty/Guaranty and shall be new, of best quality, workmanship, in accordance with the requisite specifications & quality and shall have Guarantee/Warrantee for the agreed period from the date of receipt by the user/consignee/Purchaser.  Notwithstanding the fact that the Purchaser or its Quality Assurance Officer may have inspected and/or approved the said Goods/Services, it is further guaranteed that if during the said period, the Goods/Services be discovered not to conform to the requisite description and quality and/or not giving satisfactory performance or have deteriorated, and the decision of the Purchaser in that behalf shall be final and binding on the Seller and the Purchaser shall be entitled to call upon the Seller to rectify and/or replace the Stores or such portion thereof as is found to be defective by the Purchaser within 7 days and in such an event, the above period shall apply to the Goods/Services rectified and/or replaced from the date of rectification and/or replacement mentioned in warranty thereof. Otherwise, the Seller shall pay to the Purchaser such compensations that may arise by reasons of the warranty therein contained. In cases requiring Spares, the Seller guarantees that they will supply Spare Parts, if and when required on agreed basis for an agreed price. The agreed basis could be an including but without any limitation an agreed discount on the published catalogue of an agreed percentage of profit on the landed cost. The Seller furnishes the Warranty to the effect that before going out of production for the Spare Parts, they will give adequate notice to the Purchaser of the Goods/Services so that the latter may undertake the balance of lifetime requirements. The Seller also furnishes the Warranty to the effect that they will furnish the blue prints of drawings of the Spares, if and when required in connection with the said Goods/Services.

 

  1. Purchaser’s/Consignee’s Right of Inspection for Acceptance/Rejection (Return Policy):

 

The Goods/Services delivered shall bear the self certified Manufacturer’s/Seller’s Warranty/Guaranty. Purchaser/Consignee shall have the right to inspect themselves and/or through its appointed agency, at manufacturer’s/Seller premises and/or Consignee’s site(s) on receipt and accept or reject on proper justification any consignment of the Goods/Services received within a period of 10 days of receipt and will accordingly issue on line ‘Purchaser’s/Consignee’s Receipt cum Acceptance Certificate’, which will form the basis of Payments to the Seller. In case such Certificates are not issued within 10 days, the concerned Goods/Services will be considered as deemed accepted. However, no payment are required to be made for rejection, if any, and in that event the Seller would be liable to remove/lift back such rejected Goods/Services within 10 days without any extra charge/cost to the Purchaser/Consignee failing which suitable ground rent/warehousing charges would be payable by the Seller to the Purchaser/Consignee, which is treated as Return Policy of the GeM.

 

  1. Payment Authority and Payment Terms:

 

On-line payments shall be made in INR as per following terms by the Pay & Accounts Officer of the Purchaser to be stipulated in the Contract against the on-line bills to be submitted by the Seller:

 

  1. For Goods :

 

In case of goods, 100% payment will be released within ten (10) days of issue of consignee receipt-cum-acceptance certificate and submission of bills.  

 

  1. For Services:

 

In case of services, 100% payments on the basis of monthly bills will be paid within 10 days of submission of bills with prescribed documents.

           

  1. All the aforesaid activities shall be on-line in the GeM.

 

  1. Resolution of disputes:

 

In the event of any question, dispute or difference arising under the terms and conditions of the GeM, the jurisdiction of the same shall be at the place from where contract has been placed by the purchaser and may be referred to the arbitration for which the arbitrator(s) for adjudication of the matter shall be nominated by the Purchaser. The arbitration in the matters related to GeM shall be governed as per prevailing Indian Arbitration and Conciliation Act 1996 and would be binding upon the Seller and Purchaser/Buyer. In all such cases in the GeM, the dispute would not be referred or entertained by Facilitation Council, Consumer Forum or any other adjudication forum and DGS&D would not be a party to any such dispute/matter.

 

  1. Terms of delivery and Delivery Period :

 

All the Goods/Services in the GeM shall be offered on Free Delivery at Site basis including loading/unloading, installation, commissioning etc as required, indicating the time period as Delivery Period for its completion. The Seller would offer these details, which would constitute the part of the awarded Contract(s) in the GeM and would make a binding Contract between the Seller & the Purchaser/Buyer. Any modification thereto shall be mutually agreed and incorporated in the Contract. This Delivery Period/Time shall be deemed to be essence of the Contract and delivery must be completed not later than such date(s).

 

The Consignee will as soon as possible but not later than 10 days from the date of arrival of Goods/Services at destination site notify the Seller of any loss or damage that may have occurred during transit.

 

 

  1. Extension of Delivery Period :

 

Purchaser may, on the request of the Seller or otherwise, extend the delivery date suitably subject to the following conditions:

 

  1. The original Delivery Period may be re-fixed by the Purchaser without any

Liquidated damages subject to Force Majeure conditions mentioned below and also on the ground/reasons attributable to the Purchaser.

