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W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 1 of 1
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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
1. W.P(C) No. 2718 of 2011
Petitioners:
1. M/s. Khirud Kumar Bordoloi, A proprietorship firm being represented by its proprietor Sri Khirud Kumar Bordoloi, son of Sri Umesh Chandra Bordoloi, Resident of Sarvodaya Adarsh Gaon, Post Office, Gargaon, District: Sivasager, Assam. 2. M/s. Welldo Enterprise, A proprietorship firm being represented by its authorized signatory Sri Jhantu Das, Son of Sri Jogadish Chandra Das, Resident of Babu Patty, Sivasagar, Post office:Sivasagar, Dist. Sivasagar, Assam. 3. M/s. J.M. Agarwalla & Co., A partnership firm being represented by its partner Sri Sanjay Kumar Jhuria, Son of Late J. M Agarwalla, Resident of B.G. Road, Post office & District: Sivasagar, Assam. 4. M/s. R. L. Agarwalla & Co., A partnership firm being represented by its partner Sri Ranji Lal Agarwall, son of Sri Late Hari Bux Agarwalla, Resident of B.G. Road, Post Office & District: Sivasagar, Assam. 5. M/s. B.K. Gogoi, A proprietorship firm being represented by its proprietor Sri Budhin Kumar Gogoi Son of Late Jagat Gogoi, Care of Madhav Timber. A.T Road, Sivsagar, Post office & District-Sivasagar, Assam. 6. M/S Khagen Gogoi, A Proprietorship firm being represented by its proprietor Sri Khagen Gogoi, Son of Late Indreswa Gogoi, Resident of Solapathar near GGS-1, Post Office : Lakwa, District : Sivasagar, Assam. 7. M/S Ruhini Gogoi, A Proprietorship firm being represented by its proprietor Sri Ruhini Gogoi, Son of
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 2 of 2
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Late Dharmeswar Gogoi, Resident of Mout Gaon, Post Office, Mout Gaon, District :Sivasagar, Assam. 8. M/S Pradip Kr. Dutta, A proprietorship firm being represented by its proprietor Sri Pradip Kumar Dutta, Son of Sri Debenanda Dutta, Resident of Janaki Nagar, Post Office : Dhuliapar, District : Sivasagar, Assam. 9. M/s. Engineering Enterprise, A proprietorship firm being represented by its proprietor Sri Chittaranjan Boruah, Son of Sri Durgeswar Sarmah Bourah, Resident of BOC Gate, Post Office : Duliajan, District : Dibrugarh, Assam. 10. M/s. S. M. Agarwalla, A partnership firm being represented by its partner Sri Sanwarmal Agarwalla, Son of Late H.P. Agarwalla, Resident of Station Road, Post office : Nazira Dist: Saivasagar, Assam. 11. M/s. Gajanand Agarwalla. A proprietorship firm being represented by its partner Sri Gajand Agarwalla, Son of Late Dhiraj Agarwalla, Resident of Singh Doullah Road, Post office & District-Sivasagar, Assam. 12. M/s. Pradip Sharma, A partnership firm being represented by its authorized signatory Sri Diganta Mishra, Resident of Khijnoor Ali Road, Post Office & District Sivasager, Assam. 13. M/s. Kakoti Engineering Works. A partnership firm being represented by its partner Sri R.P. Kakoti, Son of Late Ram Prasad Kakoti, Resident of A.T Road, Post Office & District : Saivasagar, Assam.
14. M/s. Swastik Engineering Works, A proprietorship firm being represented by its proprietor Sri Shiv Bhagwan Agarwalla, Son of Late Hariram Agawalla, Resident of Old Balibat, Jorhat, Post Office & District : Jorhat, Assam.
15. M/s. Santosh Sahewalla, A partnership firm being represented by its partner Shi Santosh Sahewalla, Son of Late Surajmal Sahewalla, Resident of
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 3 of 3
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L.K.B Road, Post office & Dist: Sivasagar, Assam. 16. M/s. Lakwa Construction & Co., A partnership firm being represented by its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High School, District: Sivasagar, Assam.
By Advocate :
Mr. N. Dutta, Senior Advocate, Mr. N.N. B. Choudhury, Advocate, Mr. M. H. Choudhury, Advocate.
Respondents :
1. The Oil and Natural Gas Corporation Ltd. (A Company constituted under the provisions of Indian Companies Act, 1956 having its head office at Jeewan Bharati Tower II, 124 Connought Circus, New Delhi) 2. The Executive Director, ONGC, ERBC, Assam, Asset, Nazira, Post Office : Nazira, District : Sibsagar, Assam. 3. The Group Manager – HMM, ONGCL, ERBC, Assam Asset, Nazira, Post Office : Nazira, Dist. Sivasagar, Assam. 4. The Manager(MM), R.O.B II, ONGCL, Nazira, Post Office; Nazira, District. Sivasagar, Assam. 5. M/s. Salasar Steel Udyog, A.T Road, Sivasagar- 785 640.
6. M/s.B. K. Agarwalla, P.O. Athkhel, Sivasagar, Pin-785 696. 7. M/s. Assam Petroleum Limited, Sundarpur, Bye Lane-1 R.G. Baruah Road, Guwahati-781005. 8. M/s. Lakwa Steel Constriction, T.D Chaliha Road, Amolapatty, Sivasagar-785640.
9. M/s. Jintu Dutta, Phukan Nagar, Kali bari Road, P.O. Sivasagar-785 640.
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 4 of 4
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10. M/s. Kalyan Enterprises, Bolola, Kukurachua Gaon, P.O. Nongalamora, P.S. Nemuguri,Sivasagar. 11. M/s. Assam Equipement & Energy Service Pvt. Ltd., HCB Road, Legal Metrology Office compound, New Amolapatty, Sivasagar-785640. 12. M/s. Rangpur Steel Udyog, B.G Road,Sivasagar-785 640. 13. M/s. Nirmal Kumar Jhuria, B.G.Road, Sivasagar -785 640. 14. M/s. Trije Engineers, F-15, Panch Ratna Complex, NR Jain Char Rasta, Mehsana-2, Gujarat.
15. M/s. DU-Point Engg Works. 15/B, Harinagar Society, NR Jain Temple, Highway, Mehsana-384 002. 16. M/s. Mech Technik (India) Pvt. Ltd. East Pont Tower, Mani Ram Dewan Road, Bamunimaidam, Guwahati -781 021. 17. M/s. J.M. Engineering & Co. Jyoti Nagar, P.O-Parbatpur, Dibrugarh-786 623. 18. M/s. Zeeneel Construction & Maintenance, G-1, Dharmendra Appt., Jona Park Society, Highway, Mehsana – 384 002.
