CHANDRAGIRI CONSTRUCTION COMPANY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) WHILE the claimant before the Sole Arbitrator has filed O.P.No.387 of 2009 challenging the award in respect of the claims which were declined by the learned Arbitrator, O.P.No.596 of 2009 has been filed by the respondents (State Government) before Arbitrator challenging the award.

(2.) FOR the sake of convenience, the claimant before the Arbitrator is referred to as "the Contractor" and the respondents before the Arbitrator are referred to as "the Employer ".

(3.) 1. Issue No.(2): Whether the Contractor is entitled to the value of ` 63,76,197/- towards the alleged unpaid value of repairs to potholes using bituminous macadam, when he has quoted the rate of ` 200/- per square meter instead of cubic meter? 5.2. As per the Bill of Quantities (BOQ) in the bid documents supplied to the Contractor on 26.12.2003 (Ex.C1), regarding the enhanced periodic maintenance of government roads in Krishnagiri Division, Bill No.5 - Bituminous Construction in Serial No.503, which is relating to "Providing and repairs to pot holes on existing road, before profile corrective course is laid, in accordance with clause 3004.2 of MORT&H Specification etc. complete including cleaning all leads, lifts and labour as per the technical specifications and as directed by the Engineer", the unit has been stated as "Sqm" as against the quantity of 3430.00. 5.3. The Contractor has, admittedly, quoted ` 200/- per sq.m. for item 503 on 26.12.2003. It has been the case of the Employer that a pre bid meeting was held on 2.1.2004, approving an addendum and corrigendum stating that the last date for sale of bids is 6.2.2004 instead of 22.1.2004 originally proposed in the document and bids will be received up to 2 p.m. on 9.2.2004 and will be opened at 2.15 p.m. on the same day. On behalf of the Employer , the Superintending Engineer, Tamil Nadu Road Sector Project, Chennai - 600 025 has addressed a letter to the Contractor on 19.1.2004 (Ex.R7) along with the annexure therein which contains corrigendum and addendum, wherein it shows that in respect of S.No.503, Bill No.5, Section 7 (Bill of Quantity) of Contract MC 8 in Unit Column for "Sqm" it was directed to be read as "Cum". 5.4. The case of the Contractor was that the Employer has not supplied any amended Bill of Quantities converting the unit as "Cu.m." instead of "Sq.m.". The Contractor has submitted tender on 9.2.2004 based on the original Bill of Quantities. It was the case of the Contractor that even after the amendment, the pre bid papers communicated along with letter dated 19.1.2004 have been sent without altering the "Sq.m." as "Cu.m." and the Contractor having not participated in the pre bid meeting held on 2.1.2004, based on the bid papers, has quoted the amount on "Sq.m." basis at ` 200/- per sq.m. It is the case of the Contractor that if it is on the "Cu.m." basis, the cost of one cu.m. of aggregates that prevailed was ` 750/- and for one cu.m. of bituminous macadam 77 kg of bitumen was required, which would cost ` 1236.70 and the total amount if it is calculated as per cu.m. would have been at the rate of ` 1,986.70 and after taking into consideration the cost of mixing the aggregates with bitumen in hot mix plant, handling, transportation to the site, laying, spreading, compacting, etc., the Contractor quoted ` 2,500/- per cu.m. in respect of S.No.503, immediately after noticing the alteration effected. However, the Contractor admits having received the letter dated 19.1.2004 (Ex.R7), which contains the corrigendum and addendum clearly stating that in respect of S.No.503, the quotation should be on "cu.m." basis instead of "sq.m." and it was only thereafter, on 9.2.2004, he has submitted his tender. 5.5. The case of the Contractor, as it is seen in the letter dated 18.12.2004 (Ex.R12), is that even though information regarding the amendment was received by the Contractor along with letter dated 19.1.2004 before submitting the tender, the Employer should have issued a revised Bill of Quantities schedule and therefore, in spite of receiving such letter dated 19.1.2004, the Contractor is not bound by the contents of the addendum. This stand of the Contractor is crystal clear, as it is seen in its letter dated 18.12.2004 (Ex.R12) addressed to the Employer in paragraph (3), which is as follows: