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2. The parties had entered into an agreement for construction of a stretch of the National Highway widening/road laying contract, i.e. widening of 4/6 lanes and strengthening of existing 2 lane carriageway of NH-5 in the State of Orissa from Km 284.000 to 338.000. The agreement was entered into between the parties on 28.08.2001. The dispute which led to the impugned judgment related to the award by the Tribunal on 07.01.2017.
3. The Tribunal had concluded, upon consideration of the rival submission and the evidence on the record, by majority, that the NHAI's denial of the contractor's claim for 150 mm thick layer as GSB drainage layer called for a varied rate. Before the Tribunal, the claimant contended that neither at the stage of the bid nor at the stage when the contract was concluded was it ever disclosed in the BOQ whether the layer was intended to serve as drainage layer. It is urged by the claimant/contractor that much after the conclusion of contract which means that considerably after the bid had been accepted based upon the existing standards, the NHAI indicated in the Good for Construction drawing that a particular stretch or stretches were intended to serve as drainage layer(s). It was submitted that the BOQ clause in this regard, which was sought to be pressed into service by NHAI to say that the rates were inclusive, reads as follows:
"AT's Observations & Findings Claim No. I :

5.1 AT observes that BOQ item 3.01 covers complete work of GSB. The item's description in BOQ embodies reference to Grading 1 of Table 400.1 which conveys that bidding party had to quote keeping in view the contents of Grading I of Table 400.1, specifically referred in the BOQ and not any other table of grading. Although General Technical Specifications and Supplementary Technical Specifications and Amendments/ Modifications/Additions thereto are binding on Claimant but BOQ item 3.01 is for "Constructing Granular Subbase (GSB)using crushed stone aggregate only conforming to Grading I of Table 400-1 complete as per Drawing and Technical Specifications clause 401".

Stipulation in sub clause 1.1.4 of the Preamble to the Technical Specification will be relevant only in case of ambiguity in the description of BQQ vis-a-vis drawing but there is no such ambiguity. Similarly Sub-clause 5.2.1 regarding interpretation of ambiguities referred by Respondent is not applicable.

As such, a new rate needs to be derived in terms of the contract for the work done by Claimant as per table 400.1A for the lower layer of GSB. Claimant has claimed vide letter no. PCL/SJV/1502/2005 dated 18.1 1.2005 a rate of Rs.1102/- per Cu.m. based on the rate analysis enclosed. Further, rate analysis in support of Rs. 1102/- adopted for drainage layer (Ex C-12) was also submitted by Claimant vide Appendices 4 and 5 along with supporting documents. The Respondent, vide his letter no. NHA1/P1U/BAM/85/ORV11/20I0/714 dated 14-05- 2010, submitted a rate of Rs.436/- per Cu.m. for GSB as per table 400.1 A and that too five years after receipt of the Claimant's rate analysis. The analysis submitted by the Respondent vide Annexure 3 to the letter dated 14-05-2010 is based on DPR, which is not forming part of the Contract. Hence the rate of Rs.436/- can not be taken as authentic."

6. The NHAI applied for setting aside the award. The learned Single Judge rejected its arguments on this score, holding as follows:

"28. Turning to the merits, a careful perusal of BOQ 3.01 reveals that it talks of GSB having to conform to Grade I of Table 400.1 and Clause 401 of the TS. BOQ Item 3.01 makes no mention of the GSB having a drainage layer. It is not possible to draw an 'inference' that the construction of a drainage layer of the GSB was deemed to form part of BOQ 3.01. Although learned counsel for the NHAI sought to argue that the drawing submitted at the prebid stage showed a separate drainage layer, this was denied by counsel for the Respondent. In fact NHAI was unable to make good such assertion even before the AT. The factual finding in this regard returned by the AT, and which has been unable to be shown to be erroneous by the NHAI, is that the requirement for construction of drainage layer was indicated only at the stage of submission by the NHAI of the 'good for construction' drawings. The deeming Clause 1.1.4 thus did not get attracted. The Court is unable to find any legal infirmity in the conclusion of the majority that the construction of the drainage layer of the GSB was a varied item of work which was not provided for in BOQ Item 3.01."