19. M/s. Kakoti Engineering Wroks Pvt. Ltd., A.T. Road,Sivasagar-785 640. By Advocate :
Mr. K. N. Choudhury, Senior Advocate. Mr. N. Anix Singh, Advocate. Mr. J.I. Borbhuia, Advocate.
2. W.P(C) No. 5211 of 2011
Petitioner:
M/s. Zeeneel Construction & Maintenance, A partnership firm, represented by one of its partner Shri Naresh Kumar Chaturbhai Prajapat, having its registered office at G-1, Dharnendra Apartments, Jonapark
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 5 of 5
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Society, Near Gayatri Temple, Highway road, Mehesana, Gujarat, Police Station: Mahesana, PIN – 384002, Gujarat.
By Advocates :
Mr. D. Das, Senior Advocate. Mr. R. Sinha, Advocate. Respondents :
1. The Union of India, Represented by its Secretary, Petroleum Department, New Delhi.
2. The Oil and Natural Gas Corporation Ltd. (A company constituted under the provisions of Indian companies Act, 1956) having its head office at Jeewan Bharati Tower II, 124 connought circus, New Delhi.
3. The Executive Director, ONGC, ERBC, Assam, Asset, Nazira, Post Office: Nazira, District: Sivasagar, Assam.
4. The Group Manager-HMM, ONGCL, ERBC, Assam Asset, Nazira, Post Office, Nazira, District: Sivasagar, Assam. 5. The Manager (MM), R.O.B.II, ONGCL, Nazira, Post Office: Nazira, District: Sivasagar, Assam.
6. M/s. Lakwa Steel Construction. A partnership firm being represented by its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High School, District: Sivasagar, Assam, PIN- 785 640.
7. M/s. Assam Equipment & Energy Service Pvt. Ltd. A partnership firm being being represented by one of its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High School, District: Sivasagar, Assam, PIN- 785 640.
8. M/s. Lakwa Construction & Co., A partnership firm being represented by its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 6 of 6
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School, District: Sivasagar, Assam, PIN- 785 640. 9. M/s. Salasar Steel Udyog, A.T Road, Sivasagar- 785 640. 10. M/s. Rangpur Steel Udyog, Sivasagar. Represented by one of its partner Mr. Rajesh Agarwalla, son of Ramji Lal Agarwalla, Resident of B.G. Road, Sivasagar, Assam, Pin- 785 640.
11. M/s. M/s. N. K. Jjuria, A partnership firm being represented by its partner Sri Nirmal Kumar Jhuria, Police Station:Sivasagar, District: Sivasagar, Assam, PIN- 785 640.
12. M/s. J.M. Agarwalla, A partnership firm being represented by its partner Sri Sanjay Kumar Jhuria, Son of Late J.M Agarwalla, Resident of B.G. Road, Post office & District: Sivasagar, Assam, Sivasager.
13. M/s. R. L. Agarwalla & Co., A partnership firm being represented by its partner Sri Rajesh Agarwall, son of Sri Ramji Lal Agarwalla, Resident of B.G. Road, Post Office & District: Sivasagar, Assam.
14. M/s. Trije Engineers, Rept. by Sri Gautam Bhai Bechardas Patel, D-40, First Floor, Pancharntna Complex, near Modhera Charasta Highway, Mehsana, Gujarat, PIN- 384002.
15. M/s. DU Point Engg. Works, Rept. by Bishnu Bhai Pajidas Patel, D-40, First Floor, Pancharntna Complex, near Modhera Charasta Highway, Mehsana, Gujarat, PIN- 384002.
16. M/s. Pradip Sharma, A partnership firm being represented by its authorized signatory Sri Diganta Mishra, Resident of Khijnoor Ali Road, Post Office & District Sivasager, Assam. 17. M/s. Welldo Enterprise, A proprietorship firm being represented by its authorized signatory Sri Jhantu Das, Son of Sri Jogadish Chandra Das,
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 7 of 7
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Resident of Babu Patty, Sivasagar, Post office:Sivasagar, Dist.Sivasagar, Assam. 18. M/s. B.K. Gogoi, A proprietorship firm being represented by its proprietor Sri Budhin Kumar Gogoi Son of Late Jagat Gogoi, Care of Madhav Timber. A.T Road, Sivsagar, Post office & District-Sivasagar, Assam. 19. M/s. Gajanand Agarwalla. A proprietorship firm being represented by its partner Sri Gajand Agarwalla, Son of Late Dhiraj Agarwalla, Resident of Singh Doullah Road, Post office & District-Sivasagar, Assam. 20. M/S Pradip Kr. Dutta, A proprietorship firm being represented by its proprietor Sri Pradip Kumar Dutta, Son of Sri Debenanda Dutta, Resident of Janaki Nagar, Post Office : Dhuliapar, District : Sivasagar, Assam.
21. M/S Sontosh Sahewalla, A partnership firm being represented by its partner Sri Santosh Sahewalla, Son of Late Surajmal Sahewalla, Resident of L.K. B. road, Post Office & District, Sivasagar, Assam, Pin-785640. 22. M/S Kalyan Enterprise, A partnership firm being represented by its partner Sri Kalyan Gogoi, Bokota Nemugiri, Post Office & Police Station : Titai Pukhuri, Sivasagar, Assam, Pin-785 685.
23. M/S Ruhini Gogoi, A Proprietorship firm being represented by its proprietor Sri Ruhini Gogoi, Son of Late Dharmeswar Gogoi, Resident of Mout Gaon, Lakwa, Post Office, Mout Gaon, District :Sivasagar, Assam. Pin. 785688.
