Calcutta High Court (Appellete Side)
Ambey Mining Private Limited vs Damodar Valley Corporation And Others on 9 October, 2013
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 9.10.2013(95)
m.d.
W.P. 32504(W) of 2013 Ambey Mining Private Limited
-Vs-
Damodar Valley Corporation and others Mr. S.N. Mukherjee Mr. Kishore Datta Mr. Ratnanko Banerjee Mr. Shiladitya Banerjee .. for the petitioner Mr. Joydeep Kar Mr. Subir Pal .. for DVC (power not supplied) Despite a seemingly credible case of a cartel being evident from the representation made by the petitioner to the Damodar Valley Corporation, the only submission made on behalf of the Damodar Valley Corporation is that the matter has been dealt with by the Supreme Court; as if upon such assertion this Court in exercise of its jurisdiction under Article 226 of the Constitution is denuded of its authority to entertain the matter.
The petitioner participated in one or more of the bids invited by the Damodar Valley Corporation for removal of fly ash from the several power plants of such Corporation. Previous petitions have also been carried to this Court on the allegation in that DVC had been particularly favourably 2 inclined towards one of the contractors at the behest of some politician.
It appears that at least one previous petition which was filed in this Court has been transferred to the Supreme Court and an order has been passed by the Supreme Court on September 24, 2013 to the effect that the Corporation would negotiate with the bidders "by inviting all the bidders who have responded to the NIT dated 15th July, 2013 for negotiations and allot the contract to the bidder who offers the lowest rate for transportation." The order also provides that " the allotment would be made in the ratio of 60:40 between L-1 and L-2 after negotiations as per the tender conditions."
Clause 1.5 of the tender documents provides for prevention of cartel formation. Sub-clause (a), in its opening limb, provides, inter alia, as follows:
"a. Whenever all or most of the Firms/tenderers quote equal/same rates for similar works & cartel formation is suspected....."
The petitioner company has written to the Corporation on September 26, 2013, furnishing the details of the bids made by BLA Projects Limited and by Ramlal Agarwala. There is a categorical assertion in the letter that these two bidders had formed a cartel. In support of such 3 assertion, the rates quoted for various items of work at the Chandrapura Thermal Power Station, at the Mejia Thermal Power Station, at the Bokaro Power Station and at the Durgapur Thermal Power Station have been detailed.
It is evident that for item no.1 pertaining to Chandrapura Thermal Power Station that both BLA Projects and Ramlal Agarwala have quoted the identical 129.26; for item no. 2 pertaining to the same power plant the quotation is 3.15 in either case; for item no.3 of the same power plant the quotation is 119.35; for item no. 4(i) the quotation is 224.02 and identical rates have been quoted under the several heads in respect of item no. 4(ii). For Mejia Thermal Power Station both BLA Projects and Ramlal Agarwala have quoted 7.9% above the estimated cost. For Bokaro Thermal Power Station BLA Projects have quoted a unit rate of 119.03 and Ramlal Agarwala has quoted 119.05 in respect of item no.1. In respect of item no.2 both have quoted 3.11. In respect of item no.3 BLA Projects has quoted 120 and Ramlal Agarwala has quoted 121. The similarity in the quotations pertaining to the other individual items cannot be missed. In the Durgapur Thermal Power Stations BLA Projects has quoted 7.59% below the estimated cost and Ramlal Agarwala has bid 7.60% below the estimated cost.
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The figures quoted by the various bidders are available in Court and Advocate for the Corporation has verified at least four or five cases and has not found the assertions in the letter of September 26, 2013 to be at variance with the quotations submitted by such bidders. In such circumstances, it is alarming that it did not occur to DVC that BLA Projects Limited and Ramlal Agarwala may have formed a cartel to submit identical or nearly identical rates in respect of the various works.
It is distressing to note that in seeking to refer to the Supreme Court order and the 60:40 ratio that such order provides for, the similarity in the bids of BLA Projects and Ramlal Agarwala has been attempted to be glossed over by the Corporation. If the two bids in most cases are the lowest, the entirety of the work (in terms of 60:40 ratio) would have to be allotted to these bidders without the Corporation being in the least concerned with the announcement in its tender documents that there would be a presumption of a cartel upon equal or similar rates being observed.
This order is made ex parte as against BLA Projects and Ramlal Agarwala since only an attempt of service had been made, but the petition may not have been served on such parties.
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In view of it being, prima facie, apparent that the Damodar Valley Corporation has failed to recognise the story behind the identical or nearly identical quotations put in by BLA Projects Limited and Ramlal Agarwala, the Corporation is directed to first deal with the representation of the petitioner company herein as contained in its letter dated September 26, 2013 before taking any steps to issue any work order in favour of any bidder. The Chairman of Damodar Valley Corporation will respond to the representation of September 26, 2013 addressed to such official by the petitioner. It is only if upon the representation being dealt with and the suspension of a cartel between BLA Projects Limited and Ramlal Agarwala being dispelled, that the bids of such bidders can be considered by the Corporation.
Let the matter appear on November 07, 2013. Certified website copies of this order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.) 6