PALLIYALIL AHAMEDKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a contractor. He is the successful bidder for execution of a work which is being managed by the State Government with the funds provided by the Ministry of Surface Transport, Government of India. Ext.P2 is the award in favour of the petitioner. The bid of the petitioner in respect of the said work was below the probable amount of contract (PAC) fixed in terms of the bid document. In terms of the award, the petitioner was directed by the employer concerned to furnish performance security as also additional performance security. The grievance of the petitioner in this writ petition concerns the additional performance security demanded from him in respect of the work referred to in the writ petition. According to the petitioner, performance security is demanded in terms of the Instructions to Bidders (ITB) which is part of the Standard Bidding Document prescribed by the Ministry of Surface Transport, Government of India; that bids below the Probable Amount of Contract (PAC) are treated as unbalanced bids in terms of ITB; that additional performance security is to be furnished in terms of the ITB in the case of unbalanced bids if the employer, after evaluation of the price analyses based on the materials available by the contractor, finds that the bid is seriously unbalanced and that price analyses in terms of ITB has not been undertaken by the employer before the petitioner was directed to furnish additional performance security. It is the case of the petitioner that at any rate, he is liable to pay additional performance security only in accordance with Ext.P4 order of the Government. The petitioner has also a case that the direction in Ext.P2 award to furnish 50% of the performance security in the form of Treasury savings deposits is contrary to the terms contained in the Standard Bidding Document. The petitioner, therefore, challenges Ext.P2 award to the extent it directs him to furnish 50% of the performance security in the form of Treasury Savings Deposit and to the extent it directs him to furnish additional performance security. He also seeks a declaration that he is liable to pay additional performance security only in accordance with Ext.P4 order of the Government.

(2.) As per the interim order passed in this matter on 17.7.2017, the respondents were restrained from awarding the work to anybody else on account of the inability of the petitioner to comply with the impugned directions contained in Ext.P2 award.

(3.) A counter affidavit has been filed by the respondents in the writ petition. The stand taken in the counter affidavit is that the demand of additional performance security from the petitioner is in accordance with the ITB. As regards the contention based on Ext.P4 order of the Government, it is stated in the counter affidavit that the same does not apply to work executed with the funds provided by the Ministry of Surface Transport, Government of India.