24. M/S Khagen Gogoi, A Proprietorship firm being represented by its proprietor Sri Khagen Gogoi, Son of Late Indreswa Gogoi, Resident of Solapathar near GGS-1, Post Office : Lakwa, District : Sivasagar, Assam. 25. M/S Jintu Dutta, Represented by its partner Sri Jintu Dutta, Resident of
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 8 of 8
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Phukan Nagar, Post Office; Phukan Nager, Police Station : Sivvsagar, Sivasagar, Assam, Pin-785 640. 26. M/s. Mech Technik (India) Pvt. Ltd. Guwahati. C/o.M/s. Lakwa Construction & Co., A partnership firm being represented by its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High School, District: Sivasagar, Assam, PIN- 785 640. 27. M/s. K. K. Bordoloi, A proprietorship firm being represented by its proprietor Sri Khirud Kumar Bordoloi, Son of Umesh Chandra Bordoloi, Resident of Sarvodaya Adarsh Gaon, Post Office : Gargaon, Dist: Saivasagar, Assam. 28. M/s. J.M. Engineering & Co., Jyoti Nagar, Post Officer: Parbatpur, Dibrugarh- 786 623. 29. M/s. Engineering Enterprise, A proprietorship firm being represented by its proprietor Sri Chittaranjan Boruah, Son of Sri Durgeswar Sarmah Bourah, Resident of BOC Gate, Post Office : Duliajan, District : Dibrugarh, Assam. 30. M/s. Kakoti Engineering Works Pvt. Ltd. A partnership firm being represented by its partner Sri R.P. Kakoti, Son of Late Ram Prasad Kakoti, Resident of A.T Road, Post Office & District : Saivasagar, Assam.
31. M/s. B.K. Agarwalla Geleky, Represented by Sri Biju Kr. Agarwalla, Athkel Agleky, P.O & P.S : Geleky, Dist: Saivasagar, Assam. PIN- 785685.
32. M/s. S. M. Agarwalla, A partnership firm being represented by its partner Sri Sanwarmal Agarwalla, Son of Late H.P. Agarwalla, Resident of Station Road, Post office : Nazira Dist: Saivasagar, Assam. 33. M/s. Swastik Engineering Works, A proprietorship firm being represented by its proprietor Sri Shiv Bhagwan Agarwalla, Son of Late Hariram Agawalla,
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 9 of 9
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Resident of Old Balibat, Jorhat, Post Office & District : Jorhat, Assam.
34. M/s. Kakoti Engineering Works, A partnership firm being represented by its partner Sri R.P. Kakato, Son of Late Ram Prasad Kakoti, Resident of A.T. Road, Post Office & Dist. Sivasagar, Assam.
By Advocates:
Mr. K. N. Choudhury, Advocate. Mr. B. K. Das, Advocate.
B E F O R E THE HON’BLE MR. JUSTICE S. TALAPATRA
Date of hearing : 23rd February, 2012. Date of Judgment : 6th August, 2012.
J U D G M E N T AND O R D E R
The writ petitions are tied up on considering that a common
thread of the challenge binds by the genus and also for the reason that
sans some variation of facts, commonness is discernible to which the
learned counsel for the parties as well have agreed to.
2. The grievance in both the cases emanates from a
corrigendum dated 02.05.2011 by enlarging the scope of participation of
the prospective bidders after pre-bid conference held on 06.12.2010 in
respect of the tender No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-
11/R16TC10006 dated 08.11.2010 was issued by the competent authority
of the ONGC for collecting rate contract for laying of Oil/Gas/Water
injection pipelines in the oil field of Assam Asset in W.P(C) No. 5211 of
2011 (M/s. Zeeneel Construction & Maintenance Vrs. Union of India and
Others) hereinafter referred to as the Zeeneel. The similar tender was
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 10 of 10
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floated by the competent authority in the ONGC by the Notice Inviting
Tender No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-11/R16TC10006 dated
08.11.2010 for laying of Oil/Gas/Water injection pipelines in the oil field of
Assam Asset in the W.P(c) No. 2718 of 2011 (in the matter of M/s. Khirud
Kumar Bordoloi and 15 others Vrs. The Oil and Natural Gas Corporation
Ltd. and others) hereinafter referred to as the Bordoloi. Other grievances
as ancillary are related to acceptance of the rate as quoted by the L1,
which far below than the work rate and changes as made in the wake of
the said corrigendum.
Some essential facts as reflected in the records may briefly
be noted for appreciation of the challenge and also for locating the factual
variation between two writ petitions:
3. W.P(C) No. 2718 of 2011
The petitioner are firms engaged in various contract works
awarded by the ONGC and other firms and executing the rate contract for
laying of Oil/Gas/Water injection pipelines in the oil field of Assam Asset
ONGC for the period of 2008-2011. On 08.11.2010 the ONGC Ltd issued
the Notice Inviting Tender (NIT for short) as stated for laying of
Oil/Gas/Water injection pipelines in the oil field of Assam Asset for a period
of three years. The date of opening of the tender was fixed on 11.01.2011.
The said NIT did not contain the MOU/Joint Venture/Consortium clause as
the tender committee of the ONGC was of the view that already there
existed 21 bidders in the fray and keeping the MOU/ Joint
Venture/Consortium clause would lead to participation of more small and
inexperienced vendor. The petitioners asserted that the tender committee
took conscious decision to keep such experienced small vendors at bay
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 11 of 11
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from the tender process. After the tender papers were collected by the
petitioners, the pre-bid consultation was held between the intending
bidders and the ONGC on 06.12.2010. The petitioners projected certain
queries and explanation, such as reimbursement of service tax by the
ONGC and they illustrated the example of reimbursement from the other
Assets of the ONGC. After the pre bid conference, the ONGC limited issued
a corrigendum under No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-11
dated 02.05.2011 bringing some modifications of the original tender and
also incorporating the clause of the MOU/ Joint Venture/Consortium bids,
the last date of submissions of tenders and opening date of the tenders on
31.05.2011. The said corrigendum is available at Annexure-IV. The
petitioners also submitted that the said corrigendum is also silent about
the issue of reimbursement of the service tax. The petitioners further
asserted that previously also the tenders were settled without the said
MOU/ Joint Venture/Consortium clause. As such the legality of the
corrigendum has been questioned in the writ petition. While dilating the
challenge a further ahead, the petitioner strongly contended that by
holding the pre bid consultation the standard terms and conditions of the
NIT cannot be changed as the purpose of pre bid conference has been
well-delineated. It is provided in Clause 6(1) of the NIT and according to
the petitioner the terms and conditions which are not part of the
standard terms and conditions of the tender can only be modified. The
standard terms and conditions includes “General Conditions of Contract”,
“Specific Conditions of Contract” and “Bid Evaluation Criteria”. The MOU
clause being part of the bid evaluation criteria cannot be modified as a
result of any pre-bid conference. Moreover, reimbursement of the service
tax which was raised in the pre bid conference was not taken care by the
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 12 of 12
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ONGC. The petitioners laid bare their apprehension stating that
participation of the MOU/ Joint Venture/Consortium of the small vendors
would result in abnormally low rate and ultimately push to the retendering.
