FERRO CONCRETE CONSTRUCTION Vs. RAJASTHAN STATE ELECTRICITY

JUDGEMENT

(1.) WRIT Petitioner M/s Ferro Concrete Construction (India) Private Limited (for short, here in after, petitioner company), by this writ petition, accuses the Rajasthan State Electricity Board and its Deputy Chief Engineer (Civil) and the Executive Engineer (Civil), Construction Division No. II, Mahi Hydel Project of distributing state largesse, in the form of giving contract to respondent No. 4 M/s. Dhorajia Construction Company for excavation and slope treatment work of D/S side in Tail Pool and. Tail Pace Channel of Power House -H at Lilwani, Banswara, arbitrarily, unfairly, unreasonably and against public interest. By a Notice No. 13/86 -87, dated 23rd March, 1987, published in Rajasthan Patrika on 31st March, 1987, the Executive Engineer, Rajasthan State Electricity Board, Bagidora invited tenders from experienced firms of repute who had executed similar type of work previously for the aforesaid work The petitioner -company, respondent No. 4 and respondent No. 5 participated in the said tender. The tenders were opened on April 30 1987 and it was found that the tender of the petitioner -company was lowest for the execution of the said work with its offer at Rs. 30.10 lakhs as against Rs. 40 -28 lakhs of respondent No. 4 and Rs. 35.75 lakhs of respondent No. 5. After opening of the tenders, the Executive Engineer by his letter dated May 8, 1987 called the three tenderers for further negotiations on May 15, 1987 to submit fresh offer on the revised and new schedule of quantities. The new quotations were submitted by three tenderers and again quotation of the petitioner -company was the lowest. The second lower offer was of respondent No. 4 who quoted almost 17 32 per cent higher than the offer of the petitioner -company So far as respondent No. 5 was concerned, it is alleged that he was only a supporting tenderer for respondent No. 4. The Executive Engineer (Civil), Construction Division No. II, Mahi Hydel Project of Rajasthan State Electricity Board (for short, here in after, the Board) by his letter dated May 21, 1987 again called the three tenderers to the negotiation table on June 8, 1987. Mean while, it is alleged that respondent No. 4, who was second lowest tenderer, unilaterally reduced his quotation by more than 20.8 per cent approximately coming to Rs. 10/ - lakhs in order to bring his price bid just below the lowest quotation of the petitioner -company. The respondent No. 4 thus resorted to unfair and unethical practice. On June 10, 1987 all tenderers were again called for re -negotiations and were asked to submit their final offers for the work. The final offers were given on June 10, 1987 itself and the petitioner -company again stood lowest at Rs. 43,74,671/ - as compared to the -final offer of respondent No. 4 at Rs. 44,76,881/ -. While answering the quarries of the Executive Engineer made in his letter dated May 21, 1987, the petitioner -company had submitted by its letter dated June 7, 1987 a detailed construction programme along with the list of machinery and other clarifications asked for by the Executive Engineer. The petitioner -company has accused that the Board, its Deputy Chief Engineer (Civil) and the Executive Engineer malafide and with intention to favour the respondent No. 4, took a letter from the respondent No. 4 collusively reducing his lowest offer by about Rs. 1,05,000/ - so as to make it lower than that of the petitioner -company and thus obtained the contract for the said work by unfair means. The Board and its engineers took a long period of 40 days in taking a decision in favour of respondent No. 4. It is stated that the Board and its Engineers had no authority or jurisdiction to call for and accept a letter from the respondent No. 4 on July 20, 1987 without affording to the petitioner any opportunity and more so when the final offers had already been given on June 10, 1987 in which all the tenderers had participated and the petitioner -company was lowest in its tender. The petitioner -company has prayed that the award of the contract for the aforesaid work in favour of respondent No. 4 may be quashed and respondents Nos. 1 to 3 may be directed to accept the lowest tender of the petitioner -company for undertaking the aforesaid contract work.

