Orissa High Court
Indu Construction vs Director General Of Works, C.P.W.D., ... on 16 January, 2001
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The petitioner, a partnership firm, has challenged the award of the contract relating to Construction of Staff Quarters at Paradeep required to be constructed for Canara Bank. As per the norms, the Central Public Works Department (in short, "C. P. W. D.") issued notice inviting tenders. Three offers were submitted. Out of the three offers, initially C.P.W.D. authorities had selected one H. K. Pradhan, but it subsequently transpired that aforesaid H. K. Pradhan had already withdrawn his offer. Subsequently, the C. P. W. D. awarded the contract to present opposite party No. 6. The aforesaid action is being impugned by the petitioner.
2. The petitioner, opposite party No. 4 and opposite party No. 6 were heard in person as their lawyers abstained from the Court due to boycott call given by the Bar Association. The parties were given enough opportunities to file their written submissions.
3. Though several questions had been raised in the writ petition, at the time of making submission, the petitioner has raised two contentions. It is first contended that after the withdrawal of H. K. Pradhan, the petitioner was the lowest tenderer and as such instead of awarding the contract to opposite party No. 6 on the basis of negotiation, the petitioner should have been awarded the contract and, at any rate, should have been called for negotiation along with opposite party No. 6. The petitioner has contended that at the time of making its offer, it had been categorically stated by the petitioner that it would be prepared to offer a further rebate of 3.5 per cent if it was allowed to utilise cement and rods from the market instead of relying upon the supplies to be made by the Department. The petitioner has submitted that opposite parties 1 to 4 have committed illegality in not accepting this conditional offer of the petitioner which, if accepted, would have made the petitioner the lowest tenderer between petitioner and opposite party No, 6. For the aforesaid purpose, the petitioner has relied upon Paragraph-20. 15. 5. 4 of the Instructions relating to "Receipt of Tenders and their acceptance" as is being followed by the C. P. W. D. . Opposite party No. 4 has also submitted that the aforesaid instruction is applicable and by applying the aforesaid instruction, the petitioner cannot be considered as the lowest tenderer. Since the main contention raised by the petitioner depends upon interpretation of the instruction in Paragraph-20. 15. 5. 4. it is advisable to quote such instruction in full :--
"20. 15. 5. 4. Sometimes a condition may not be mandatory, but it may be in the form of an offer giving a special rebate if certain condition is fulfilled or a facility is given. It is open to the Department to accept or reject such a condition. Normally, such a condition should not be taken into account while determining the lowest tenderer, but while coming to a decision on the tenders, the effect of such a condition given by one of the contractors has to be kept in view if it is to the advantage of Government and the lowest tenderer may be asked during negotiations whether he is prepared to suitably amend his tendered amount, if a similar facility is given to him."
4. A bare perusal of the aforesaid instruction clearly indicates that the Department is not bound to accept such a conditional offer. In fact, it has been indicated in the instruction itself. "... ..Normally, such a condition should not be taken into account while determining the lowest tenderer, but while coming to a decision on the tenders, the effect of such a condition given by one of the contractors has to be kept in view......". It is to be noted that opposite party No. 6 had subsequently offered to reduce if he was allowed to procure cement and rods from the market. In such view of the matter/ the opposite parties were not bound to consider the offer of the petitioner as lower than that of opposite party No. 6.
In this connection, the petitioner has also submitted that in view of the nature and quantity of work to be undertaken, it was impossible for any contractor to complete the work with the amount of materials to be supplied by the Department and as such a contractor was obliged to procure such material from market and that is why petitioner had made such conditional offer. On the basis of materials available on record, it is difficult to accept such a contention of the petitioner. Moreover, as indicated in para graph 20.15.5.4 which is being relied upon by the petitioner, the Department is not obliged to consider such a conditional offer. Bereft of such conditional offer, there cannot be any doubt that the offer given by opposite party No. 6 was lower than that of the petitioner. Moreover, opposite party No. 6 bad also subsequently offered to reduce appropriately if such a condition is to be followed. Keeping in view all these aspects, the first submission of the petitioner that its tender must be considered to be lowest tender cannot be accepted,
5. The petitioner also contended that petitioner and opposite party No, 6 were instructed by opposite party No. 4 to extend the validity of the period of offer for a period of sixty days and pursuant to such instruction, the petitioner had extended the validity of the period for a period of sixty days, whereas opposite party No, 6 had extended the validity for a period of ninety days. It is submitted by the petitioner that from the counter affidavit of opposite parties 1 to 4 it becomes apparent that the offer of the petitioner was not accepted as on the date of consideration of tender, the extended period of sixty days had already expired. This submission, though prima facie attractive, is not worthy of acceptance. From the records produced, it appears that the offer of the petitioner has not been rejected on the ground that the period of its offer had expired. It appears that only at the time of filing counter affidavit such a stand has been taken. Since the offer was not rejected on that ground, the contention does not merit serious consideration. Moreover, even assuming that on such an erroneous ground, the offer was rejected, since it has been found that the initial offer of opposite party No. 6 was lower than the initial offer of the petitioner bereft of the condition attached by the petitioner, the petitioner cannot contend that its offer should have been given precedence.
6. The petitioner submitted that when opposite party No. 6 was called for negotiation, similar opportunity should have been given to the petitioner. Since the offer of opposite party No. 6 was lower than that of the petitioner and since the work has already been awarded and work has commenced, as apparent from the materials produced, it would be futile to give a direction to opposite parties 1 to 4 to open up fresh negotiations, as ultimately such a course may result in escalation of cost.
7. Having regard to all these aspects, I do not find any merit in the writ application, which is accordingly dismissed. There will, however be no order as to costs. All interim orders stand vacated.
8. Writ application dismissed.