ABUL KALAM AZAD Vs. B S N L

JUDGEMENT

(1.) Tenders for the work of carriage of tower materials (40 meters x 60 meters) by mechanical transport from Jabalpur to different places in Assam were invited from eligible contractors by the Executive Engineer (C), BSNL, Civil Division, Guwahati. The estimated cost of the work was mentioned in the NIT to be Rs. 25,64,929.00. The time limit for completion was stipulated as one month. Under the NIT, a tenderer, to be eligible for consideration, was required to have satisfactorily and successfully completed at least three similar works each not less than Rs. 8.50 lakh under the Central Government / State Government or Public Sector Undertakings during the last one year. In the NIT, it was further stipulated that a tenderer would be required to deposit Rs. 5 lakhs as guarantee money apart from earnest money.

(2.) The writ petitioner being aggrieved by the incorporation of the above noted two conditions in the NIT, has instituted the present writ petition contending that the said two requirements apart from being arbitrary and unreasonable have been imposed by the respondent authority only with a view to favouring the respondent No. 5 for the grant of the contract. This Court acting on the basis of the statements made in the writ petition to the effect that pursuant to the NIT issued only one tender was received and the further statement that the contract had not yet been awarded, by an interim order dated 6.2.2004, had directed that the award of the contract in favour of the respondent No. 5 shall remains suspended. The respondent No. 5 thereafter had approached this Court for vacation of the interim order dated 6.2.2004 contending, inter alia, that the contract had already been granted to the said respondent No. 5 on 23.1.2004 and the same was in the process of execution when on account of the interim order dated 6.2.2004 the same had to be stopped. As the execution of the contract had come to a stand still and having regard to the public interest involved in the matter, this Court with the consent of the learned counsel for the parties, had taken up the writ petition itself for hearing; the hearing having concluded today, orders are being pronounced in open Court.

(3.) The primary thrust of the challenge made in the writ petition appears to be in respect of the two Clauses of the NIT (Notice Inviting Tender), i.e., the stipulation with regard to successful execution of three similar works of the value of Rs. 8.50 lakh in the preceding one year and secondly the condition imposing the requirement, in all tenderers, to furnish guarantee money to the extent of Rs. 5,00,000/-. Counsel for the petitioner has argued that the aforesaid two clauses of the NIT imposes wholly unreasonable requirements besides being arbitrary and unjust. The BSNL follows the CPWD Code and under the relevant Clause of the said Code what a tenderer is required to execute is three works of similar nature of the value of at least 30% of the estimated costs of the works for which the tenders were invited. According to the learned counsel, under the CPWD Manual, satisfactory completion of 3 such works are required to be made in the preceding 5 years whereas in the NIT such a requirement has been imposed in so far as the preceding year alone is concerned. Learned counsel for the petitioner has further contended that furnishing of guarantee money to the extent of Rs. 5 lakh along with the tender documents is not contemplated anywhere in the CPWD Code. According to the writ petitioner, the respondent authority, who had issued the NIT was not competent to incorporated any such condition in the NIT; yet the same has been so incorporated with an evil design to ensure that the contract goes in favour of a particular chosen person. On the aforesaid broad basis, it has been contended that the terms of the NIT and the grant of the contract in favour of the respondent No. 5 must be declared to be bad in law. The arguments advanced on behalf of the petitioner have been further sought to be fortified by reference to the pleadings made to the effect that in response to the NIT issued only one tenderer had submitted his tender, which figure subsequently stood corrected to two.