Clarifications

1. It is stated that unless the tender documents permits, there should be no variable
pricing. Did the present tender document permit offers on a price variable basis? Where
can we find the provisions of the tender relating to pricing and whether it allows variable
pricing?

Ans: Kindly have a look at Clause 2.2.2 which talks about the conditions for variable pricing. You
will need to look at clause 2 as a whole and the price escalation clauses from Sunshine caterers to
find an answer to this.

2. What is the full form of GCC? Is it a general condition of the contract? What and where
are the relevant documents such as AITB, TIS, Tender Document etc.?

Ans: Full form of GCC is not relevant to answering the questions, but it is General Conditions of
Contract. The operative clauses of the tender have been captured in the Annexure to the
proposition. AITB, TIS and Tender Document would have made the proposition lengthy for no
reason. Please depend on the operative excerpts.

3. On Page 1 it is mentioned in P1 that the SAARC summit is to be held on 23rd-25th

September 2023 whereas on Page 4 in Annexure 1 section 1, it says the summit is planned
on July 24th-25th 2024, which date was the summit to actually take place?

Ans: The correct date is 23-25 September 2023.

4. P4 states that the letter sent by Sunshine including a menu with proposed menu options
reached the MEA on July 31st and was unopened till August 23, however in P5 it is stated
that the MEA had approved walnut tarts to be served as dessert. Could the nature of this
missing communication be provided in which the menu items were decided upon?

Ans: Please note that there is a missing fact here- there was a phone call where Sunshine was
informed that the MEA wanted walnut tarts as an option on August 20th.

5. Who is the "Head of Procurement" per Annexure I, Section I?

Ans: Chief Secretary.

6. Did Sunshine Caterers fulfill/declare all requirements per clause 2 of Section I of

Annexure I?

Ans: Yes.
7. What does the term "bid opening" imply as used in Clause 7 of Section 1?

Ans: Bid opening means the date on which the MEA starts accepting bids for the tender.

8. As per the letter dated July 24th, was the sum of Rs. 2 Cr ever paid as advance to Sunshine
Caterers?

Ans: Please read the facts carefully, do not assume facts in this case. If no payment details are
mentioned, there was no payment made.

9. Did the MEA ever receive the "Performance security" per clause 3.2.2(1) of Section II
of Annexure 1?

Ans: The facts of the proposition do mention a demand draft. Please read the facts carefully.

10. As per para 5 "Walnut tarts" were approved to be served, does that imply that a "sample
menu" was supplied by Sunrise caterers per the request of the MEA in the letter dated
July 24th?

Ans: Yes.

11. How are the GCC Clauses (5.1 to 5.7, 10.5.4, etc.) which are not given in the Annexure
to be used?

Ans: They are not relevant.

12. What is the hierarchy of command between the Additional Secretary and Additional
Director?
Ans: These are interchangeable, they are the same position.

13. Did Sunshine send the acceptance letter via registered post?

Ans: This is answered by the facts on page 2.

14. Was the Integrity Pact signed by Sunshine?

Ans: Yes.

15. What are the details of Form 3? There is a Form 7 mentioned in the Annexure, are they
separate documents?

Ans: These are not required to answer the proposition.

16. In Section 2, Form 3, Clause 1.2 states that the eligibility criteria is stated in Clause 3
of the NIT, however, the criteria were given in Clause 2 instead, and the numbering of
clauses in the NIT seems to skip 3 and go straight to 4 from 2. What is the correct order?

Ans: The relevant eligibility criteria are in Section I of the Annexure.

17. On what day was the telephone call made to Additional Director for approval of
additional cost of 10,00,000 due to the increase in walnut prices? Was the Additional
Director the one who approved the serving of walnut tart as dessert at the dinner?

Ans: On August 20th. Yes, it was the Additional Director.

18. Was there an arbitration clause included in the terms of the tender? Does Sunshine
have an arbitration clause in place for all of their contracts?

Ans: No.

19. Why was the mistake done in calculating the lowest bid? Was it a clerical error or a
technological error?

Ans: Technological error.

