SSMPLJRT (JV) Vs. MAHANADI COALFIELDS LTD AND ANOTHER

JUDGEMENT

(1.) The General Manager, (CMC), Mahanadi Coalfields Ltd., opposite party no.2 floated an e-tender vide NIT No. MCL/BSP/GM(CMC).NIT-738/2016/330 dated 25.06.2016 for "Hiring of Tippers for mechanical transportation of crushed coal from Kulda CHP/Stocks to Kanika Railway Sinding of Kulda OCP, Basundhara Area for a total quantity of 42.00 lakh Tes." for the estimated cost of Rs.92,25,78,300/- and the period of contract was 1095 days. The petitioner, being a company registered under the Companies Act, participated in the said tender and through reverse bidding became L-1. The petitioner was called upon on 04.08.2016 to deposit the bank guarantee. As things stood thus, the petitioner, aggrieved by Clause-4.6 of the General Terms and Conditions of the tender call notice by which it has been stipulated that the petitioner has to deposit an additional performance security over the estimated cost of the work, has approached this Court by means of this writ application.

(2.) Mr. S. Mohanty, learned counsel for the petitioner contended that Clause-4 of the NIT specifies about the security deposit, which is divided into two parts, (a) performance security (b) retention of money. The said Clause of 4.2 and 4.6 are extracted herein below:

(3.) Mr. S.D. Das, learned Senior Counsel appearing for the opposite parties justified the action of the authority in inserting Clause-4.6 in the general condition of contract and urged that the conditions contained in the tender call notice inviting tender are essential requirements and after reading the tender conditions the petitioner submitted a letter requesting to accept its bid and agreed to furnish performance security within 28 days from the date of letter of acceptance and to commence the work within 10 days from the date of issue of letter of acceptance. It is urged that the petitioner having accepted the conditions, cannot turn around and state that Clause-4.6 is unreasonable, arbitrary and contrary to the provisions of law. The incorporation of Clause 4.6 has been made as per the Manual for e-procurement of Works and Services/guidelines, circulated by General Manager (Civil)/HOD, CIL, Kolkata, Vide letter under reference No. CIL/Civil/192/488 dated 13.01.2016 for implementation of Reverse Auction at CIL and subsidiary companies, which have been approved by the Company Board in its 177th meeting, held on 26.05.2016 on the basis of the revised Contract Management Manual circulated by General Manager (Civil)/HOD, CIL, Kolkata, vide letter under reference No. CIL/Civil/31/Pt.IB/476 dated 01./02.12.2014. Though this provision has been recently incorporated in the NIT of Service Tenders floated by the MCL, but as a matter of fact, this provision is quite prevalent in other organizations and has been incorporated in the works contracts done under Civil Engineering Manual in MCL. The Central Vigilance Commission in its guidelines published in 2002 for improvement in the award of contracts has also pointed out in Clause-15 with regard to reasonableness of price/market rate justification. The incorporation of Clause-15 has been made with a primary motive to discourage the non-serious and financially not so sound bidders from bidding process and also to prevent any loss to the company in the event of abandoning of work by the contractor on the plea of low rate quoted by him. Therefore, it is contended that there is no violation of Articles 14 and 19 (1)(g) of the Constitution of India. The tender documents have been published well in advance as per the approved procedure of the Company. In response to the same, as many as 10 bidders have participated in the bidding process. The petitioner, being the L-1 and agreed to the conditions stipulated in the tender notice, cannot approach this Court by filing the present writ application on the plea that the incorporation of Clause-4.6 is contrary to the provisions of law.