(2.) A rule was issued to the respondents returnable on August 26, 1987. Appearance was made on behalf of the respondents and counsel for the parties stated on September 1, 1987 that the matter may be heard finally at the admission stage and accordingly the petition was heard on its merits. Mr. K.K. Kapoor, Deputy Chief Engineer, Mahi Hydel Project has filed affidavit dated 2 -9 -1987 that detailed letters had been issued to all three tenderers containing points of clarification and the tenderers were informed to attend for negotiations on May 15, 1987. The negotiations were held in the chamber of the Chief Engineer of the Board, during which apart from the Chief Engineer, the Deputy Chief Engineer, the Executive Engineer, the Senior Accounts Officer and representatives of three tenderers were present. All the three tenderers gave clarifications on the various issues by their respective letters and they also confirmed the revised 'G' Schedule quantities. It is admitted that respondent No. 4 by its letter dated May 29, 1987 modified its conditions and also revised the rates. The petitioner -company was invited for discussion along with construction planning on June 8, 1987. How ever, the petitioner -company's representatives attended on June 6, 1987 and discussion followed in the presence of the Deputy Chief Engineer and the Senior Accounts Officer. On June 9, 1987 representatives of the petitioner -company were apprised of the modified conditions and revised rates submitted by respondent No. 4 by its letter dated May 29, 1987. During the meeting representatives of the petitioner -company were given an opportunity and chance to give final offer. It was found appropriate that both the petitioner -company and respondent No. 4 should finally submit their offers and should give detailed construction programme and construction planning so that the competent authorities of the Board may judge the competence and capability of the tenderer -contractors to arrive at a decision. After receipt of the final offer from the petitioner -company and respondent No. 4 on June 10, 1987, offers were examined in detail at the level of the Executive Engineer, the Deputy Chief Engineer and finally by the Chief Engineer and after taking into consideration all relevant factors, which were germane to the contract, the Executive Engineer (respondent No. 3) recommended to the Deputy Chief Engineer (respondent No. 2) that the final offer of the respondent No. 4 be accepted. The Deputy Chief Engineer considered the recommendations of the Executive Engineer and sought certain clarifications and details from the Executive Engineer. After receiving the clarifications and details, the respondent No. 2 examined the offers and made his recommendations to the Chief Engineer on June 30, 1987. The Chief Engineer considered recommendations in detail and ordered that an attempt should be made to further narrow down the gap and that regarding de -watering the interest of the department should be further safeguarded in case quantum of work was reduced. The Chief Engineer also directed that respondent No. 4 should be called on that very day i.e. July 13, 1987 or the next day for discussion. Respondent No. 4 was informed to attend on July 21, 1987 but he actually attended on July 20,1987 and by his letter of the same date modified its earlier offer on the above points. Thereupon the Chief Engineer on July 28, 1987 approved tender of respondent No. 4 and consequently letter of intent and detailed work order was issued to respondent No. 4 on July 30, 1987 and August 7, 1987 respectively. It is shown that after taking into consideration all relevant factors inter alia the nature of the work, the efficiency and competence of the party including past performance and site acquaintance.it was considered to be in interest of the project to allot the work to respondent No. 4. It is stated that respondents Nos. 1 to 3 have acted most fairly and in the interest of project in allotting work to the respondent No. 4 and no favour was shown to it and all the tenderers were given full opportunity for satisfying about their experience, capability and competence to execute the work.

(3.) RESPONDENT No. 4 has emphasised that the type of excavation of rock which was involved in the tender was wholly outside the competence and expertise of the petitioner -company. So far as respondent No. 4 was concerned, he had in the past actually done the entire open -excavation of about 1,35,000 cubic meters worth about a crore of rupees on this site itself. The position of shafts and tunnels required a very skilled expertise in the matter of rock blasting otherwise the whole structure would be in jeopardy and in this matter of excavation from such sensitive rock blasting, the petitioner -company's experience was minimal.