Madhya Pradesh High Court
Compact Security Services,Regional ... vs N.H.D.C.Limited (Narmada Hydro ... on 10 September, 2012
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W.P. No. 14128/2012
10.9.2012
Shri K.N. Fakhruddin, learned counsel for the
petitioner.
Heard.
Aggrieved by insertion of eligibility criteria in the NIT
No.NHDC/3/C/101/12/1451 dated 31.7.2012 for
"Maintenance Work of ElectroMechanical and Hydro
Mechanical equipments and other associated equipment of
Power House, Switch Yard and Dam", the petitioner on the
allegations that the same is arbitrary, unjust, mala fide and
with an intention to remove/eliminate petitioner from
participating, seeks quashment of the same vide this writ
petition.
2. That, Narmada Hydro Electric Development Corporation
Limited (NHDC) for its Omkareshwar Power Station,
Siddhwarkut, District Khandwa invited tenders for
maintenance work of electromechanical and hydro
mechanical equipments and other associated equipment of
powerhouse, Switch Yard and Dam vide NIT No.
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NHDC/3/C/101/12/1451 dt. 31.7.2012. The eligibility criteria
vide clause 4 of the NIT being:
"4. Eligibility Criteria:
(A) Experience of having successfully completed
similar works during last 7 years ending last day of
month previous to the one in which application
are invited should be either of the following [copy
of letter of award must be enclosed with
completion certificate].
Three similar or two similar or one similar
completed works consisting not less than Rs.58.12
Lakh or Rs.72.65 Lakh of Rs.116.24 Lakh each
respectively.
Similar works means:
i) Erection of Hydrogenerator/Capital
Maintenance i.e. Complete dismantling & re
erection, testing & commissioning of Hydro
generator/Repair & maintenance of Stator,
Rotor & rotor Pole, Governing system
Excitation system, 220 kv Switchyard
equipments of Generating unit capacity not
less than 40 MW including Hydromechanical
Equipments.
(B) Average annual financial turnover during last 3
years ending 31st March of the previous financial
year should be at least Rs.43.59 Lakh.
(C) Tenderer should have valid Registration as an
Electrical Contractor, PAN and EPF registration."
3. That, by corrigendum No. 1 dated 22.8.2012 (Annexure
P1A) the expression "similar work means" has been amended
with the following:
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"Erection of Hydrogenerator/Capital Maintenance i.e.
Complete dismantling & reerection testing &
commissioning of Hydro generator/Repair &
maintenance of Stator, Rotor & rotor pole Governing
system, Excitation system, 220 kv Switchyard
equipments of Generating unit capacity not less than
40 MW including Hydromechanical Equipments."
4. The petitioner, claiming that having worked with
respondent for over five years in operation and Maintenance
work of electromechanical and hydromechanical equipments and other associated equipment of Power House, Switchyard and Dam and though eligible alleges that the "Similar work" as nomenclatured experience qua Erection of Hydrogenerator/Capital Maintenance i.e. Complete dismantling & reerection testing & commissioning of Hydro generator/Repair has been inserted with an intention to eliminate the petitioner from competing. It is urged that the insertion of criteria besides being arbitrary and unjust has no nexus with the work for which NIT is issued. To substantiate, learned counsel has placed reliance on Section IV of Information And Instruction for Tenderers which deals with the scope of work.
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5. We find that for Maintenance of Electromechanical Equipments of Power House And Switchyard, the scope of work includes:
"carry out attending Repairs, Scheduled, Predictive, Preventive and Breakdown Maintenance of 8 x 65 MW Turbine Generator sets (Francis Turbine) & its Auxiliaries, 220 KV Switchyard Equipments & its Auxiliaries, Fire, Safety Systems, and other associated equipments with maintaining Cleanliness & safety of Plants/ Equipments at Omkareshwar Power Station, Siddhwarkut Distt Khandwa (MP).The scope also includes the maintenance and trouble shooting works as per Manufacturer' operation & Maintenance Manual guide line and as per instruction of Engineer in charge. The Preventive and Breakdown Maintenance activity to be started up in shortest time as per direction of EngineerInCharge, to shorten the breakdown time and the make the machines / system available for operation.
