Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 WP(C) NO. 27609 OF 2022 PETITIONER:
MIDLAND ENGINEERING AND CONTRACTING COMPANY, VARIKODAN BUILDING, VALIYAPARAMBA,DOWN HILL.P.O, MALAPPURAM.REP. BY ITS MANAGING PARTNER, PIN – 676519 BY ADVS.
P.SHANES METHAR N.KRISHNA PRASAD RESPONDENTS:
1 KERALA WATER AUTHORITY JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM.
REPRESENTED BY ITS MANAGING DIRECTOR, PIN – 695033 2 CHIEF ENGINEER KERALA WATER AUTHORITY (NORTHERN REGION), O/O.
CHIEF ENGINEER, MALAPARAMBA, KOZHIKODE., PIN – 673017 3 SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, PH CIRCLE KOZHIKODE, MALAPARAMBA.P.O, KOZHIKODE., PIN – 673009 BY ADV P.M.JOHNY, SC, KERALA WATER AUTHORITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2023, ALONG WITH WP(C).14038/2022, 14469/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 WP(C) NO. 14038 OF 2022 PETITIONER:
MIDLAND ENGINEERING AND CONTRACTING COMPANY VARIKODAN BUILDING, VALIYAPARAMBA, DOWN HILL.P.O, MALAPPURAM.
REP. BY ITS MANAGING PARTNER, PIN – 676519 BY ADVS.
P.SHANES METHAR N.KRISHNA PRASAD S.RAMESH BABU (SR.)
RESPONDENTS:
1 KERALA WATER AUTHORITY JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM.
REPRESENTED BY ITS MANAGING DIRECTOR.
PIN – 695033 2 CHIEF ENGINEER KERALA WATER AUTHORITY (NORTHERN REGION), O/O. CHIEF ENGINEER, MALAPARAMBA, KOZHIKODE., PIN – 673017 3 SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, PH CIRCLE KOZHIKODE, MALAPARAMBA.P.O, KOZHIKODE., PIN – 673009 *ADDL.4 PULKKODIKOOTTAM SAMSKARIKA VEDI REG.NO. KKD/CA/1374/2014,PAYYOLI,KOZHIKODE, REP.BY CHAIRMAN, M.SAMAD (*ADDL.R4 IS IMPLEADED AS PER ORDER DATED 17.08.2022 IN IA 1/2022 IN WP(C) NO.
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14038/2022.)
*ADDL.5 SECRETARY, PAYYOLI MUNCIPALITY,KOZHIKODE PIN 673522 (*ADDL. R5 IS IMPLEADED AS PER ORDER DATED 18.01.2023 IN IA 2/2022 IN WP(C) NO.
14038/2022.)
BY ADVS.
P.M.JOHNY, SC, KERALA WATER AUTHORITY S.R.SREEJITH K.REEHA KHADER NARAYANAN M.K.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2023, ALONG WITH WP(C).27609/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 WP(C) NO. 14469 OF 2022 PETITIONER:
MIDLAND ENGINEERING AND CONTRACTING COMPANY VARIKKODAN BUILDING, VALIYAPARAMBA ROAD, DOWN HILL.P.O., MALAPPURAM.
REPRESENTED BY ITS MANAGING PARTNER, PIN – 676519 BY ADVS.
P.SHANES METHAR N.KRISHNA PRASAD RESPONDENTS:
1 KERALA WATER AUTHORITY JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM.
REPRESENTED BY ITS MANAGING DIRECTOR, PIN – 695033 2 THE CHIEF ENGINEER KERALA WATER AUTHORITY (NORTHERN REGION), O/O. CHIEF ENGINEER, MALAPARAMBA, KOZHIKODE, PIN – 673817 3 SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, PH CIRCLE PALAKKAD, KALMANDAPAM, PALAKKAD, PIN – 678001 4 ADDL.R4: RAJEEV P. , AGED 39 YEARS, S/O N.KRISHNANKUTTY, RESIDING AT 'ROHINI', KERALASSERY, PALAKKAD (ADDL.R4 IS IMPLEADED AS PER ORDER DATED 09-01- 2023 IN IA 1/2023)
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BY ADVS.
