Indian Kanoon - Search engine for Indian Law

2. The dispute in the present petition concerns the construction of a granular sub-base („GSB‟) as described in bill of quantities („BOQ‟) 3.01. The said BOQ item reads as under:

"Constructing Granular Sub-base (GSB) using crushed stone aggregate only conforming to Grading 1 of Table 400-1 complete as per Drawing and Technical Specifications Clause

401."

3. The bid tendered by the Respondent consisted of technical specifications („TS‟) as well as supplementary TS. TS 401 referred to in the above BOQ reads as under:

"The material to be used for the work shall be crushed stone, aggregate, natural sand, gravel or combination thereof depending upon the grading required. Use of Moorum for GSB either alone or in combination shall NOT be allowed. The material shall be free from organic or other deleterious constituents and conform to the Grading1 given in Table 400-

1."

Add the following as the third paragraph of clause 401.2.1. Where the layer is intended to serve as a drainage layer in addition to being a part of the structural pavement the material must satisfy drainage criteria. For such requirement, material passing sieve 2.36 mm and down should be as per Table 400.1.A."

4. Table 400.1.A sets out the specifications for the drainage layer of the GSB.

5. In addition to the above, the general conditions of contract („GCC‟) and special conditions of contract („SCC‟) and the Conditions of Particular Application („COPA‟) also formed part of the CA.

6. Clause 1.1.4 of the preamble of the TS states: "should there be any detail of construction or materials which has not been referred to in the Specifications or the Bill of Quantities and Drawings but the necessity for which may be implied or inferred therefrom or which is usual or essential to the completion of the work in the trades then the same shall be deemed to be included in the rates and prices entered by the Contractor in the BOQ."

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 pre- bid 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.