Contractor has to maintain cleanliness of the plant and equipments during contractual period with due importance to all safety like Electrical safety, Fire safety and General Security of the Work place. Along with above all work, repair/maintenance and trouble shooting of the following Plant/equipments is also the part of the Scope of work:5
i.) Turbine Generator Set & its auxiliaries which includes H.S. Pumps, & Governing pumps, Brakes & Jack system, Cooling Water Pumps / Motors and their auxiliaries, Air compressors & related pipe lines, valves, filter etc. A/C Plant / machines, Air blower & ducts, Fire fighting systems, etc. ii.) Drainage & Dewatering pumps & its system.
iii.) All Electrical panels, Wiring in control room & in plant area.
iv.) D.C. Batteries 220V, 48V Batteries & their chargers including DCDB, other D.C. Distribution Boards, Invertors etc. v.) Lighting illumination in Power House, Switchyard & Dam area.
vi.) Generator Transformer, Unit Auxiliary Transformer, Station Service Transformers, Excitation Transformers & its auxiliaries & Control instruments.
vii.) All Communication System, EPABX, Loud Speakers, Public Address system, Land Line Phones etc. viii.) Operation & Day to day maintenance work of 145/30/10 Tones 2 Nos. E.O.T Cranes and, 1 No. Unloading E.O.T. Crane of 80/20/10 Tones.6
ix.) Operation & Day to day maintenance work of Power House Oil filtration & Handling System.
x.) Air Compressor, blowers & related panels.
xi.) LT Panels board, 11 KV Panels, Local Control Units, Control Room equipments etc. xii.) CO2 gas, Water & Emulsifiers Fire Fighting System.
xiii.) Gen. Circuit breaker, CTs, C.V.T's, L.A's, Isolators, SF6 equipment and all other equipment of 220 KV Switchyard, Link line etc. xiv.) Airconditioning, dehumidification & Ventilation plant and its associated piping and equipments.
xv.) Fire & Security system.
xvi.) Cleaning of equipments in Power House & Switchyard area.
For above activities, Contractor has to deploy fully conversant staff for trouble free maintenance. However, the equipments, which are not specifically stated here and are part of the hydropower house Complex & 220 KV Switchyard, are also covered under this contract and contractor has to deploy experienced & conversant staff for these equipments as per the direction of EngineerInCharge."7
6. Whereas, for Maintenace of Hydro Mechanical Equipments At Dam, Power Dam and Power House, the scope of work includes.
"carry out scheduled, Preventive, Predictive, Breakdown Maintenance, Repairs and operation of following equipments to keep equipments in healthy and good working condition with maintaining cleanliness & safety of Plants/ Equipments at Omkareshwar Power Station, Siddhwarkut Distt Khandwa (MP). The scope also includes the maintenance and trouble shooting works as per Manufacturer' operation & Maintenance Manual guide line and as per instruction of Engineer in charge. The Preventive and Breakdown Maintenance activity to be started up in shortest time as per direction of Engineer In Charge, to shorten the breakdown time and the make the machines / system available for operation.
Contractor has to maintain cleanliness of the plant and equipments during contractual period with due importance to all safety like Electrical safety, Fire safety and General Security of the Work place. Along with above all work, repair / maintenance and trouble shooting of the following Plant / equipments is also the part of the Scope of work.8
1. 23 nos. selfclosing Spillway Radial Gates of size 20.00 M (w) x 18.037 M (h) and radius 21.0 M. The each Radial gate is consisting of skin plate of nine gate elements welded together four arms, two connecting beams, two trunnion assemblies and two cylinder support beams. The approximate structural weight of each complete gate is 220 MT. The gates are operated by hydraulic hoisting system consisting of two nos. hydraulic cylinders of capacity 240 T, a control panel and a power pack for each gate.
2. Three sets of spillway stop log used for maintenance of spillway radial gates. Each set of stop log consists of seven elements, one no bottom element of size 20.00 M (w) x 2.035 M (h) and six nos. interchangeable element of size. 20.00 M (w) x 2.965 M (h).
3. Maintenance of common Drainage system for leakage etc. provided in the Dam gallery consists of a drainage sump and continuous duty submersible pumps of various sizes with suitable water level switches (Float Type) for auto starting & stopping of pumps. One another drainage system near generating unit8 with submersible pump with suitable water level switches (Float Type) for auto starting & stopping of pumps 9 located on Drainage sump for discharge of power house upside water.
4. 8 nos. Intake gates each of size 8.39 M (w) x 8.573 M (h) for regulating the water through penstock for eight generating units. Intake gates are operated by 125 T capacity hydraulic cylinders mounted on the top of the respective gates grooves at Intake structure and driven by individual power packs and control panel.
5. 8 nos. Draft tube gates each of size 8.545 M (w) x 6.483 M (h) for separating the hydro turbines from tail pool during maintenance period.
6. Two sets of intake bulkhead gate of size 8.15 M (w) x 9.429 M (h) provided for generalpurpose maintenance of intake gates and penstock.
7. One Trash Rash Cleaning Machine provided for removing trash entrapped in the trash rack panels of intake structure.
8. One 1000 KVA transformer installed at Dam Control Room providing Power supply for all HM equipments except for DT gates & its hoists and Dam Distribution Board installed in DCR.