P.M.JOHNY, SC, KERALA WATER AUTHORITY J.VISHNU ANU BALAKRISHNAN NAMBIAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2023, ALONG WITH WP(C).27609/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 WP(C) NO. 15638 OF 2022 PETITIONER:
MIDLAND ENGINEERING AND CONTRACTING COMPANY VARIKKODAN BUILDING, VALIYAPARAMBA, DOWN HILL.P.O., MALAPPURAM. PIN – 676519 REPRESENTED BY ITS MANAGING PARTNER., BY ADVS.
P.SHANES METHAR N.KRISHNA PRASAD RESPONDENTS:
1 KERALA WATER AUTHORITY JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR., PIN – 695033 2 CHIEF ENGINEER KERALA WATER AUTHORITY (NORTHERN REGION), O/O. CHIEF ENGINEER, MALAPARAMBA, KOZHIKODE., PIN – 673017 3 SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, PH CIRCLE KOZHIKODE, MALAPARAMBA.P.O., KOZHIKODE, PIN – 673009 BY ADV P.M.JOHNY, SC, KERALA WATER AUTHORITY
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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2023, ALONG WITH WP(C).27609/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT [WP(C) Nos.27609/2022, 14038/2022, 14469/2022, 15638/2022] This order of mine shall dispose of four writ petitions.
2.
Challenge has been laid to the communications (Ext.P5) of the Kerala Water Authority to execute the agreement and start the work by reducing the tender price by relying upon Government Order dated 01.09.2016 envisaging tender excess guidelines for approval of tender by competent authorities.
3.
Petitioner is a partnership firm and a work contractor undertaking various projects of higher stakes.
Kerala Water authority in pursuance of the resolution dated 20.03.2021 and letter dated 08.11.2021 issued notices inviting tenders for augmentation of water supply scheme to various Panchayat works, to be submitted before the last date. Name of the works undertaken by the petitioner reads as follows:
“I) WPC 14038/2022 EXHIBIT P5 – 30.3.2022
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NAME OF WORK UWSS 2017-18 -WSS TO PAYYOLI COASTAL AREA IN KOZHIKODE DISTRICT DESIGN & CONSTRUCTION OF 14.5 LL OHSR AT GTHS GROUND PAYYOLI, SUPPLY, LAYING, TESTING, AND COMMISSIONING OF 300MM DI CLEAR WATER GRAVITY MAIN TO OHSR, AND DISTRIBUTION SYSTEM INCLUDING ROAD RESTORATION.
ii)WPC 14469/2022 EXHIBIT P5 – 30.3.2022 NAME OF WORK: JAL JEEVAN MISSION 2020 - 21 WSS TO KERALASSERY PANCHAYATHS - SUPPLYING, LAYING, TESTING, COMMISSIONING AND MAINTENANCE OF DISTRIBUTION SYSTEM WITH PROVIDING FHTCS-4140 Nos.
iii)WPC 15638/2022 - EXHIBIT P5- 30 04 2022 NAME OF WORK: JJM -PHASE II, 2021 -22- AUGMENTATION OF WATER SUPPLY SCHEME IN PADINJARATHARA PANCHAYATH- PROVIDING FHTCS IN PADINJARATHARA PANCHAYATH IN WAYANAD DISTRICT.
iv)WPC 27609/2022 EXHIBIT P5- 18 02 2022 NAME OF WORK JJM(2021-22) PHASE II - THIRUNELLY
GRAMA
PANCHAYATH- AUGUMENTATION OF WSS TO THIRUNELLY AND PROVIDING FHTCS ” 4.
The e-tender notice envisaged that the selection process would be based upon Quality and Cost
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Based Selection (QCBS) method for projects greater than Rupees Five Crores as per the Board Resolution 11141 dated 23.02.2021.