The petitioners submit that inclusion of the MOU clause by way of said
corrigendum would only affect the interest of the petitioners bringing
about heavy losses. The petitioners’ contention is not cloaked but bare that
when there is no dearth of technically sound vendors, the inclusion of the
MOU clause for inducting the small vendors in the name of consortium or
joint venture is nothing short of a colourable exercise of power of collateral
purpose which cannot be stated a valid action in the touchstone of Article
14 of the Constitution.
4. W.P(C) No. 5211 of 2011
The petitioner has been dealing and executing various
contract works under the Oil and Natural Gas Corporation Limited, the
ONGC and other Government and semi Government Departments. The
petitioners firm was awarded contract for hiring of rate contract for laying
and maintenance of underground carbon steel pipelines in various fields of
Mehsana Asset for a period of 3 (three) years 2008-2011 and the firm had
executed the work for Mehsana Asset. In response to the Notice Inviting
Tender (for short NIT) No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-
11/R16TC10006 dated 08.11.2010 for laying of Oil/Gas/Water injection
pipelines in the oil field of Assam Asset for a period of three years the
petitioners intended to participate in the tender. The last date of opening
of the tender was fixed on 11.01.2011. The said tender also did not
include the MOU/ Joint Venture/Consortium clause since the tendering
committee has been of the view that there are existing 21 bidders in the
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 13 of 13
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process and retention of MOU/Joint Venture/Consortium clause would lead
to participation of more small and inexperienced vendors in the bid and
that would further lead to abnormal rates and ultimately to retendering.
The petitioners collected the tender papers and participated in the pre-bid
conference on 06.12.2010 where some inexperienced bidders raised query
regarding inclusion of the MOU clause. Thereafter, the ONGC authority
issued a corrigendum No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-11
dated 02.05.2011 for purpose of carrying out some modifications in the
original tender terms. Also for inclusion of the MOU/ Joint
Venture/Consortium clause. The last date of submission of the tender was
re-fixed on 31.05.2011. The said corrigendum is available at Annexure-II.
After such corrigendum was issued the petitioners on due compliance of
the tender condition submitted the tender papers. On 31.05.2011 when
the petitioner along with other tenderers appeared in the office of the
General Manager, the ONGC, Nazira they are informed that a writ petition
was moved before this Court by one of the prospective tenderers for
setting aside the tender dated 08.11.2010 and the corrigendum dated
02.05.2011. On the basis of such information the petitioner came to know
about the existence of the other writ petition being W. P.(C) No. 2718 of
2011 as filed by one of the prospective tenderers. By the order dated
27.05.2011 this Court directed the ONGC not to finalize the tender process.
The ONGC opened the Techno Commercial Bid on 31.05.2011 and
thereafter price bid was opened on 07.09.2011. 30 firms participated in the
tender process and on opening of the price bid it surfaced that the lowest
bidder namely M/s. Lakwa Steel Construction, Sivasager quoted 42.60%
below the rate provided in the schedule of rate. The petitioner has
provided the elaborate information regarding the rate quoted by all 30
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 14 of 14
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firms and thereafter contended that the ONGC on 20.09.2011 by a e-mail
asked the petitioner referring to the rate quoted by the L1 bidder i.e.
42.60% below the schedule rate of the tender requested to match its price
with the L1 price. The petitioner was categorically asked to confirm yes or
no in the enclosed confirmation format in separate sealed covers for A and
B i.e. SBS(-) ZRT(-) latest by 19.09.2011. The L1’s rate is further below by
27.6% than the work rate. In the backdrop of the startling upward mobility
of the price of materials particularly Steel, aluminum pipe, Synthetic
enamel points, various mm ND Pipe etc. it is an unworkable rate as the
price came down to Rs. 76 per metre. Whereas the petitioner was
awarded the contract work for the period from 2008 to 2011 at Rs. 132.25
which is 15% above the previous years price. The contract work for 2011
to 2014 would have been fixed 15% above the earlier rate of the existing
contract for the period of 2008-2011. The petitioner has narrated his own
experience while executing the rate contract for laying and maintenance of
underground carbon steel pipelines in various field of Mehesana Asset for
a period of three years. The petitioners’ grievance as emerged from the
said narrative is that the ONGC has accepted the L1 bid of the respondent
No. 6 without making any alalysis of the rate and that itself shows lack of
appreciation of the relevant factors contributing to the workable rate. The
petitioner also for this purpose referred to the clause 5.4 of the pre-
tendering activity of the said Work Manual of 2007 which reads as under:
“5.4. The accuracy range of estimates prepared
on the basis of schedule of quantities and
schedule of rates as mentioned above shall be
considered as + /- 10%”
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 15 of 15
15
As per Clause 56.0 to 56.6 of award of work of the said Work
Manual also read as follows:
“56.0 PRESCRIBED LIMITS FOR ACCEPTANCE
OF TENDER
Discounts/rebates offered by any tenderer
shall not be considered for evaluation of
tenders. However, if the lowest bidder
happens to be the final acceptable tender4er
for award of contract and if he had offered any
discount/rebate, the contract shall be awarded
after taking into consideration such
discount/rebate. These provisions shall be I n
corporate in the tender document.
56.1 Offer quoted by L-1 bidder within the
accuracy range (+/-) indicated in the
estimated cost prepared as per the approved
procedure shall be the normal limits for
acceptance of tenders. In case of 3 or m ore
acceptable bids, and the quoted of L-1 bidder
within the normal limits of acceptance, then
the work may be awarded to L-1 bidder
without resorting negotiations.
56.2 In case where the estimates have been
prepared on the basis of budgetary quotations
and the accuracy range of these estimates
cannot be determined and 3 or more
acceptable bids have been received against
such a tender, this will be processed for
finalization without resorting to negotiations.
56.3 A. i. There shall note any negotiations.
Negotiations if at all shall be an exception and
only in the case of proprietary items or in the
case of items with limited source of supply.
Negotiations shall be held with L-1 only.
Counter offers tantamount to negotiations and
should be treated at par with negotiation.
ii. Negotiations can be recommended in
exceptional circumstances only after due
application of mind and recoding valid, logical
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 16 of 16
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reasons justifying negotiations. In case of
inability to obtain the desired results by way of
reduction in rates and negotiations prove
infructuous, satisfactory explanations are
required to be recorded by the committee who
recommended the negotiations. The
committee shall be responsible for lack of
application of mind in case its negotiations
have only unnecessarily delayed the award of
work/contract.
