SHALIMAR CONSTRUCTIONS Vs. SKUAT (K) SHALIMAR, SRINAGAR

JUDGEMENT

(1.) Both these Petitions involve similar questions of facts and the law and are, thus, for the sake of convenience, decided by this common Judgment. For purpose of reference, the facts of WP(C) No. 693/2021 are relied upon.

(2.) The case of the Petitioner is that it had submitted the tender documents for the works with respect to which tenders were invited by the official Respondents in terms of E-Tender notices dated 28th of November, 2020; 8th of December, 2020; and 19th of December, 2020, strictly in accordance with the terms and conditions of the tender notices. Thereafter, the official Respondents, as stated, entertained the tender documents of the Petitioner-firm and, after opening of the tender documents, found the Petitioner-firm to be the lowest bidder. However, instead of issuing allotment orders in favour of the Petitioner-firm, the official Respondents, in terms of communications/notices dated 21st of January, 2021, informed the Petitioner- firm that before allotment order is issued in its favour, it is required to deposit additional security at 5% and 4% of the advertised cost in the shape of CDR/FDR/BG pledged to the Assistant Controller, Estates, as per the terms and conditions of E-NIT under reference. The aforesaid notices dated 21st of January, 2021 are stated to have followed by letter dated 5th of February, 2021, wherein the official Respondents informed the Petitioner-firm that in addition to 10% bill deposit, 20% more bill deposit shall be deducted from every running bill and that the Petitioner-firm should deposit 5% additional security deposit as per NIT. The Petitioner-firm is also claimed to have been asked to file an Affidavit for completion of the project including all low rate items without deviation and not to request for bill deposit till completion of the work. The Petitioner-firm was also told that the project needs to be completed as per allotted time period and that in case of delay, 1% penalty per month shall be imposed. Besides, it was also told that labour management plan is to be maintained by the construction agency. The aforesaid letter dated 5 th of February, 2021 was replied by the Petitioner-firm on 17th of February, 2021, wherein the Petitioner-firm stated that routine bill deposit of 10% was a norm and acceptable to it, but, the additional bill deposit of 20% amounted to direct violation of NIT and PWD Code of Works, thus not acceptable to the Petitioner-firm. The Petitioner-firm also stated that the additional bill security of 5% was not acceptable to it because as per the NIT, the Petitioner-firm had not to deposit the additional bill security of 5% and, instead, it was 5% for work at serial No. 1 and 4% for works at serial Nos. 2, 3 and 4. The Petitioner- firm is also stated to have referred to various circulars on the subject issued by the Government, wherein it has been circulated that the Contractors should not be asked for additional bill security for abnormally low bids. This reply submitted by the Petitioner-firm on 17th of February, 2021, however, was not considered by the official Respondents and, instead, the Works Committee of the SKAUST-K, Shalimar, Srinagar, in its meeting held on 24th of February, 2021, decided to put the works to fresh tender on various terms and conditions. Accordingly, fresh tenders were issued on 27th of February, 2021 and 16th of March, 2021. It is pleaded that since the official Respondents decided to put the works to fresh tender in respect of which the Petitioner-firm was found to be the lowest tenderer and proceeded to issue the fresh tender notices on 27th of February, 2021 and 16th of March, 2021, therefore, not only the decisions dated 2nd of February, 2021 and 24th of February, 2021, but also the fresh E- Tender notices issued on 27th of February, 2021 and 16th of March, 2021, as well as any decision taken thereafter towards the allotment of works to Respondents 10 to 13, have caused great prejudice to the rights and interests of the Petitioner-firm, constraining it to file the instant Petition.

(3.) Objections stand filed on behalf of Respondents 1 to 9. It is stated that since the Petitioner-firm did not accept/comply all the conditions as reflected in letter No. Au/Estates/2020-21/2093-94 and letter No. Au/Estates/2021-21/209-96, both dated 5th of February, 2021, and taking into consideration the fact that the execution of the Projects once allowed on very low/unworkable offered rates (in finishing items) of the lowest bidders will leave the Projects incomplete resulting in non-achievement of set targets and would entail disputes and litigation causing severe loss to public exchequer, the Works Committee of the University met again on 24th of February, 2021, wherein the Estates Officer (Member Secretary) apprised the members of the Works Committee that the recommendations of previous meeting held on 2nd of February, 2021 on the issue of unreasonable rates, as decided and recorded in the minutes of meeting, were conveyed to the lowest tenderers/contractors viz. M/s Shalimar Constructions/Petitioner in WP(C) No. 693/2021; and M/s Fayaz Ahmad/Petitioner in WP(C) No. 694/2021, but they have declined to accept the additional terms and conditions vide their response dated 17th of February, 2021 and 7th of February, 2021, respectively. It is pleaded that during the course of proceedings, it was realized that the lowest bidders are, thus consuming precious time of the University, resultantly, the Committee felt it necessary that expeditious steps are taken to ensure execution of above referred works during the current financial year so that funds may not get lapsed unreasonably. It was, as stated, after thorough deliberations on the matter that some decisions were unanimously agreed upon, which decisions of the Works Committee were conveyed to the Petitioners, but they did not agree to the same, thus forcing the Works Committee to decide for cancellation of the NITs referred to above in the interest of public exchequer in general and the University in particular. It is contended that the Works Committee, in these circumstances, recommended re-tendering of all the concerned works, which recommendations were duly approved by the Competent Authority as per norms. The re-tendering notices are, accordingly, stated to have been issued. In this factual discourse, the Respondents 1 to 9 have urged that they not only had justifiable, but compelling reasons to cancel the earlier tendering process and re-tender the works, therefore, no interference is warranted in the said process from this Court.