The detailed tender notice accompanied by the aforementioned e-notice envisaged the name of the project, work and the process of the receipt of the tenders containing technical and Financial bids. It envisaged that the technical bids will be opened in the presence of the bidder or the authorised representative by the Superintendent Engineer and thereafter on receipt of the communication from the Superintendent Engineer of acceptance of technical bid tenders would be informed of opening the financial bids.
Condition No.7 of the detailed tender notice also re- iterated that the tender would be awarded to the bidder with the QCBS method i.e., the “Score Pattern” which was attached as annexure and shown in 7.16.1 which further envisaged various stages i.e., stage 1 to stage 4 – evaluation of technical bid, marks obtained in technical bid, evaluation of financial bid, conversion of financial bid amount to score, combined technical and financial
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score. Condition Number 7.9 also prescribed that the price bid would be submitted only in the format of Bill of Quantity (BOQ) and on variation of the price bid, as per clause 7.9.3, the tenderer was bound to carry out the work as per the specification at ‘Quoted Rate’ which was further qualified that nothing inferior to the specification as per the scope of work included as part of the Notice Inviting Tender (NIT) shall be acceptable.
5. Petitioner along with other bidders submitted the bids in pursuance to the notice inviting tenders containing detailed tender notice and the conditions and had undergone all the stages noticed above and vide impugned communications was called upon to enter into an agreement but with a rider to reduce the amount which according to them was 4.17% above the tendered Probable Amount of Contract. It is the aforementioned conditions which is under challenge in the present writ petitions on the following points:
1)Rules of the game once begun cannot be deviated at the time of awarding of the work.
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2) The impugned condition in the communications was based upon the decision of the Government dated 01.09.2006 which was on the pattern of “Two Bids System”.
3) The said two bids system was done away with as per the Board Resolution 11141 in the 419th meeting held on 23.02.2021 which was made public on 20.03.2021 where authority after discussing the matter in detail, decided to implement the quality and cause based selection i.e., QCBS method of selecting the bidders mandatorily for all tenders with Tender Probable Amount of Contract (TPAC) above Rupees Five Crores in the Kerala Water Authority.
4) The aforementioned condition was further modified by communication dated 08.11.2021 whereby the existing QCBS Score sheet, Format Q3, Format Q4 were modified.
Ext.P4 was under QCBS format.
6.
Petitioner is the rank No.1 bidder and Lowest L1 in W.P(C).15638/22, but not in other matters and the course adopted by the respondent No.3 is against the law of contract. Thus, the act of respondent No.3 is beyond jurisdiction as the provisions of the notice inviting tender
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cannot be departed or deviated.
7.
On the other hand, learned Standing Counsel representing the respondent No.3 supported the impugned communications on various points.
1) QSBS is the only guidelines. Rate was fixed in accordance with Ext.P1. Therefore, they are not bound by the rate quoted by rank No.1. Clause 2C of the Government Letter dated 01.09.2016 dealt with admissible tender excess wherein all agencies taking up the public works were required to ensure that the tender of the lowest bidder will be accepted after following the criteria, that is either of the three conditions i.e., the Quated Rate of the lowest bidder or PWD local market rates or current daily schedule rates with latest cost index plus 10% talerance limit.
2) Kerala Water Authority is bound to follow the modalities of the tender procedure prevailing in the Public Works Department, Government of Kerala for award of the contracts. Therefore, terms and
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conditions of the PWD Manual were made applicable to the contracts to be executed by the Kerala Water Authority.
3) The rate quoted by the petitioner contractor was more than the TPAC i.e., the Tender Probable Amount of Contract. QCBS system is only for the selecting tender and not for selecting the rate of the tender.
4) QCBS and the tender conditions are only for the purpose of entitling the best tender but the rate at which the work can be awarded is based as per the Government Order.
5) Tenderer is at liberty either to accept or reject the work if the awarded amount is less than the Quoted Rate. In other words, there is no compulsion on the tenderer to accept the offer rates if less than Quoted Rates.
6) Terms and conditions of tender do not contain any condition that the work would be allotted to the lowest rank at L1 rate. There is no arbitrariness on
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the part of the tender committee and therefore this Court should be circumspect in causing interference under Article 226 of the Constitution of India.