B. The model time frame for according
such approval to completion of the entire
process of award of tenders should not exceed
one month from the date of submission of
recommendations. In case the file has to be
approved at the next higher level a maximum
of 15 days may be added for clearance at each
level. The overall time frame should be within
the validity period of tender/contract.
C. In case of L-1 backing out there should be
re-tendering as per existing instructions.
(Reference: CVC Office order no. 68/10/05
dated 25/10/2005).
56.4 If the negotiated offer of L-1 bidder is
still not within then normal limits of
acceptance, the offer may be examined on the
merit of the case and put up the
recommendations for the approval of CTAA.
56.5 Negotiations with L-1 bidder, if
required, will be carried out the approval of
Level – 1 officer for non EPC cases and Director
concerned in EPC level cases. Approval should
be obtained prior4 to call of L-1 bidder for
negotiations.
56.6 When the tendered amount of L-1
bidder is lowest than the accuracy range of the
estimated cost, the offer be examined w.r.t the
workability of rates as compared with the
estimated cost as per scope of work and
recommendations shall be submitted as per
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 17 of 17
17
merit of the case for the approval of CTAA
56.7. In case, the contractor fails to execute
the contract satisfactorily in terms of the
contract provisions, the contactor shall be put
on holiday for a period of Two Years from the
scheduled date of completion of the work for
further business with ONGCL as per prevailing
ONGCL procedures, without any further
reference to Contractor”.
The petitioner’s appreciation of the provisions, extracted from
the Work Manual, 2007, has led to a conclusion that the accuracy rate to
be considered as plus/minus 10% and there cannot be any reason to ask
the petitioner and other tenderers to match down the bid which is 42.60%
below the schedule rate of the tender, as such the action of the ONGC is
highly illegal, arbitrary, un-authorized, unreasonable, unjust, whimsical and
capricious and warrants interference by Court. Basing on such contention
of the petitioner finally holds that the ONGC by fixing the L1 rate has
violated the procedural norms clearly and as such the process as espoused
by the ONGC has been infracted and such exercise of the ONGC is
colourable one for collateral purpose. Therefore, determination of the L1
be struck down and the ONGC be directed to award the said work at rate
which is within minus 10% of the schedule rate of the tender and after
perusal of the materials on record and after hearing the parties.
5. On the other hand the ONGC in both the cases has taken a
common position for defending their action on the face of the allegations
of infraction as well as for clarifying the process as carried on, on the basis
of the relevant materials and the authority created thereunder and without
any prejudicial aberration whatsoever stating that the clause regarding
MOU/ Joint Venture/Consortium clause was left out from NIT Dated.
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 18 of 18
18
08.11.2010. However, as soon as the same was pointed in the pre bid
conference by some of the intending bidders, the same was corrected and
the MOU/ Joint Venture/Consortium Clause was inserted. It is stated that
MOU/ Joint Venture/Consortium Clause is an integral part of the ONGC’s
tendering policy for both domestic and international tenders. This clause
allows bidders to pool resources and experiences required for a particular
job, for eligibility as well as for execution. This provision helps the
domestic bidders to participate in international tenders on the basis of a
suitable tie up with international firms having experience and technology.
In case of the domestic tenders, it helps the local vendors to participate in
the tenders with the support of experienced partners. Therefore, this
clause is in the interest of the local vendors and is important for
development local expertise and job experience. In the tender, the MOU/
Joint Venture/Consortium Clause had been initially dropped considering
that this may not be relevant for the tendered job, as some of the local
vendors were executing the similar work. But, some of the intending
bidders raised queries in the pre-bid conference against the omission of
the said provision and some intending bidders requested the ONGC to
include the said clause and accordingly, taking into consideration, all the
relevant facts and circumstances, the ONGC decided to retain this clause in
line with the tendering policy of the ONGC and the earlier tenders issued
for similar and other works. After scrutinizing the intending bidders and
having deliberated upon the ONGC authority decided to issue the said
corrigendum. The ONGC contends that it would be evident from a perusal
of Clause 6.1 of the Instructions to Bidders wherein it is provided that in
case any specific term and condition, other than a “standard terms and
conditions of tender” requires to be modified, then the same will be
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 19 of 19
19
considered for modification. Obviously, such modification of a tender
condition cannot be done in one day and the same would require the
consideration of the tender committee and the approval of the competent
authorities of the ONGC. Moreover, as per the various Manuals of the
ONGC and instructions issued from time to time, certain time period is also
fixed for replying to the queries raised in the pre-bid conference, which
are required to be recorded in the form of minutes and thereafter the
same is to be issued to the bidders. In the pre-bid conference held in
connection with the present tender, various queries were raised including
few objections regarding the exclusion of the MOU/ Joint
Venture/Consortium Clause and requests for inserting the same.
Considering the matter in its entirety the tender committee decided to
include the aforesaid MOU/ Joint Venture/Consortium Clause into the
tender terms and conditions. The ONGC has categorically denied any other
purpose as attributed by the petitioners but it has been done as a matter
of policy. As regards the Service Tax/VAT and CPF registration certificates
from bidders, it implies that the ONGC wants bidders to comply with the
tax requirements of the Government of India. In turn, the ONGC
reimburses the same to bidders, as the case may be. As regards the issue
of the service tax, it is stated that the ONGC has been continuously
changing its methodology to deal with the service tax for better clarity and
transparency in tenders. Earlier, the ONGC was reimbursing the service tax
as applicability of service tax on various services was not clear and it was
difficult for the bidders to quote service tax. Now, there is sufficient clarity
on the applicability of service tax, the ONGC has adopted a uniform policy
of treating service tax as any other tax like sales tax etc. The bidder has to
quote for the service tax in their bid and get paid for the service tax along
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 20 of 20
20
with the payment for the services rendered. In this tender also bidders
have been asked to quote their prices inclusive of service tax and they
have been asked to indicate the service tax component i.e. the rate of
service tax, separately for the purpose of adjustment of rate in case there
is any increase/decrease in the service tax rate in the future as per change
in law. While quoting the rate, the bidder is required to quote the rate
inclusive of service tax and also separately indicate the rate of tax. In case
the rate of service tax is increased then the ONGC would make the
corresponding deduction. However, the duty and responsibility of payment
of the service tax would lie with the contractor not with the ONGC The
payment, therefore, as made to the contractor is inclusive of the service
tax. The ONGC in their affidavit-in-opposition categorically denied that the
authorities of the ONGC never replied to the queries of the petitioners
regarding reimbursement of the service tax as alleged.
