Vishnu S Warrier
Founder, Lex-Warrier Foundation
At the apex of the statutory framework, governing public procurement is Article 299 of the Constitution of India, which stipulates that contracts legally binding on the Government have to be executed in writing by officers specifically authorized to do so. Position of law relating to execution of Government Contracts is well-defined in accordance with Article 299 of the Constitution of India. However, it does not necessarily imply that the provisions of the Indian Contract Act have been superseded completely; yet the formalities as imposed by Article 299 and the strict compliance of the same have been regarded by some as being extremely inconvenient and restrictive to government operations in practice, due to the procedural requirements. Consequently, the Courts have in the manner of delivering judgments mitigated the rigours of the formalities contained in Article 299(1), and have enforced contracts upon substantial compliance and not strict compliance with the requirements of Article 299(1) of the Constitution of India. The Constitution also enshrines Fundamental Rights, which have implications for Public Procurement. By virtue of Article 299 of the Constitution of India, all contracts on behalf of the Union Government or state Governments are to be entered into and executed by authorised persons on behalf of the President of India or Governor of the state, respectively. In other words, the Government contracts must be expressed as to be made by the President or the Governor. They shall be executed by the competent person and in the prescribed manner. All contracts shall be signed and entered into after receipt and verification of the requisite performance security, by an authority empowered to do so by or under the orders of the President of India in terms of the provisions of Indian Constitution .
Keywords: Public procurement, tendering, government contracts, Indian Constitution, Article 299