9. Hydraulic pipelines, Power packs, local control panels, remote control panels, LT distribution boards etc. 10
10. All splicejoints of gate elements, rubber seals, guide shoes, roller assembly of intake gates, sliding arrangements of draft tube gates, spillway stop log gates etc. from time to time.
11. Greasing and lubrication as required (Grease and Lubricants to be supplied by NHDC).
12. Touch up painting of the equipment as per requirement (Paint & primer to be supplied by NHDC).
13. Contractor has to maintain upto date record of all maintenance activities and submit the same to engineerincharge.
14. One 75 T capacity cantilever type spillway stoplog Gantry Crane, One 60 MT Gantry crane mounted on transformer deck for operation of Draft Tube gates, One 75 T capacity Intake bulkhead Gantry Crane, Trash Rack Cleaning Machine.
(b) Tools & plants : Contractor will provide all general tools like all types of ratchets (Below 32mm size) Gas cutting set including minimum requirement as given in Annexure 1.
(c) Consumables :Contractor will provide consumables like cleaning cloth, grinding wheel, cutting wheel, acetylene, oxygen as per requirement etc. including minimum requirement as given in Annexure - 2.11
(d) Safety articles : All safety articles such as Safety belts, Safety helmets, safety shoes, Proper uniform, dangri, Hand gloves, welding cutting Glasses etc. will be arranged by Contractor for the work. A list of minimum requirement is given in Annexure3.
(e) Deployment of manpower : Contractor has to deploy minimum 24 Nos. well qualified / experienced as per Clause 2.0'Experience & Qualification Criteria' fully conversant with the hydromechanical systems of power plant and shall be capable to trouble shoot the systems & rectification of defects, shall be kept available at site for above work, however as per the direction of engineer in charge (considering requirement of the work) any or all of the above mentioned staff may be required at any time round the clock or in shift/General duties. Round the clock means all the manpower (24 Nos.) will perform the normal duty in General shift / other shift duty except Sunday/any other weekly off day and NHDC's designated holidays. But in case of emergency / breakdown the required manpower will be made available any day/any time. The above manpower are tentative which may increase or decrease as per job requirements and direction of engineerincharge.12
Any left out activity not specifically mentioned above shall be considered as a part of scope of work, if required for satisfactory maintenance of equipments as a whole as per direction of engineerincharge. Note: Above all works does not include such maintenance work which requires services of OEM & other experts services.
7. From the above nature of work which a contractor is required to perform we are not much impressed with the contentions of learned counsel for the petitioner that the eligibility criteria qua "Similar work", i.e. Erection of Hydrogenerator/Capital Maintenance i.e. Complete dismantling & reerection testing & commissioning of Hydro generator/Repair has no nexus with the scope of work. Rather, the petitioner has utterly failed to establish that there is no nexus.
8. On the contrary, the work in question being of highly technical nature and with passage of time and the experience gained, if it appear to the employer to have contractor with expertise who would be able to handle which includes Erection of Hydrogenerator/Capital Maintenance i.e. Complete dismantling & reerection testing & commissioning of Hydro 13 generator/Repair and make the maintenance hassle free, with such skill, it is within his discretion to introduce the condition to achieve the object. That is what has been aimed at in the case at hand by inserting the expertise which the prospective contractor must have for 'maintenance work of electro mechanical and hydromechanical equipments and other associated equipment of Power House, Switch Yard and Dam.
9. In Directorate of Education and others v. Educomp Datamatics Ltd and others : (AIR 2004 SC 1962), after analyzing the decisions in Air India Ltd. v. Cochin International Airport Ltd. and others : (AIR 2000 SC 801), M/s. Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others (AIR 2000 SC 2272) and Tata Cellular v. Union of India (AIR 1996 SC 11), it was observed by their Lordships:
"12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an 14 administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide."
10. That, merely because the petitioner has worked for few years with the respondent and that there is no prior notice before introducing the clause in question will not be a bar in introducing the specific criteria to be eligible for the tender in question by the respondents.
11. In view whereof we hold that, the impugned eligibility condition is neither arbitrary, nor unjust. Nor the same has been demonstrated to have been inserted with mala fide intention (merely because the petitioner lacks the expertise it cannot be presumed, in absence of cogent material that the same has been introduced with mala fide intention). Neither 15 has it been established that it has no nexus with the work in question.
12. There being no substance in the challenge, no interference is caused. In the result petition fails and is dismissed. No costs.
(AJIT SINGH ) (SANJAY YADAV)
JUDGE JUDGE
VT