The ONGC had denied of any policy decision, more particularly of
the tender committee not to include the MOU/ Joint Venture/Consortium
Clause and that the said decision was taken in respect of all the contracts
of the ONGC. The contract for hiring of scrapping winch chassis as
mentioned by the petitioner in the Bordoloi is a contract for hiring of a
particular vehicle and for that the competent authorities at the ONGC after
considering the nature of services available in the market and past
experience etc. was of the view that such a condition would be redundant
in the said tender for the fact that in case of hiring of a vehicle, a joint
venture/consortium or a party having a MOU with another party may not
be necessary. As stated earlier , it has been stated that the MOU/ Joint
Venture/Consortium Clause is an integral part of the NITs of the ONGC and
is included in almost all the ONGC tenders across all units in the country.
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 21 of 21
21
The said clause is some time dropped considering the relevance in the
tender. It is stated that MOU/ Joint Venture/Consortium Clause is very
much essential for the purpose of supporting the local entrepreneurs who
can participate in tender process with the help of a party who has the
requisite experience and technical know-how. Therefore, its omission
would have the effect of limiting the number of eligible bidders and its
inclusion would give a much wider range of participation. The view of the
ONGC inclusion of the MOU/ Joint Venture/Consortium Clause proved to be
enterprising because of the fact that some of the local vendors after
purchasing the bid documents, showed their interest in participating in the
tender process and requested that the MOU/ Joint Venture/Consortium
Clause should be included in the tender also, in the line with the earlier
tenders on the same work. The corrigendum, according to the ONGC, is a
restoration of the policy decision of the ONGC rather than being in violation
of its policy. It is denied that the corrigendum dated 2.5.2011 is at all
arbitrary, discriminatory, illegal, unauthorized, irregular, uncalled for,
unjust, unreasonable and without jurisdiction and liable to be set aside and
quashed as alleged.
6. It has been denied that the standard terms and conditions of
the tender are the general conditions of the tender and the special
conditions of the contract (SCC). By the corrigendum dated 2.5.2011 what
has been amended is the instruction to the bidders(ITB), which is
admittedly is not a part of the standard terms and conditions of the tender.
With the amendment to the Instructions to Bidders a corresponding
amendment in the Bid Evaluation Criteria has to be in order that the two
are in conformity to each other. Therefore, it would be evident that the Bid
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 22 of 22
22
Evaluation Criteria is not a standard terms and conditions of the tender
and as such varies from tender to tender. The entire tender consist of five
parts namely (i) the instruction to Bidders, (ii) the General Conditions of
Contract, (iii) the Special Conditions of Contract, (iv) Bid Evaluation Criteria
and (v) price bid proforma. If the interpretation sought to be given by the
petitioners to the term “standard terms and conditions of the tender” is
accepted , then Clause 6.1 of the instruction to bidder would be redundant
in as much as, in such an event if any objection is raised on behalf of the
bidders regarding any condition in the contract, the same would be
meaningless because it is held that the Bid Evaluation Criteria is a part of
the standard terms and conditions of the tender then nothing can be
amended or changed even in case a bidder has some query or objection.
The allegation that the changes in the Bid Evaluation Criteria have been
brought only to accommodate some favoured contractors without any
basis and absolutely incorrect.
7. As regards the L1 or as to the apprehension by the
petitioners about the abnormal rates being collected is totally unfounded
and is categorically denied by the ONGC. The ONGC has categorically
stated that in the earlier tender for similar work, floated in the year 2008,
viz. Tender No. NZR/MM/C & M/Pipeline/54/2007-08/R16AC07005, the
MOU/ Joint Venture/Consortium Clause was very much there. The ONGC
has also denied that the MOU/ Joint Venture/Consortium Clause is not a
part of any policy of the ONGC. It has been asserted that exclusion of the
said clause is by way of exception in consideration of the redundancy,
special situation specific to that tender and in the given circumstances of
the particular tender. The ONGC has stated that the tender conditions
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 23 of 23
23
were changed during the course of pre-bid conference and in line with the
queries raised by the intending bidders including the petitioners. The said
changes have been incorporated in the tender prior to the submission of
the bids by any of the bidders and, therefore, no prejudice has been
caused to the petitioners by issuance of the corrigendum dated
02.05.2011. Further the technical specification has not been changed in
any manner so as to influence the decision of an intending bidder to
change the price quoted. It is reiterated that through the corrigendum the
ONGC has resorted an eligibility clause, which is present in almost all
tenders floated by the ONGC and which had been dropped from the
present tender under the facts and circumstances as stated and has been
included for purpose of bringing the present tender in line with the uniform
tendering policy of the ONGC. They had stated that it is not a case for that
purpose where the petitioners have been prejudicially affected so far the
technical bids or the price bid is concerned. The ONGC has categorically
stated that none of the bidders in the present tender has submitted the bid
till the query raised in the pre-bid meeting held on 06.12.2010 has been
answered by the ONGC. All bids, including the bids of the petitioners were
submitted after issuance of the corrigendum dated 02.05.2011. Therefore,
no prejudice, whatsoever has been suffered by the petitioners by the
issuance of the corrigendum dated 02.05.2011. Basing on such assertion it
is pleaded that the ONGC be permitted to go ahead and to complete the
tender process in accordance with law.
8. In the Zeeneel an additional issue of accepting the L1 has
been dwelled upon by the ONGC stating that the petitioner was asked to
match with the rate of the L1 bidder as per tender conditions viz. Clause
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 24 of 24
24
B3.11 of the Bid Evaluation Criteria (BEC) wherein it is specifically provided
that bidders would have to quote overall (+) or (-) % in percentage in
comparison to the rates of the ONGC, as provided in the Schedule of
Rates and after selection of the L1 bidder, all other bidders will be asked to
match the rate offered by the L1 bidder. Thereafter the entire work would
be divided amongst 21 bidders, 10% of the work would be allotted to the
L1 bidders and the balance 90% work would be allotted to the 20 bidders
@ 4.5% each and in case there are less 20 bidders, who agree to match
the L1 rate, then the 90% work would be divided equally amongst the
successful bidders. The petitioner not having agreed to match the L1 rate
does not have any locus to file the present writ petition and say that the
L1 rate is excessively unreasonable. Moreover, as per the tender conditions
and standard procedure, the L1 bid cannot be ignored. It has been further
stated that the tender in question was an open indigenous tender and the
bidders were free to quote any rates, which according to bidder are
workable. Moreover, from the statements made in paragraph 13 of the
Zeeneel’s petition it would be evident that 20 out of 30 bidders i.e. 67% of
the bidders including the petitioners in the Borduloi who are the existing
contractors doing/executing similar works have quoted rates in the range
of (-)20% to (-)42.6% and 17 bidders are agreed to work at the L1 price
of (-)42.6%. Therefore, so many bidders have agreed to work at such rate
and have voluntarily accepted the lowest rate, the said rate truly
represents the market rates and the statement of the petitioner that the
rates are not workable is incorrect and accordingly, denied by the ONGC.