           

b)         For other cases, provided the price trend is not lower, the Delivery Period may be suitably extended for which an amount equal to the Liquidated Damages for the extended period(s) for delay in the supply of the Goods/Services after the expiry of Contract delivery/re-fixed period, shall be recovered from the Seller as mentioned hereinafter for the extended period. No increase in price on account of any other ground including market rate, statutory increase in or fresh imposition of Customs Duty, Excise Duty, Sales Tax/VAT which takes place after the original/re-fixed delivery date shall be admissible during such extended period(s), though reduction if any of these accounts shall be payable to the Purchaser.

 

16. Force Majeure:

 

            If at any time during the continuance of the Contract, the performance in whole or in part by either party of any obligation under this Contract shall be prevented or delayed by the reasons of any war, hostility, acts of the public enemy, epidemics, civil commotion, sabotage, fires, floods, explosion, quarantine restrictions, strikes, lockouts or act of God  provided notice of happening of such event duly evidenced with documents is given by one party to the other within 10 days from the date of occurrence thereof, neither party shall be by reasons of such event, be entitled to terminate the Contract nor shall either party have any claim for damages against the other in respect of such non-performance or the delay in performance, and deliveries under the contract shall be resumed as soon as practicable after such event has come to an end or ceased to exist, and the decision of the Purchaser as to whether the deliveries have been so resumed or not, shall be final and conclusive, Provided further that if the performance in whole or part of any obligation under this contract is prevented or delayed by reason of any such event for a period exceeding 10 days, either party may at its option terminate the contract provided also that the purchaser shall be at liberty to take over from the Seller at a price to be fixed by Purchaser, which shall be final, all unused, undamaged and accepted material, bought out components and stores in course of manufacture in the possession of the Seller at the time of such termination or such portion thereof as the Purchaser may deem fit excepting such materials, bought out components and stores as the Seller may with the concurrence of the Purchaser elect to retain.

 

  1. Liquidated Damages:

 

If the Seller fails to deliver any or all of the Goods/Services within the original/re-fixed Delivery/Time period(s) specified in the Contract, the Purchaser will be also entitled to deduct/recover the Liquidated Damages for the delay, unless covered under Force Majeure conditions aforesaid, @ 0.5% per week or part of the week of delayed period as pre-estimated damages not exceeding 5% of the contract value without any controversy/dispute of any sort whatsoever.

 

      18. Termination for default:

 

If the Seller does not perform their obligations under the Contract within the Delivery Period/Date stipulated in the Contract, the same would constitute the breach of the Contract and the Purchaser shall have the right to Cancel/withdraw the Contract for the unsupplied portion after the expiry of the original/re-fixed delivery date/period stipulated in the Contract. Such cancellation on account of non performance by the Seller would entitle the Purchaser to forfeit the Performance Security Bank Guarantee in whole or in part, if applicable, apart from their downgraded ratings or debarment from the GeM.

 

  1. Closure of Transaction:

 

After satisfactory completion of all the obligations under the Contract, No Demand Certificate in the GeM would be digitally signed and issued on–line in the GeM which would be taken as final settlement of all dues of the Contract and treated as repository and archived in the GeM.            

 

  1.  Role of DGS&D in GeM :

 

DGS&D is hosting GeM portal envisaged to function as one-stop online shop catering to, with duly secured payment transactions in electronic mode and with adequate facilities including e-bidding, reverse e-auction as well as Call Centre as help desk.  Further, GeM is equipped with back up for audit trails in respect of all data/transactions, duly certified by Standardisation Testing & Quality Certification (STQC), DeitY, Government of India.  It includes its regular modifications and up-gradations from time to time.  DGS&D is operating this portal only as a facilitator to various government department users to source their demand of commonly required goods and services on competitive prices with the speed and flexibility of e-commerce platform. As such, the role of DGS&D is restricted to the extent of facilitator only and the purchase agreement in respect of any of the transaction executed through GeM shall be between the Purchaser /Buyer and Seller.

 

It shall be responsibility of the Purchaser / Buyer to ensure due diligence in respect of any of the activities pertaining to the procurement like technical acceptability of goods / services, credentials of the sellers, reasonability of prices, execution of contract and other allied activities.  DGS&D shall not be held responsible on any of the afore-said aspects in respect of contract(s) placed by the purchaser / Buyer.

 

DGS&D also reserves the rights to remove/debar any Seller or Purchaser/Buyer or any item(s)/category of item(s) from the GeM owing to any default, breach, non-compliance to terms and conditions of GeM and Rules made by Government from time to time.     

 

Undertaking/Certificate

 

I, on behalf of the Seller/Purchaser, as duly constituted and authorized authority,  confirm to have carefully read all the aforesaid terms and conditions of GeM and unconditionally accept the same.

 

Digitally signed                                                                                 Digitally signed

 

(For Seller)                                                    

http://commerce.nic.in/, Ministry of Commerce and Industry : External website that opens in a new window
https://mygov.in, My Government : External website that opens in a new window
http://www.makeinindia.com/home, Make in india : External website that opens in a new window
http://digitalindia.gov.in, Digital India : External website that opens in a new window
http://www.skillindia.in, Skill India : External website that opens in a new window
http://startupindia.gov.in/, Startup India : External website that opens in a new window
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