There is no deviation from the NIT conditions and urged this Court for dismissal of the writ petitions.
8.
I have heard learned counsel for the parties and appraised the paper books.
9.
In order to appreciate the arguments of the respective parties, it would be necessary for this Court to refer to the terms and conditions of the notice inviting tenders and resolution dated 23.02.2021:
1. E-TENDER NOTICE The Superintending Engineer. P.H Circle, Kerala Water Authority, Kozhikode invites sealed competitive electronic tenders in TWO level system for the following work from Registered Class A contractors of Kerala Water Authority or contractors Registered in other departments in Kerala State / in other states in India/ in equivalent class and manufacturers eligible for A class license from Kerala Water Authority/reputed contracting firms in India.
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The tenderers shall have experience in implementing similar works. The selection process will be based on Quality and Cost Based Selection (QCBS) method for projects greater than Rs5 crores as per Board Resolution No.
11141 dated 23/02/20217.
XXXXXXX XXXXXXX KERALA WATER AUTHORITY 2.DETAILED TENDER NOTICE XXXXXX XXXXXX 7.
The selection process will be based on Quality and Cost Based Selection (
Q CBS)
method for projects greater than Rs 5 crores as per Board Resolution No.11141 dated 23/02/2021. The tender will be awarded to the bidder with the highest score based on QCBS method. Score pattern of QCBS is attached as annexure with the bid document and sample calculation of QCBS method is shown in 7.16.1.
Bidder shall have to qualify pre-qualification criteria of this tender document for the work under reference. Bidder shall submit the required supporting documents relevant to qualification criteria, for technical evaluation of the bid.
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KERALA WATER AUTHORITY 7.TENDER CONDITIONS:PART-1 XXXXXXX XXXXXXX XXXXXXX 7.9.3 VARIATION OF PRICE BID The tenderer is bound to carry out the work as per the specification at the quoted rate. Nothing inferior to specification as per the scope of work included as acceptable. Price variation on any account shall not be permitted of this NIT shall be not explicitly specified otherwise in this NIT and the tenderer is expected to follow sound engineering practices in his designs and cost calculations. Changes in statutory taxes/levies, if any, shall be applied on cost of pipe in case of pipeline works, involving pipe supply, In all such cases the duties, levies, and taxes in percentage that he has considered in the quoted amount and the cost of pipes shall be declared by the tenderer while subnjung his price bid. Any escalation/reduction in statutory duties and levies will be applied only on the basic price of pipes and specials. No escalation in statutory taxes, duties and levies etc. shall be allowed beyond the approved period as per the procurement schedule, accepted and included in the agreement.
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xxxxxxxx xxxxxxxx 7.16.1 Sample calculation of Quality and Cost Based Selection (QCBS) method Scoring pattern followed depends on the type and requirement of the project.