According to them that (-) 42.6% as quoted by the L1 is workable and
reasonable rate. The ONGC has discarded straightway the assertion of the
petitioner in the Zeeneel. According to the ONGC rates of Mehsana Asset
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 25 of 25
25
cannot be compared with the rates of Assam Asset. Having said that rates
of any tender are obtained through the open competition and it is for the
bidders to quote the rates. As per tender conditions, the L1 rates have to
be accepted and if some bidders are not agreeable to work at a particular
rate, it is not open for the ONGC to say that the rates are on the lower
side. M/s. Lakwa Steel Construction, the respondent No. 6 in the Zeeneel
has on their volition quoted rates of (-) 42.6% and 17 other bidders have
agreed to match the said rate. Hence the rate quoted by the bidders
cannot be said to be unworkable as projected by the Zeeneel, the ONGC
strongly denied that without making any analysis of the rate as quoted by
the L1 has been accepted or it suffers from non application of mind as
alleged. For elucidation further, the ONGC asserted that the Work Manual,
2007 is not applicable to the present tender. By the Circular dated
30.06.2008 issued by the competent authority of the ONGC, it has been
stated that the issue as to whether Works Manual or Material Management
(MM) Manual should be followed in tenders processed by the Materials
Management (MM) Department it has been clarified that for the tenders
which are processed by the Material Management (MM) Department of the
ONGC, only the Material Management Manual should be followed. Further
stated that, even assuming for the argument’s sake but not admitting that
the Works Manual shall apply in the present tender then the Clause 5.4 of
the Works Manual, without referring to Clause Nos. 5.1 to 5.3 would
nothing but an attempt to mislead this Court inasmuch as, the works as
mentioned above appearing in the clause 5.4 indicates that the said clause
is applicable in case of the Schedule of Quantities (SOQ) and Schedule of
Rates (SOR) prepared under Clause 5.1 to 5.3 which are only for civil and
electrical works. The clause which specifies the preparation of the cost
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 26 of 26
26
estimates of pipelines etc. is the clause 5.6 and there is no provision/scope
of any accuracy of (+)/(-) 10% while preparing such estimates. Moreover,
the said clause is only with regard to the accuracy of the ONGC while
preparing the SOQ and SOR for Civil and electrical work. As such Works
Manual is not applicable in the tender process under reference. As the
ONGC asserted the Material Management Manual (MMM) were only apply
so far the Clause 56.0 to 56.6 of the Works Manual have nothing to do
with the present tendering process.
9. Mr. N. Dutta, learned Senior counsel appearing for the
Bordoloi submitted that this tender process has lost its sanctity for
interference by the tendering authority by way of changing the standard
specifications of the tender. He submits that as per the Work Manual,
2007, the work manual shall be applicable for all type of works or items
rate and LSTK basis covering Civil & Electrical, E & M Works,
Instrumentation and E and T Works, Offshore Works, Dry Docking Works,
O & M Works, Onshore Works, Rigs and Equipments Repair Works as
detailed under para 2.0 of the Works Manual, 2007. As sequel to the
Clause 1.1 of the Works Manual, Mr. Dutta, learned Senior counsel referred
to the definition of the ‘Works’ as appearing in Clause 2.1 where the
following has been provided:
“Works” shall mean any activity/group of
activities/turnkey or otherwise such as
construction works inclusive of civil,
mechanical, electrical, C&M, operation,
pipelines and oil field installations for onshore
& offshore, repair & maintenance, materials
and services, related to these
installations/works undertaken to achieve the
desired objectives of ONGC”
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 27 of 27
27
Some exceptions Mr. Dutta, senior counsel pointed out, are
also catalogued but those do not cover the present work. Thereafter, he
pointed out that apart from the works as listed in the work manual all
other activities/jobs shall be got executed through the MM Manual. Since
the work is of laying of the pipelines and oil field installation, the work
must be covered by the Work Manual 2007 and has to be carried out as
per guidelines of the Work Manual, 2007. He continued to submit that the
detailed guidelines are available in the Work Manual, 2007. Where it has
been also stated that the accuracy range of the estimate prepared on the
schedule of the quantities and the schedule of rates as mentioned shall be
considered as (+)/(-) 10% on the schedule of rates. It has been provided
in Clause 5.3 that the said rate has to be derived. Mr. N. Dutta, learned
Senior counsel referring to the Clause 24.2 of the said manual submitted
that the major qualifying criteria in respect of the two bid system and the
essential qualifying requirement in respect of the single bid system must
be specified clearly in the NIT and be published in the ONGC tender
website so that prospective bidders are aware of this requirement at the
time of buying the bidding documents. As sequel to that he further
submitted that in Clause 55.4 it has been categorically stated:
“However, if , as a sequel to the pre-bid
conference, modifications are required in the
BEC/ specifications/tender conditions
(excluding commercial conditions standardized
by PMC and excluding the major qualifying
criteria), prior approval of the CTAA would have
to be obtained by the work centre by providing
detailed justification for agreeing to such
modifications.
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 28 of 28
28
Mr. Dutta, learned senior counsel further submitted that by
the corrigendum dated 02.05.2011, the respondent, the ONGC the
standard terms of the contract has been changed. The Annexure-1
appended to the corrigendum dated 02.05.2011 clearly demonstrates that
how the changes have occurred. He submitted that these are the pointers
of the extreme arbitrariness in the administrative action.