20. In P5 last line a telephonic conversation is mentioned what is the date of the same?

Ans: August 20th.

21. In P5 the last line mentions the informing of the Chief Secretary by the Additional
Director however in P7 chief secretary says that he had not been contacted by the
additional secretary. Kindly clarify this contradiction.

Ans: This is not a contradiction, the line in paragraph 7 relates to the original acceptance of
Sunshine’s bid.

22. The term ‘this agreement’ in P7 refers to the original contract or the contract with the
new price of an additional 10,000?

Ans: No, the original tender.

23. Does ‘our office’ in the 4th line first para refer to the office of MEA or the office of
Additional Secretary in P2 of page 1?

Ans: MEA.

24. Is the customer in the P3 the MEA?

Ans: Yes.

25. Is it mentioned in the tender offer that the Chief Secretary of the MEA has to approve
the tender or can we assume it to be either depending on the side?

Ans: This is part of the governmental process and the Chief Secy. clarifies in the moot problem
that they are the approving authority.

26. P6: "Kindly note that you are hereby instructed not to proceed on the contract in any
manner and that any such expenses shall solely be borne by you." Is MEA implying that
they will pay expenses up until the date on which they had terminated Sunshine Caterer's
services, and Sunshine Cateres are liable only for proceeding on the contract after the letter
of termination?

Ans: The facts do not point to such an assumption in any manner.

27. Whether sunshine caterers had stipulated their standard terms in Paragraph P3
(clauses 2.1 to 2.4) to MEA in their tender documents as well?

Ans: No, this was on the back of their menu options.

28. The first 3 lines of the Annexure are unclear. There are 3 entities mentioned in the
sentence but the "referred to as part" in the bracket mentions 4 entities. Please clarify
clearly which entity will hereinafter referred to as what.

Ans: These are interchangeable, the MEA is the approving authority for the purposes of this
tender.

29. What is the nature of the petition (SLP, Writ or CS) filed by Sunshine Caterers?

Ans: CS.

30. What type of organisation is Sunshine Caterers? What about Blu-Ray?

Ans: Private companies.

31. Is the deposit of Rs.10 Lakh a performance bond?

Ans: Yes.

32. Should compliance of the clauses mentioned in the NIT and ITB, related above
documents be assumed to be done?
Ans: Yes.

33. What is "Firm price quotation" in point no. 2.2.2?

Ans: A fixed price is known as a firm price- the price cannot be varied.

34. Was there any communication between the MEA and Sunshine Caterers between 27
July 2023 and 23 August 2023?

Ans: Yes, a phone call on August 20th to inform the Additional Director of the rise in prices and
the approval for Walnut tarts.

35. In P7, when the Chief Secretary denies liability on the grounds that the Additional
Director did not contact him regarding the agreement and thus no agreement existed, is
such statement in reference to the request for Rs 10,00,000 extra to supply walnut tarts in
P5, or the entire agreement tender in P2? In case the answer is the latter, are the letters
sent to Sunshine Caterers in P2 and P6 to be read as being sent from the Additional
Secretary and not from the Chief Secretary?

Ans: This is a question that relates to analysing the facts, therefore, answering this would amount
to providing an answer to the entire moot problem. Please read the facts carefully.

36. Do we have to argue the maintainability of the suit in the Supreme Court?

Ans: No.

37. When was the letter written by Sunshine Caterers stating that “they had acted on the
faith of the MEA’s representation and a formal agreement between the parties”?

Ans: Please read the facts carefully. The answer is quite evident.

38. Did Sunshine Caterers participate in a pre-bid conference?

Ans: Yes.

39. Which specific Make-in-Monrovia policy is referred to in sub-clause 5 of clause 2?

Ans: This is not relevant.

40. Are we allowed to frame additional issues?

Ans: No.

41. Are the procuring entity and procuring organisation the same or are they different?
Ans: Same.

42. What is BOQ file? Is it Bill of Quantities?

Ans: Yes.

43. Are the rights of the parties limited to the forms and contract given in the moot or can
we use existing real life law regarding the same?

Ans: Please try not to assume facts by using real life tenders. Please stick to the excerpts that have
been provided.