Stage 1 : Technical Bid Evaluation Bidder details Technical mark obtained Bidder 1 90 Bidder 2 80 Bidder 3 70 Stage 2 Financial Bid Evaluation Bidder details Financial Bid Amount Bidder 1 1,50,000 Bidder 2 1,30,000 Bidder 3 1,10,000 Stage 3: Conversion of Financial Bid amount to score Bidder details Financial Bid Amount Financial Score (LFB-F x 100) Bidder 1 1,50,000110000
150000
x 100=73.33 Bidder 2 1,30,00010000/130000
x 100=84.62 Bidder 3 1,10,000 100 LFB-Lowest Financial Bid, F-Quoted Amount Stage 4: Combined Technical and nancial score (CIFS) Bidder details Applying weights for Technical CIFS Evaluated rank of the bidder
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and Financial Score Weightage 50:50 Bidder 1 90x50/100+7 3.33 x 50/100 81.67 Rank 3 Bidder 2 80x50/100+8 4.62 x 50/100 82.31 Rank 2 Bidder 3 70x50/100+1 00 x 50/100 85 Rank 1 Weightage 60:40 Bidder 1 90x60/100+7 3.33 x 40/100 Rank 1 Bidder 2 80x60/100+8 4.62 x 40/100 Rank 3 Bidder 3 70x60/100+1 00 x 40/100 Rank 2 Weightage 70:30 Bidder 1 90x70/100+7 3.33 x 30/100 84.99 Rank 1 Bidder 2 80x70/100+8 4.62 x 30/100 81.39 Rank 2 Bidder 3 70x70/100+1 00 x 30/100 79 Rank 3 “Website:http://
www.kwa.kerala.gov.in
Fax:91-0471-2324903 Tel:0471-2328654 KERALA WATER AUTHORITY Jalabhavan Thiruvananthapuram-695033 Kerala PROCEEDING OF THE MANAGING DIRECTOR
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Sub:- Implementation of Quality and Cost Based Selection (QCBS) method of selecting bidders in Kerala Water Authority, Tendering of Civil, Electrical and
Mechanical works together for
comprehensive water supply schemes, Modification of existing NIT clause 7.14- Orders
Issued
-
Reg _________________________________________________ No.3334/AE(TMU)/2021/KWA Dated:20.03.2021 ___________________________________________________________ Read:- Resolution No.11141 of the 419th meeting of KWA held on 23/02/2021 Kerala Water Authority is responsible to complete many high valued projects to extent piped water supply and sewerage system across the state. In order to bring about a system, in which these projects are completed in a time bound manner using modern technology, increased output benefitting more population, the recommendations for modifying the bid selection criteria and monitoring was placed before the Authority in its 419th meeting held on 23/02/2021 and the Authority resolved to approve the recommendations vide resolution number 11141.
1.Implementation of Quality and Cost Based Selection (QCBS) method of selecting bidders in Kerala Water Authority
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Kerala Water Authority has been following a standard bid document approved by the Board (Mother NIT) for all works and the lower limit of pre qualification tender for all works (except Water Treatment Plant and Sewage Treatment Plant) was raised to 5 crores. The tender submitted by the tenderer / firm are evaluated in two phases. Phase 1 - Technical evaluation and Pre qualification of tenderers and Phase 2- Evaluation of price bid of the prequalified tenderers. Presently, Kerala Water Authority is following L1 system under which lowest bidder is given the contract. Construction of water supply infrastructure project and sewerage projects are having both complexity and high impact and hence L1 system may not be the most appropriate method for delivering the results taking into account of the high impact of the project. In order to get complex technological solutions at the best prices for the larger benefit of public, Quality and cost-Based Selection (QCBS) as an alternative strategy for bidding has to be considered.
The Authority resolved to implement Quality and Cost Based Selection (QCBS) method of selecting bidders mandatorily for all tenders with Tender Probable Amount of Contract (TPAC) above Rs.5 crores in KWA.
2.Tendering of Civil, Electrical and Mechanical
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works together for comprehensive water supply schemes The Authority discussed the present tendering method of comprehensive water supply scheme in Kerala Water Authority in which Civil, Electrical and Mechanical works are tendered separately. The Authority observed that the delay in completing any one of the above works will affect the successful time bound completion and commissioning of the whole project. Hence the Authority resolved that Civil, Electrical and Mechanical works shall be tendered together to avoid delay, cost overrun, loss of production, revenue etc.
Bidders having independent experience in civil, electrical and mechanical works can associate in the form of Joint Venture (JV) to execute the work.
3. Modification of existing NIT clause 7.14 As per the existing NIT Clause 7.14 the contractor shall prepare a CPM chart along with the detailed schedule bar chart for implementation of the work and submit along with the tender. For timely completion of works proper scheduling and coordination of all tasks, keeping track of the progress of the work etc are necessary throughout the project. For effective planning, scheduling and execution of
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different activities simultaneously to complete the work within the stipulated time work schedule in CPM PERT, represented in GANTT Chart, AON diagram shall also be prepared by the Tendering Authority.
For the effective implementation of the projects, the Authority resolved to modify the existing NIT Clause 7.14 as follows:
Clause No.
