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TMI Blog2018 (5) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2nd respondent, petitioner has submitted the bid. After the tenderers submitted their E-tender, petitioner could gather from the E-tender submitted by the 3rd respondent that it has blatantly violated the conditions stipulated in the tender document. Pursuant to the notification, a pre-bid meeting was convened on 10.10.2017. Before the pre-bid meeting, petitioner issued a communication to the 2nd respondent dated 07.10.2017, evident from Ext.P2. In Ext.P2, petitioner brought to the notice of the authorities that there is an anomaly with respect to clause "B.20 Taxes" in the special conditions of contract. The Special Conditions of Contract is produced as Ext.P3. It is also brought to the notice of respondents 1 and 2 that, if the said clause is not varied, it may create hurdle on bill processing, for the reason that, for the manufacture of pre stress concrete poles, the rawmaterials required are cement, steel, coarse aggregates and fine aggregates. When the petitioner sells the PSC Poles to the Board, then GST is imposed, which is known as output GST. When the raw-materials are purchased, there is input credit of GST. However, the GST incurred by the petitioner at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial bid. It is thus seeking the following reliefs, the writ petition is filed: "i) Issue a writ of mandamus or other appropriate writ order or direction directing or compelling the respondents 1 and 2 to disqualify the 3rd respondent from participating further in the tender process pursuant to Ext.P1 notification. ii) Issue a writ of prohibition restraining or forbearing the respondents 1 and 2 from opening the price bid submitted by the 3rd respondent with respect to tender pursuant to Ext.P1 notification. iii) Issue a writ of certiorari or other appropriate writ order or direction quashing the original of Ext.P9 in so far as pre-qualifies the 3rd respondent pursuant to Ext.P1 tender notice. iv) To grant such other relief which this Hon'ble Court may deem fit under these circumstances." 6. Petitioner has also produced additional documents along with I.A.No.952 of 2018 to show that the 3rd respondent is qualified by the respondents in spite of the illegalities committed by the 3rd respondent. 7. A detailed counter affidavit is filed by respondents 1 and 2, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is finalized, as per the above stated price bids, the respondents who are an agency or instrumentality of the State, will be benefited to the tune of Rs. 7.23 Crores. According to the respondents, the said amount is arrived at based on the difference in rates quoted by the 3rd respondent and the 2nd lowest, and where 3rd respondent is the L1 after taking into consideration the difference in amount wherever 3rd respondent is the L2, evident from Ext. R1(b). Therefore, according to the respondents, petitioners have not made out any case in order to secure the reliefs sought for in the writ petition. It is also submitted that, since the other writ petitions are of typical nature, the contentions raised in the counter affidavit shall also be treated as one filed against the other writ petitions also. 9. A reply affidavit is filed by the petitioners refuting the allegations and claims and demands raised by the respondents and have also produced Exts.P11 to P16. Apart from reiterating the stand adopted in the writ petition, it is also submitted that, after the invitation of the tender, the price of the raw-materials have changed considerably, and so also the GST rate of PSC Poles is red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 14 of Section-A (Bid specifications Part-II, Instruction to Bidders), the indication of price anywhere else other than in price bid (BOQ) will render the tender invalid and will be liable to be rejected. Therefore, according to the learned Senior Counsel, Ext.P7 enclosure produced along with the bid is violative of clause 14. It is also the case of the learned Senior Counsel that, as per clause 15 of Section-A, conditional offers are liable to be rejected, and therefore, the bid submitted by the 3rd respondent ought to have been rejected by the Board. Other arguments are also advanced in tune with the pleadings made in the writ petition. 13. Yet another contention advanced is that, the 3rd respondent does not have sufficient water tanks for water dipped curing of poles as per the specification of KSEB Ltd., except one small tank they have constructed recently to satisfy the pre-qualification condition. That apart, it is contended that, the 3rd respondent is not having sufficient 9M mould to manufacture the poles which adhere to the specifications of KSEB Ltd. with 200 kg working load. 14. Learned Senior Counsel appearing in W.P.(C) No.2450 of 2018, apart from addressing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the purchaser". This clause shows that, even if any communication is issued by any of the bidders over and above the bid document, the same will not be applicable to the contract, which thus also means, respondents 1 and 2 are entitled to ignore any communication so issued by any bidder. Therefore, it is clear that, even if Ext.P7 is issued by the 3rd respondent, that will not have any bearing or implication with respect to the terms and conditions of the contract, and respondents 1 and 2 are entitled to overlook the same and consider the bid submitted by the respective parties. 18. Clause 14 of Section-A stipulated that: "The indication of price anywhere else other than in the price bid (BOQ) will render the bid invalid and will be liable to be rejected". Therefore, the said stipulations are also specific and clear to the effect that, what is prohibited is indication of price anywhere else other than in the price bid. Therefore, merely Ext.P7 communication is issued by the 3rd respondent, "that the effect of GST credit to be availed has been taken in account in the quoted price" will not in any manner interferes with clauses 14 and 15 of Section-A. Clause 21 stipulates that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions incorporated thereunder. However, it is pointed out by learned Senior Counsel for respondents 1 and 2 that, already the 3rd respondent is making arrangements for the yard within the Electrical Circle concerned, and moreover, it is a subject matter to be considered after the award of the bid. So far as Clause B.20 in respect of tax is concerned, the contention advanced is that, due to variation of GST rate, the said condition can never be put into practice. However, under Clause B.42 of the Special Conditions, Price Variation is dealt with, which read thus: "B.42 PRICE VARIATION. Prices will be re-fixed every month, starting from the actual date of commencement of supply of poles, provided there is a variation in the average cost of cement, sand, coarse aggregate and diesel and average values of Whole Sale Price Index Number for Manufacture of Basic Metals (published by IEEMA) and Consumer Price Index Number (published by the Department of Economics and Statistics) during the month under consideration, from its values on the due date of tender. Price variation will be given for the poles supplied as per the monthly delivery schedule (monthly supply less than or equal to mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the petitioners on that account, especially due to the fact that such a course of action adopted by the 3rd respondent is not egregiously violative of the tender conditions. 23. When this writ petition came up for admission, an interim order was passed by this Court that the finalization of the tender proceedings shall be made only after securing further orders from this Court. During the pendency of the writ petition, the price bids were opened, and it is pointed out by respondents 1 and 2 that the price difference is more than Rs. 7 crores, even though the same is disputed by the petitioners. However, there is no case for the petitioners that, the 3rd respondent is not the lowest bidder with respect to certain regions. 24. Taking into account the sum and substance of the contentions made above, the various provisions of the Instructions, Special Conditions and the General Conditions of contract, I am of the considered opinion that, petitioners could not make out any case of arbitrariness, illegality, malafides or unfairness so blatant and patent, so as to interfere with the evaluation made by the 1st and 2nd respondents with respect to the successful bidder, under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X
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