TMI Blog2018 (5) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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: “No deviations will be accepted”. There is no case for the petitioners that there is any deviation on the part of the 3rd respondent from the Instructions to Bidders, special conditions of contract or general conditions of contract. So far as Clause B.04 is concerned, it is a flexible condition. Even assuming that petitioner is not having a location within the Electrical Circle, that will not in any manner interferes with the conditions incorporated thereunder. The impracticability of Clause B.20 regarding tax, put forth by the petitioners cannot be legally sustained since a clear method is worked out in the special conditions of contract. The petitioners could not make out any case of arbitrariness, illegality, malafides or unfai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purchase of the raw-materials shall be adjusted towards GST payable at the time of sale of Poles and net amount shall be paid to the Government. So also, the input tax credit varies from time to time based on the cost of raw-materials. It was highlighting the said aspect, Ext.P2 letter was issued. However, without hearing the petitioner, the Board issued Ext.P4 corrigendum dated 19.10.2017, informing that, no change in the clauses of tender documents is necessary. 3. It is the case of the petitioner that, as evident from Ext.P4 corrigendum, there is no change either in the general conditions of contract or in the special conditions of contract. All the tenderers have therefore to strictly comply with each and every conditions in the tender document. The tender document al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;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 is stated that, the writ petition is not maintainable, since as per the special conditions of contract, petitioner has agreed to approach the civil courts at Thiruvananthapuram in the event of disputes arising pertaining to the contract. Therefore, according to the said respondents, the writ petition is not maintainable under law. The averments contained in various paragraphs with respect to Clause No.B.20 'Taxes', of Ext.P3 special conditions of contract and the violation of the general conditions of contract and the issue with respect to the qualification of the 3rd respondent are all denied by the said respondents. According to the respondents, Clause B.20 is formulated in order to specify fair, logical and transparent conditions to suit thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 reduced from 28% to 18% and these things will definitely establish that the GST rate could not be followed correctly at the time of submission of the bids, and therefore, Clause B.20 of the special conditions of contract is totally illegal and is detrimental to the tender conditions. 10. I have heard Sri. Ramesh Chander M., learned Senior Counsel appearing for the petitioners in W.P.(C) No.1112 of 2018 and Shri. K. Jaju Babu, learned Senior Counsel for the petitioner in W.P.(C) No.2450 of 2018 and the other Advocates appearing for the petitioners in the other writ petitions, Sri. Raju Joseph, learned Senior Counsel appearing for respondents 1 and 2 and also the learned counsel appearing for the 3rd respondent. Perused the documents on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 afore-specified contentions, has also submitted that the 3rd respondent is not having a yard within the Electrical Circle concerned and therefore, the same is violative of clause B.04 of Section-B of special conditions of contract. 15. On the other hand, learned Senior Counsel appearing for respondents 1 and 2 submitted that, the imperative conditions in the notice inviting bid as well as the general conditions of contract and special conditions of contract are not violated by the 3rd respondent. The instructions were issued for quoting the price in accordance with the terms and conditions of the notice inviting tender. It was specifically mentioned that the price cannot be quoted anywhere else other than in the specified plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: No deviations will be accepted . There is no case for the petitioners that there is any deviation on the part of the 3rd respondent from the Instructions to Bidders, special conditions of contract or general conditions of contract. 19. So also, Clause B.04 of Section-B of special conditions of contract stipulates as follows: The contractor shall set up a yard having sufficient capacity and with all the required facilities for manufacturing 8m and 9m poles, at a suitable location, preferably within the Electrical Circle concerned. Necessary casting beds, structures, moulds, curing tanks, testing yard etc. shall also be made available in the pole casting yard. All facilities shall be provided by the contractor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 monthly target/allocation) at the rates applicable for the actual month of supply. Price variation for the monthly supply in excess of the monthly target to meet the quarterly target will be applicable at the rate of actual month of supply or scheduled month of supply (within the quarter), whichever is lower. Price variation will be given for the excess poles supplied in a quarter (poles supplied in excess of quarterly target) at the rates applicable for the actual month of supply, only if the supply is made as per the written allocation given by the respective consignees of the Electrical Circles. The shortfall of poles in a quarter need not be adjusted back from the supply o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 226 of the Constitution of India. This is also a very settled legal position. Moreover, it is a commercial contract and the master of the contract is at liberty to enjoy reasonable flexibility in choosing its partner, taking also into account the price bid in the larger public interest, which may not in any manner interferes with the fundamental rights guaranteed under Part III of the Constitution. There is also no fundamental breach of any terms and conditions of the bid document, which thus also means there is no breach of sufficient gravity justifying interference. I have already pointed out that in all other writ petitions, similar contentions are raised, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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