Existing Clause Modified Clause 7.14 The work shall be completed in all respects within…..
months from the date of award of work. This period of execution is inclusive of the monsoon season.
CPM chart along with the detailed schedule
bar chart shall also be furnished with the tender.
The schedule
bar chart
shall indicate
the weightage of each element/activity with respect to the total quoted amount for the project.
The work shall be completed in all respects within....months from the date of award of work. This period of execution is inclusive of the monsoon
season.
The
Contractor shall follow the work
schedule prepared by the Tendering Authority in
CPM
PERT, which will be made available to the contractor in the form of GANTT chart and AON diagram provided with
the
bid document
to complete the work within
the stipulated
time period.
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The Authority also resolved in common to modify / include necessary clauses in the existing Mother NIT to implement the above said suggestions to complete all works on time.
Under these circumstances, sanction is hereby accorded for the following 1. To implement Quality and Cost Based Selection (QCBS) method of selecũng bidders mandatorily for all tenders with Tender Probable Amount of Contract (TPAC) above Rs.
5 crores in KWA.
2. Civil, Electrical and Mechanical works shall be tendered together to avoid delay, cost overrun, loss of production, revenue etc.
Bidders having independent experience in civil, electrical and mechanical works can associate in the form of Joint Venture (JV) to execute the work.
3. Modify existing NIT Clause 7.14 as follows:
Clause No.
Existing Clause Modified Clause The work shall be completed in all respects within....
..months from the date of award of work. This period The work shall be completed in all respects within.....months from the date of award of work. This
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7.14 of execution is inclusive of the monsoon season.
CPM chart along with the detailed schedule
bar chart shall also be furnished with the tender. The schedule
bar chart
shall indicate
the weightage
of each element/activity with respect to the total quoted amount for the project.
period of execution is inclusive of the monsoon
season.
The
Contractor shall follow the work
schedule prepared by the Tendering Authority in CPM / PERT, which will be made available to the contractor in the form of GANTT chart and AON diagram provided with
the
bid document
to complete the work within
the stipulated
time period.
Sanction is also accorded to modify, include necessary clauses in the existing Mother NIT to implement the above said suggestions to complete all works on time. All tendering officers are hereby directed to follow the above in all future tenders.
Sd/- Venkatesapathy S. IAS Managing Director
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10.
On perusal of the terms and conditions of the notice and resolution ibid it is evident that the Kerala Water Authority in unison decided for the purpose of carrying out the tender works to implement the QCBS system, i.e., 60% technical and 40% financial and for that, clause 7.16.1 reproduced above envisaged the various stages of both technical as well as financial works. By noticing the aforementioned conditions, the petitioner submitted the tender well before the last date along with the requisite formalities and deposit. Along with the petitioner there were three more tenders. Their technical bids as per the procedure of the condition were evaluated by the Superintend Engineer and thereafter financial bids were opened in their presence. It was only thereafter petitioner was found to be successful by obtaining rank No.1. Till such time there was no difficulty either for the Kerala Water Authority or for the petitioner to go ahead with the project and also by executing the purported agreement containing certain conditions for completion of the work within the time
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line.
11.
However vide impugned communication, the contents of one of the letter dated 30.04.2022 which is extracted hereinbelow, respondents deviated from the conditions of the tender and followed the old pattern of two bids system strictly as per the letter dated 01.09.2016:
“KERALA WATER AUTHORITY Office of the Superintending Engineer, P.H.
Circle, Kozhikode, Malaparamba P.O, Pin-673 009.
