B. Raj Asekhar Reddy vs State Of Andhra Pradesh
2022 Latest Caselaw 1317 AP

            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)

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

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.

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

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

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

WRIT PETITION No.6420, 6421, 6422 and 6423 of 2022

Date : 15-03-2022

BSM