10. Mr. D. Das, learned senior counsel appearing for the Zeeneel
has also released the similar salvo and stated that entire tender process
has been vitiated for arbitrary action of the ONGC. But his focus was on
acceptance of the L1 bidder. Referring to Clause 56.1 of the Work Manual,
2007. Mr. Das, learned senior counsel strenuously argued that the entire
exercise of selecting the L1 has been carried out in violation of the said
provision and so has been done so that the entire exercise culminate in
the retendering. Gainfully Clause 56.1 is quoted:
“Offer quoted by L-1 bidder within the
accuracy range (+/-) indicated in the
estimated cost prepared as per the approved
procedure shall be the normal limits for
acceptance of tender. In case of 3 or m ore
acceptable bids, and the quote of L-1 bidder
wit h in the normal limits of acceptance, then
the work may be awarded to L-1 bidder
without resorting to negotiations”
He further submitted on the basis of Clause No. 5.3 that the
workable rate is surveyed by the Service/Project execution group to collect
costs/budgetary quotations as per the existing practices as duly approved
by the level-II officers. The prevailing market rates is surveyed by a
Committee of the officers comprising of the representatives of the level not
below E-1 from the attached finance and Service/Project execution group.
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 29 of 29
29
The committee for collection of market rates is constituted by not lower
than the Level-II officers in consultation with the local finance. However,
the committee should ensure that the budgetary quotations are collected
from the reputed parties. The basic market rates and the analysis of rates
of the individual items will be approved by not lower than the Level-II
officers.
Mr. Das, on the basis of the said provision submitted that the
L1 has quoted a rate below 42.60 and despite that he has been selected as
the L1 without any question. From the affidavit-in-opposition, it is apparent
that the ONGC has accepted that rate. He further submitted that this is a
fit case where this Court should interfere the arbitrary action of the
respondent, the ONGC.
11. On the other hand, Mr. K. N. Choudhury, learned senior
counsel appearing for the ONGC at the out set stated that the writ
petitions are not maintainable for the reason that all the writ petitioners
after participating in the tenders in terms of the corrigendum dated 02-05-
2011 have approached this Court, they are estopped by their conduct to
question the action. In support of his contention he referred a decision of
the Apex Court in Tafcon Projects (I)(P) Ltd. Vrs. Union of India
and others, reported in (2004) 13 SCC 788 where the Apex Court held:
“we need express no view on this matter
because in any event Respondent 3’s offer of
an upfront payment of Rs. 2.50 lakhs per
year, which was much lower than that offered
by the appellant M/s. Tafcon. Therefore,
whichever meaning is accepted, untimately
M/s. Tafcon’s offer was much better than that
of respondent 3 and its selection cannot be
faulted. Besides Respondent 3 had bid
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 30 of 30
30
pursuant to the tender notice and participated
in the proceedings before the Selection
Committee. It cannot now take advantage of
any alleged vagueness in the tender notice.”
Mr. K. N. Choudhury, learned senior counsel further
submitted that by a Circular under No. MAT/PMC/WM/1/08 dated 30-06-
2008 the decision of the corporate material management has been
communicated. The said circular contends inter alia:
“The issue regarding whether to follow the
Works Manual of MM Manual in ternders
which are being processed b y the MM Deptt.
has caused considerable confusion in the
Work Centres.
In fact only MM Manual should be followed for
tenders which are being processed by the MM
Deptt.
With a view to avoid confusion at Work Centre
level, it is suggested that following clause
should be incorporated in the Works Manual,
2007.”
For tenders which are to be processed by the
MM Deptt as per BDP. Only MM Manual is to
be followed.”
From the tender document it would be found that the tender
has been floated by the GM Head (MM) Assam Asset, Material
Management Department, as such the tending process is remotely related
with the Work Manual, 2007, it has been guided by the Material
Management Mannual. As such there is no relevance of the Work Manual,
2007. In addition thereto, Mr. Choudhury, learned senior counsel
submitted that there had been no violation of the appropriate manual and
to prove his point, Mr. Choudhury referring to the corrigendum dated 02-
05-2011 submitted that the corrigendum itself would prove that the
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 31 of 31
31
standard specification have not been altered what has been altered is the
instruction of the bidders and some consequential changes in the terms
and conditions of the tenders have taken place to adjust the said change.
Therefore, the contention of the petitioners is absolutely without
substance. As regars, selection of the L1, Mr. K. N. Choudhury, learned
senior counsel submitted that the Clause 56.1 is not the absolute yardstick
but there can be variation in view of Clause 56.6 of the Work Manual 2007
which stipulates that when the tender amount of the L1 is lower than
accuracy range of the estimated cost, the offer be examined w.r.t the
workable rates as compared with the estimated cost as per scope of the
work and the recommendations are required to be submitted as per merit
of the case for the approval of CTAA. In the case in hand the workability
has been scrutinized and in the affidavit-in-opposition the reasons have
been assigned by the ONGC and as such, there can be any question of any
breach of the espoused policy of the tendering by the ONGC or in the
selection of the L1. The ONGC has produced the relevant records before
the Court for examination.
12. On consideration of the rival contentions and on scrutiny of
the records as available before this Court, this Court finds that the
contention of the petitioners that there had been breach of the Works
Manual, 2007 cannot be accepted in view of the circular dated 30-06-2008
which categorically stipulates that for tenders which are processed by the
MM Department as per the DDP, the MM Manual is to be followed. In the
writ petitions there is no whisper of the breach of any provision of the MM
Manual. Moreover, no breach also as well could be established by the
petitioner of the provisions as incorporated in the Work Manual, 2007. As
W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 Page 32 of 32
32
regards selection of the L1, the explanation as given by the ONGC on the
workable rate does not appear absurd and there rationale is quite
consistent to Clause 56.6 of the Work Manual, 2007. Therefore, on the
yardstick of the Work Manual, 2007 also the ONGC is not prohibited from
accepting the rate far below +/- 10% of the estimated rate. Moreover, this
Court shall not extend its authority for interfering the exercise of assessing
the workable rate of a commercial bid. This should be left with the domain
of the executives or the authorities. Unless it has been demonstrated the
entire decision is tainted by the unreasonableness, no interference can be
expected of this Court. Moreover, this Court finds that all the writ
petitioners participated in the bid after the corrigendum dated 02-05-2011
was issued and they quoted their rate accordingly. Thus, they are
estopped by their conduct to question the validity of the change that has
been implanted by way of corrigendum dated 02-05-2011 in the original
NIT. Moreover, for such corrigendum, no prejudice has been caused to the
writ petitioners and as such even there is no reason to test the action of
the ONGC-respondent in the touchstone of proportionality.
13. As corollary to these findings, both the writ petitions are
dismissed. However, there shall be no costs in the fact and circumstances
of the case.
The interim order as passed earlier stands vacated. The
ONGC would be at liberty to finalize the tender process and to take
appropriate decision on relevant consideration.
JUDGE
d.de.