NCC LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present writ petition has been filed for the following reliefs

(2.) The broad facts of the case according to the petitioner are that pursuant to an NIT issued by the respondent-State for execution of work relating to restoration of Eastern Gandak Canal System including Gandak Barrage under Rashtriya Sam Vikash Yojna, the petitioner offered to perform the work at 44.53% of the estimated tender value of Rs. 310.54 crores. The rates in the BOQ specifically included the applicable royalty and duties. The total amount of the petitioner's bid came to Rs. 448, 83, 67, 313/- and for which a letter of acceptance dated 03.07.2009 was issued in favour of the petitioner. This was followed by an agreement dated 06.08.2009 entered into between the parties for a cost of Rs. 448, 83, 67, 313/-. The tender documents included the Instructions to Bidders ("ITB" for short) which formed part of the agreement and clause 13.1.2 thereof stipulated, inter alia, that all duties, taxes and other levies payable by the Contractor should be included in the rates, prices and total bid price submitted by the bidder. The General Conditions of Contract forming part of the agreement also provided vide clause 4A as follows

(3.) It appears that subsequently, however, the impugned letter No. 948 dated 106.2011 came to be issued by the Principal Secretary, Water Resources Department, Government of Bihar, Patna, according to which royalty would first have to be deducted from the estimated cost, i.e. the Schedule of Rates shown in the Bill of Quantities, and the declared percentage over the Schedule of Rates was to be applied only on the amount remaining after such deduction. Based on such circular, the impugned order dated 22.09.2015 was passed, in effect holding that the quoted 44.53% above the Schedule of Rates would be applicable after deduction of the royalty payable by the petitioner from the estimated tender value of Rs. 310.54 crores.