No 1421/D5/2021/PHC- KKD Dated 30.04 2022 From The Superintending Engineer To Midland Engineering and Contracting Company Varikodan Building Down Hill Malappuram Sir, Sub:- JJM PHASE 11, 2021-22 Augmentation of Water Supply Scheme to Padinjarathara Panchayath Providing FHTCs in Padinjarathara Panchayath in Wayanad District5640 FHTC) Revised Work Order Issued - Reg
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Ref:- 1 AS No GOIRI) No.489/2021/WRD dated 18/09/2021 for Rs 4650 lakhs 2 TS No Reg 15347/2021-22 dated, 14/12/2021 of The Chief Engineer NR, KWA, Kozhikode for Rs 4650 lakhs 3 Tender No. SE/PHC/KKD/19/2021-22 Dtd 17/12/2021 4. Order No KWACENR/D1W/JJM2021-22/ PH2/ PDJR Jaled 14/02/2022 of Chief Engineer (NR) Kozhikode 5.
This
office
work
order
No.
1421/D5/2021/PHC-KKD Dated 17 02.2022 6 This office letter NO 1421/D5/2021/PHC-KKD Dated 19.04.2022 7 Order No KWACENR/D1W/JJM2021-22/PH2 /PDJR dated 27/04/2022 of Chief Engineer (NR) Kozhikode With reference to the above, you are hereby informed that your tender for the above work is accepted at an amount of Rs.
31,04,20,361.00/- (Rupees Thirty one Crores Four Laklis twenty Thousand Three Hundred and Sixty One only) which is 4.17% above
the
tendered
PAC
of Rs.
29,80,08,258.12/-.
You are directed to attend this office on or before 13/05/2022 with required Kerala Stamp
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paper worth Rs.1,00,000/- (0.1% of accepted PAC, Max Rs 1,00,000) to cule agreement and to start the work after getting necessary instructions from the Executive Engineer PH Division Sulthan Bathery of Rs. 93,13,000/- (Rupees Ninety Three lakh Thirteen Thousand only). At least fifty percent (50%) of this shall be in the form of Treasury Fixed Deposit and the balance in the form of Bank Guarantee and produce the pass book duly pledged in favour Superintending Engineer, PH Circle, Kozhikode for fulfilment of contract. It is informed that no interest shall be payable by KWA upon the security deposit or amount payable to the contractor under the contract.
The EMD furnished along with tender will be released on receipt of the Performance guarantee and written request. You are not allowed to convert the EMD submitted by you as Performance Guarantee 2 Any failure in this direction will be liable to result in the forfeiture of your offer, Permanent Earnest Money and the cancellation of the proposed contract and the contractor shall be able to pay the Authority the entire loss that may be caused to Authority by the re-tender or the rearrangement of the work or otherwise consequent on the contractor’s failure to execute the agreement or execute the work as provided for in the clause of the Notice Inviting
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Tender and all such loss shall be recovered from the contractor under the provision of the Revenue Recovery Act or otherwise 3 It must be understood that on no account the rates once fixed will be increased Payment will be made as per the availability of funds for the scheme.
4 The work should be completed in all respects within 24 Months from the date of work order.
5. All terms and conditions of contract and special condition shall be binding on the contract.
6 The contractor shall take fer charge of the site within 10 days after executing agreement and commence the work 7. The Contractor should complete the work in all respect as per scope of work within the accepted PAC of Rs.31,04,20,361.00/- 8 The contractor shall engage a licensed plumber to lay service lines in FHTCs as per the judgment in WPC18399/2020 dated 08/09/2020 of the High Court of Kerala 9 Payment will be made to the contractor for the total value of the work plus applicable GST 10. 10% of Accepted PAC is to be secured by beneficiaries This can be in the form of cash, kind, labour or materials. Hence if beneficiaries
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contribution is in any form other than cash such items will be accounted accordingly In such case measurements will be made separately and the contractor will be entitled for payments of such measurements Yours faithfully, Dr Gireesan P Superintending Engineer Copy To 1) Chief Engineer (NR), Kerala Water Authority, Kozhikode for favour of information 2) Executive Engineer, PH Division, KWA, Sulthan Bathery for necessary action The date of handing over the site to the contractor shall be reported to this office The cost for geo tagging (@Rs. 20), Statutory fees for water connection(@Rs.575/” 12.
