THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
WRIT PETITION No.6420, 6421, 6422 and 6423 of 2022
COMMON ORDER:-
The Panchayat Raj and Rural Development Department
maintains various networks built for water supply to villages.
For the purpose of maintaining these water supply schemes,
contracts are awarded for operational maintenance of these
schemes so as to ensure that the pipelines and other
components of these schemes are maintained and repaired on
time.
2. The 2nd respondent had issued tenders for
maintenance of water supply schemes as per the table given below:
Sl.No. Writ Petition No. Tender Work
Notification
Number and date
1. W.P.No.6420/2022 SA/20/2022-23, Operation and Maintenance of
dated. comprehensive Protected Water
02.03.2022. Supply Scheme (CPWS scheme) to Kondapuram and other habitations for the years 2022to 2023 (from 1.04.2022 to 31.03.2023)
2. W.P.No.6421/2022 SA/02/2022-23, Operation and Maintenance of dated. comprehensive Protected Water 02.03.2022. Supply Scheme (CPWS scheme) to Mydukur and other habitations for the years 2022 to 2023 (from 1.04.2022 to 31.03.2023)
3. W.P.No.6422/2022 SA/01/2022-23, Operation and Maintenance of dated. comprehensive Protected Water 02.03.2022. Supply Scheme (CPWS scheme) to Kamalapuram and other habitations for the years 2022 to 2023 (from 1.04.2022 to 31.03.2023)
4. W.P.No.6423/2022 SA/19/2022-23, Operation and Maintenance of dated. comprehensive Protected Water 02.03.2022. Supply Scheme (CPWS scheme) to Mylavaram and other habitations for the years 2022 to 2023 (from 1.04.2022 to 31.03.2023) 2
3. The petitioner is interested in participating in the tender process for these four contracts. However, he is aggrieved by a certain condition raised in the tender documents and has approached this Court being aggrieved by the said tender condition.
4. The tenders are called essentially for supply of man power to maintain and operate the pump-sets, pipelines, head works and gas chlorination machinery for supply of drinking water to various habitations. The tender also requires the successful contractor to take care of any repairs that may arise in course of maintenance of these water supply schemes. The said repairs also require the bidders to supply the necessary spare parts and material, after obtaining quality certification by the authorities.
5. The Method of award of tenders is to fix the estimated rate and call upon the bidders to offer discounts. The person offering the highest discount, subject to terms and conditions of the tender, is declared as a successful bidder and contract is awarded to such a bidder. The terms of the contract also provide that the cost of repair is excluded from the tender price.
6. The respondents, in accordance with the discount offered by the successful bidder, pay the estimated amount minus the discount offered by the successful bidder for supply of man power for maintenance of the water supply schemes. It appears that the same principle is applied even for the cost of repairs that is incurred by the persons maintaining the water 3 supply schemes. The petitioner is aggrieved by this method of reimbursing the cost of repairs to the successful bidder.
7. Sri V.V. Satish, learned counsel for the petitioner would submit that the said condition would mean that the contractor, who spends, let us say Rs.1,00,000/- for repairs and submits bills claiming the actual expenditure, he would only receive a lesser amount as the respondents, even after certifying the expenditure of Rs.1,00,000/- would only pay Rs.1,00,000/- minus the discount.
8. He would draw the attention of this Court to an earlier order of this Court dated 28.06.2019 in W.P.No.8187 of 2019 & Batch. In this judgment, this court was considering the same issue. This court had recorded the submission of the learned Advocate General that the cost of any renewals/repairs undertaken by the contract or would be dealt with separately and the discount offered by the successful bidder would not be applied while reimbursing the cost of repairs/ renewals.
9. Sri G.R. Sudhakar, learned counsel appearing for the Sri. V.Vinod K Reddy, learned Standing Counsel submits that the petitioner cannot assail the terms of the contract or the tender as the respondents have the liberty to fix the tender conditions. He further submits that it would always open to the petitioner not to participate in the tender process if he was not satisfied with the reasonableness of the terms of the tender. He would further submit that the petitioner would at best be entitled to challenge the tender conditions if it causes unfair advantage to any one section of the tenderers or one tenderer. 4 As that is not the case in present case, he cannot object to the terms of the tender.
10. The contentions of Sri. G.R.Sudhakar, learned counsel cannot be denied. However, the fact remains that in a similar situation, a clarification has been given by the learned Advocate General. A conspectus of the terms and conditions of the tender would show that the clarification given by the learned Advocate General would be equally applicable to the present case also.
11. While fixing the tender conditions if, the respondents after arriving at an estimation of the cost of maintenance call upon the bidders to offer discounts, it would be a fair and acceptable procedure for selection of a bidder for grant of the contract. However, in the case of repairs, the same is not an estimate which can made at this stage as such repairs would arise during the course of the maintenance of the scheme and the cost of repair undertaken by the person to whom the contract has been given, can be ascertained and approved only on the basis of the actual expenditure incurred by the said person.
12. In such circumstances, the clarification of the learned Advocate General that the discount would not be applied to the cost of repair is the only reasonable method for going forward with the contracts.
13. Accordingly, these writ petitions are disposed of with the observation that the actual cost of repairs would be reimbursed to the contractors, subject to the verification of the 5 actual expenditure incurred by the person maintaining the scheme. This clarification can give rise to claims by third parties that they would have participated in the tender process on the basis of this clarification. It would be in fitness of things for the respondents to either issue a fresh notice incorporating the terms of this order or to issue a corrigendum inviting additional and fresh bids from interested persons. There shall be no order as to costs.
Miscellaneous petitions, pending if any, in this Writ Petition shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 15-03-2022 BSM 6 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO WRIT PETITION No.6420, 6421, 6422 and 6423 of 2022 Date : 15-03-2022 BSM