MEGA STAR SURVEY AND CONSULTANTS INDIA PVT LTD Vs. SECRETARY, MINISTRY OF ROAD TRANSPORT & HIGHWAYS GOVERNMENT OF INDIA; DIRECTOR GENERAL (RD), MINISTRY OF ROAD TRANSPORT & HIGHWAYS GOVERNMENT OF INDIA; CHIEF ENGINEER (P7), MINISTRY OF ROAD TRANSPORT & HIGHWAYS GOVERNMENT OF INDIA; CHIEF ENGINEER (S&R) (B

JUDGEMENT

(1.) The petitioner seeks for issuance of a Mandamus forbearing the official respondents from extending or assigning any new project works during the financial year 2015-2016 or thereafter to the seventh respondent without following the process of inviting tenders from the consultancy services for Authority's Engineer for supervision of NH (O) works in the State of Tamil Nadu on EPC mode and consequently direct the official respondents to issue fresh tenders inviting participation for consultancy services for Authority's Engineer for supervision of NH (O) works in the State of Tamil Nadu on EPC mode for the works for the financial year 2015-2016.

(2.) The petitioner is a private limited company engaged in supervision consultancy services. According to the petitioner company, they have participated in number of tenders floated by the Central as well as the State Government for supervision consultancy services. It is contended by the petitioner that the Government of India introduced Built, Operate and Transfer (BOT) Method under the Public Private Participation System, however, the system was found to be not viable for various reasons including the fact that it was quite expensive than the conventional contract system. Therefore, the Government of India adopted to shift to the Engineering, Procurement and Construction (EPC) mode of construction. Applying the said mode, the Government of India floated tenders for the works to be done in construction, strengthening and widening of National Highways. In order to have effective supervision of the works for which tenders were called for, the Government appointed an independent authority called 'Authority Engineer for Supervision' by outsourcing the supervision work. This is evident from clause 18 of the EPC agreement between the Government of India and the contractor which indicates that the appointment of the Authority's Engineer shall be made not later than 15 days from the date of this agreement. The Authority shall notify the appointment or replacement of the Authority's Engineer to the contractor.

(3.) According to the petitioner, the Government of India invited tender for consultancy services for supervision of NH (O) works for each State separately. The request for proposal (RFP) for Tamil Nadu was issued during March 2014 in which consultants have participated in the tender. The consultants had to quote 'single average percentage above or below the estimated percentage of 2% for roads and minor bridges and 3% for major bridges mentioned in Section 2 of RFP'. As far as the State of Tamil Nadu is concerned, the seventh respondent was declared as a successful bidder and the seventh respondent also commenced the consultancy work as per the terms and conditions of RFP.