This Court while admitting the writ petitions issued the interim order by directing the respondents to defer the execution of the works agreement pending disposal of the writ petitions. It is settled law that the terms and conditions of the tender cannot be deviated in mid way; in other words, once the rule of business has started it cannot be deviated as per the choice of the authority competent to accept the tender, after
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undergoing the rigmarole/process of examination of both technical and financial bids. This is precisely what has been done giving a cause to the petitioner to approach this Court, which in my view it is a prima facie act of not only arbitrariness but contumacious. The whole purpose of awarding the work is to provide water supply to various Panchayats or the public living in the particular area. But it has been seen that the litigation at the hand of the State Government is sometimes becomes inevitable when certain stringent conditions which are unknown to the rules of contract are unnecessarily being implored. It cannot be countenanced that such conditions can go unnoticed from the scrutiny of the Court while exercising the power of judicial review under Article 226 of the Constitution of India.
13. I am of the view that the impugned communication directing the petitioner to reduce the Quoted Rate strictly not as per the terms and conditions of the tender by applying the contents of Ext.P1
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Government Order dated 01.09.2016 is not only incorrigible
but fallacious
and
contumacious.
Accordingly, the said condition in the impugned orders is hereby quashed. Writ petitions are allowed. Writ in the nature of mandamus is issued to the respondents to issue fresh work orders to the petitioner at their Quoted Rate and enter into agreements accordingly, so that the petitioner contractor is able to carry out the contract within the time line.
Sd/- AMIT RAWAL JUDGE vv
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APPENDIX OF WP(C) 14038/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE G.O.(P) NO.
133/2016/FIN DATED 01.09.2016 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.3334/AE(TMU)/2021/KWA DATED 20.03.2021 OF THE MANAGING DIRECTOR, KWA EXHIBIT P3 TRUE COPY OF THE CORRESPONDENCE NO.
3334/AE(TMU)/2021/KWA DATED 08.11.2021 EXHIBIT P4 TRUE COPY OF THE TENDER NOTICE- E- TENDER NO. SE/PHC/KKD/18/2021-22 OF THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE SELECTION NOTICE NO.
D6-2912/2018 DATED 11.03.2022 ISSUED BY THE 3RD RESPONDENT
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APPENDIX OF WP(C) 14469/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF G.O.(P) NO.133/2016/FIN DATED 01.09.2016 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.
3334/AE(TMU)/2021/KWA DATED 20.03.2021 OF THE MANAGING DIRECTOR, KWA EXHIBIT P3 TRUE COPY OF THE CORRESPONDENCE NO.
3334/AE(TMU)/2021/KWA DATED 08.11.2021 EXHIBIT 4 TRUE COPY OF THE TENDER NOTICE TENDER NO.42/21-22/SE/PHC/PKD OF 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE SELECTION NOTICE NO.
KWA/PHC/PKD/JJM/KERALASSERY/21-22
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APPENDIX OF WP(C) 15638/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE G.O.(P) NO. 133/2016 DATED 1.09.2016 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE MD, KWA DATED 20.3.2021 EXHIBIT P3 TRUE COPY OF THE LETTER DATED 08.11.2021 OF THE MD, KWA EXHIBIT P4 TRUE COPY OF THE TENDER NOTICE - E TENDER NO.SE/PHC/KKD/19/2021-22 OF THE 3RD RESPONDENT (RELEVANT PAGES) EXHIBIT P5 TRUE COPY OF THE SELECTION NOTICE (LETTER NO. 1421/D5/2021/PHC-KKD) DATED 30.4.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE GENERAL FINANCIAL RULES 2017
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APPENDIX OF WP(C) 27609/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE G.O.(P) NO.
133/2016/FIN DATED 01.09.2016 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR, KWA DATED 20.03.2021 EXHIBIT P3 TRUE COPY OF THE LETTER NO.
3334/AE(TMU)/2021/KWA DATED 08.11.2021 OF MD, KWA EXHIBIT P4 TRUE COPY OF THE NOTICE INVITING E- TENDER NO.SE/PHC/KKD/21/2021-22 EXHIBIT P5 TRUE COPY OF THE LETTER DATED 18.2.2022