44. In Form III, Clause 2.2.2 the "adjustment in price quoted by bidders" can be done
by which party- Bidder or procuring entity?

Ans: Bidder, but this requires approval from the government.

45. Is the tender document the same as the notice inviting tender?

Ans: Yes.

46. Form III Clause 3.2.2 does the original copy of the contract mean the contract given
by the procuring entity which cannot be changed by the bidder?

Ans: 3.2.2 only deals with the execution of the contract – i.e., signing.

47. Is the tender document compatible with existing laws?

Ans: Yes.

48. What are the statutes whose sections are annexed?

Ans: Unclear question. Do you mean status? If you mean the status of the excerpts, they form the
basis of the contractual agreement.

49. What are the terms about the procuring entity in case they default? Is it vice versa?

Ans: The terms do not extend to default by the procuring entity. Clause 3.4.3 and 3.4.4 are
restricted to default by the contractor alone.

50. Who bid the lowest amount?

Ans: Blu-Ray. Read the facts carefully, please.

51. Would it be acceptable to refer to the 'model tender document for non consultancy
services', which are available at the department of expenditure portal of the ministry of
finance, for referring to the documents that are not mentioned in the proposition? If we
are allowed to use the model temder document, are we supposed to assume that there is
no deviation in what is given in the model tender document and the forms, formats,
sections etc. that are mentioned in the proposition but not given anywhere?

Ans: There are deviations, please do not refer to anything outside the excerpts provided here.

52. Whether the procuring entity sent the contract form (as per format 1: contract form
along with sub-formats), and was it signed by both the parties?

Ans: Yes- whether it was duly signed by the government is definitely a question to be answered by
students.

53. Whether sunshine caterers filled Form 5 (it is mentioned in the model tender
document) and if yes, then what was the MEA's response to it?

Ans: Form 5 is not mentioned in the proposition at all.

54. When the proposition mentions that the additional secretary 'agreed' to an additional
sum of Rs. 10,00,000 to suuply the tarts , does it use the term in the sense of how it used in
a contract or does it simply mean that he was of the same opinion as the caterers?

Ans: Please note that ‘agreeing’ to something and ‘having the same opinion’ as someone else carry
different meanings.

55. Does Messrs. sunshine caterers fall under any of the categorizations made under sub-
points 2, (a), (b), or (c ) under point 2 of annexure 1?

Ans: No.

56. Are sunshine caterers local or non-local suppliers?

Ans: Local.

57. As per sub-point 5, under section 1, annex 1. This provision is not mandatory and given
that sunshine caterers have not submitted a pre-bid query. Does this preclude them from
being able to make a consequent representation on the alteration of sum? Does requesting
additional sums of money classify as a commercial condition (rise in prices)?

Ans: They attended the pre-bid conference.

58. As per point 6, under section 1, annex 1, did sunshine caterers submit a manual bid, or
an electronic bid?

Ans: Electronic bid.

59. Have sunshine caterers furnished form 7 and 8 as stipulated in sub-points 4 and 5 of
point 6 under section 1 annex 1?

Ans: Yes.

60. As under point 8, section 1, annex 1, enlisting the rights of the procuring entity. Do
these rights override the terms and conditions laid down by Sunshine Caterers in their
acceptance reply? If there are contradictory terms and conditions provided by the two
parties, which assumes superseding importance in case of a breach?

Ans: This is a matter of doctrine and application of principles of contract law. Cannot answer this
question, please do your research on the legal rules.

61. As under section 2, sub-clause titled ‘undue profiteering’ under point 2, ‘bid prices,
taxes and duties.’ Was the revised pricing of walnuts in accordance with the controlled
price of walnuts? Does the standard of controlled pricing change when inflationary and
price rising pressures exist in the market?

Ans: The question is unclear. First, there is no controlled price in relation to walnuts. Sunshine
procures raw materials from the market. Controlled prices refer to a price fixed by the government
for specific products. The facts of the proposition do not indicate controlled pricing for walnuts.
The rise in the price of walnuts was due to market economy factors.