High Court · 2012

within 10% of the revised estimate. That apart, under Clause-8 of the general conditions, the participating tenderers are required to be informed about all cl arification/ modification of the contract terms. This clause(s) being relevant a re extracted as hereunder:- (cid:28)19.4.3.2 Apropos provisions under para 19.4.3 variation up to 5% over the justified rates may be ignored. Variation up to 10% may be allowed for peculiar situations and in special circumstances. Reasons for doing so shall be placed on record. Tender s above this limit should not be accepted. & & & & & & & & & & & & & & (cid:29) Acceptance of tenders at justified rates with allowable variatio (cid:28)8. Agenda/Corrigenda: 8.1. Agenda/corrigenda to the tender document may be issued prior to the date of opening of the tenders to clarify documents or to reflect modification in th e design or contract terms. 8.2 Each agenda/corrigenda issued by the owner will be distributed in duplic ate to each person or organisation to whom a set of tender documents has been is sued. Each tenderer will retain one copy of each agenda/Corrigenda for submissio n along with his tender and return one signed copy to the Engineer-in-charge as acknowledgement of receipt of the same. All agenda/corrigenda issued by the owne r shall become part of tender documents. (cid:29)

9. As can be seen from above, allowable variation under Clause 19.4.3.2 of the CPWD Manual is permissible only upto 10% and that too for peculiar situation s and in special circumstances. Moreover under Clause 8 of the General Condition s of Contract, the corrigendum should be issued when contract terms are modified . The owner (IIT) is then required to furnish the corrigendum as it becomes part of the tender documents, to all the contractors to whom the tender documents we re issued.

10. In the above backdrop, the impact of not informing the contractors about the revision of estimate will have to be assessed. In this case, firstly the pe titioner’s tender was rejected although it was the L-1 bid. Next without disclos ing to the contractors on the revised estimate, the B & WC considered the other bids under Clause 19.4.3.2 of the CPWD Manual.

11. The Owner in a tender process may reject a tenderer but when the L-1 ten derer is not taken into account, one has to examine the decision making process with greater care. The respondents contend that each participating tenderers wer e aware that the estimate of the work is likely to be revised and therefore it i s unnecessary to notify the revised estimate. But being aware of the possibility of revision and being actually informed of the revised estimate can’t be the sa me thing. Here, although the revised value of the work was approved, the same wa s not disclosed to any of the contractors, before their price bids were opened o n 10.3.2012. The bid of the recommended tenderer is admittedly a little beyond the 10 12. % permissible outer limit (under Clause 19.4.3.2 of the CPWD Manual) and yet the ir bid found acceptability with the respondents. In the above circumstances, I am of the considered view that integrity a 13. nd credibility of the decision making process was violated in the instant case. As the respondents failed to notify the revised estimate to the contractors, as required under Clause-8 of the General Conditions of Contract, the possibility of unfairness in the process of selection can’t be ruled out particularly when, the L-1 bidder was ignored. As the respondents had not notified the revised esti mate before the price bids were opened, I feel that the recommendation made in f avour of M/S Tectonicsco can’t be sustained as it was based on an undisclosed re vised estimate. Consequently the resolution i.e. item No.4 in the 68th Meeting of the Building and Works Committee dated 9.4.2012 is held to be vitiated and th e same is quashed. The owner (IIT) may accordingly reconsider all the valid bids and award the contract to the most competitive (L-1) bidder. But if the revised estimate, a raise of 74.78%, is a hurdle for reconsideration, the IIT Authorit ies are at liberty to initiate a fresh tender process.

14. The case is accordingly allowed without any order on cost.