A

ll the hard work done in

draftingcontractsbyshrewd
lawyers can come to nought
if thetypist isweakingrammar and
punctuation. In a recent Canadian
casebetweenaphonecompanyand
a television cable firm, one party
lost a million dollar contract
because a comma was put in the
wrongplace. IntheBhopal gascom-
pensation case, crores of rupees
were saved in the nick of time when
a typing mistake was corrected by
the Supreme Court of India.
Such errors have caused litiga-
tion, andthereisanimpressivecase
law on the subject. Spellcheck and
the like in computers have not
improved matters; there could be
repetitive systematic computer
typographical transmissionfailure
as argued in a contractual dispute
in a leading Supreme Court judg-
ment. In order to avoid such foren-
sic snarls, contracts these days
include clauses that try to obviate
disputes over mistakes in arith-
metic, placing of decimal dots, con-
version of currencies and other
snares for the unwary.
Still that seems to be not
enough. In a case decided by the
Delhi High Court last month, there
was one page of legalese in the
instructions for bidders for a rail-
way line but that did not save
Supreme Infrastructure India Ltd
andRail Vikas Nigamfromgoingto
court over an arithmetical error. In
the instructions, there were
detailed provisions on how to deal
withcasual errors but thesebecame
the bone of contention.
SupremeInfra, whosequotation
was the lowest, was caught in a
typo. The unit price did not match
the total price. It argued that there
was no arithmetical error and the
same was a bona fide human error
which occurred on account of
fatigue and tiredness of the person
filling the tender form as a result of
repetitive work. Since it was an
obvious mistake, Rail Vikas Nigam
could not act mechanically and
must act with common sense and
rationalitywhiledecidingthebids,
it was contended.
The government company
countered that bidders were not
entitled to withdraw, substitute or
modify their documents between
the deadline for submission of bids
and the expiration of the period of
bid validity. It pointed out that
there was a clear discrepancy
between the unit rate quoted and
the total price and the rules should
be strictly construed.
However, thecourt acceptedthe
pleas of the private firm, giving five
reasons the mistake was not fatal to
the bid. The bidder cannot change
in the substance the offered prices
but he is permitted to confirm the
correction of arithmetic errors dis-
covered later, the judgment said.
One clause specifically provided
that where the technical bid is sub-
stantially responsive, the employer
shall rectify non-materi-
al, non-conformities
related to the price bid.
The court snubbed
the government firm by
stating that if the
process of evaluation of
bids is to be done so
mechanically as done
in the present case, and
without the use of men-
tal faculties, intellect
and exercise of human discretion,
the exercise could have been left
to be completed by
machines/computers.
A leading Supreme Court case
on this issue is W Bengal SEB vs
Patel Engineering Co. In that case,
the court did not permit correction
of 27 mistakes like the conversion
rate of Indian, Japanese and US
currencies and discrepancy in unit
prices quoted. Thenatureandmag-
nitude of the errors was so huge
that permitting correction would
change the complexion of the bids,
the Supreme Court said.
The US Supreme
Court has set a few
guidelines in such dis-
putes. It stated in the
judgment, Moffet HCCo
vs Rochester, that bids
could be rejected: first,
wherethemistakemight
have been avoided by
the exercise of ordinary
care and diligence on
the part of the bidder; but where
the offeree is deemed to have
knowledge of the mistake, and sec-
ond, where the bidder on discov-
ery of the mistake failed to act
promptly in informing the author-
ity concerned and request for rec-
tification of clerical mistake.
In another US case of tenders,
the typist wrote $400 for $4. The
court stated that only when an
error was patent and the true intent
of the bidder obvious that such an
error might be disregarded. The
error was ordered to be waived.
Printers devils and typing mis-
takes blight legislation, too. In one
casereferringtotheCivil Procedure
Code, Afcons Infrastructure Ltd vs
Cherian, the Supreme Court
remarked that the mix-up of defi-
nitions of the terms judicial settle-
ment and mediation is apparent-
ly due to a clerical or typographical
error in drafting, resulting in two
words being interchanged. The
same law, the court stated in anoth-
er judgment, had mixed up the
phrases, defendants witnesses and
plaintiffs witnesses in the 1976
amendment. These errors are still
on the statute book. Perhaps it
would help if typists in ministries
and law firms are sent to a good
English-Vinglish class.
Tyranny of the typos
Casual errors in tender documents can trigger costly litigation
OUT OF COURT
M J ANTONY
In the Bhopal gas
compensation
case, crores of
rupees were
saved in the nick
of time when a
typing mistake
was corrected by
the Supreme
Court of India