Delhi High Court
M/S Aadhar Stumbh Township Pvt. ... vs Delhi Development Authority & Ors on 28 July, 2009
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on 15.07.2009
Judgment delivered on: 28.07.2009
+ WP (C) 7826/2009 & CM No. 4117/2009
M/S AADHAR STUMBH TOWNSHIP PVT. LTD. ... Petitioner
- Versus -
DELHI DEVELOPMENT AUTHORITY & ORS. ... Respondents
Advocates who appeared in this case:-
For the Petitioner : Mr Vivekanand
For the Respondent Nos. 1 to 3 : Mr Ajay Verma
For the Respondent No. 4 : Ms Kamlesh Mahajan
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL
1. Whether Reporters of local papers may be allowed
to see the judgment ? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported in Digest ? YES
BADAR DURREZ AHMED, J
1. The grievance of the petitioner is that although its price bid was the
lowest, the tender has been awarded to the respondent No.4, whose bid,
according to the petitioner, was higher than that of the petitioner. The
central point involved in this writ petition is the determination of whether,
upon a consideration of the tender conditions, the petitioner is the lowest
bidder or the respondent No.4 is the lowest bidder.
2. Sealed tenders were invited on a turnkey basis in two parts, that is, a
technical bid and a financial bid. The work was for the construction of LIG
houses as a turnkey project at Sector-14, Dwarka, Phase-II, New Delhi.
Tenders were invited in respect of the balance work which had been left
unfinished by the previous contractor. As per the invitation for tenders, the
estimated cost of the project was Rs 12,18,15,106/- and the period of
completion was stipulated to be 20 months. The petitioner and the
respondent No.4 responded to the said Notice Inviting Tender. The
technical bids were opened on 17.11.2008. Both the petitioner and the
respondent No.4 were found to be qualified and eligible for the next stage of
consideration. The financial bids were opened on 09.01.2009. The work
was awarded to respondent No.4 by the respondent No.1 [Delhi
Development Authority (DDA)]. According to the petitioner, the said work
has been wrongly awarded to respondent No. 4 inasmuch as it was the
petitioner who was L-1 (lowest bidder) and not the respondent No.4.
3. The learned counsel for the petitioner submitted that the form of the
financial bid required a lumpsum figure to be quoted for the entire work.
The relevant portion of the form of the financial bid reads as under:-
―I/We hereby tender to the Vice-Chairman, DDA for the
execution of the work specified in the tender written
memorandum. We undertake to execute the work within the
specified time for the total sum of Rs. _________
(Rupees____________) and we further undertake that the work
shall be executed entirely and in all respects in accordance with
the specifications, drawings to be approved at later stage and
instructions in writing, which may be issued by the Engineer-in-
Charge from time to time for the proper and timely execution /
completion of the work.‖
The learned counsel for the petitioner submitted that the figure entered by
the petitioner in the said financial bid form was Rs 22,85,11,376/-, whereas
the figure given by the respondent No.4 in the financial bid form submitted
by it, was Rs 22,86,00,000/-. Consequently, it was submitted that the
petitioner's financial bid was lower than that of the Respondent No.4 and the
work ought to have been awarded to the petitioner.
4. The learned counsel for the petitioner further submitted that the
purported reason why the respondent No.4's bid was being considered as
lower than that of the petitioner was on account of a wrong interpretation
being placed by the respondent/DDA on the Additional Tender Conditions
which form part of the tender documents. The learned counsel submitted
that Section-I of the bid documents, which gave the brief facts of the work,
contained clause 8, which clearly stipulated that the work would be awarded
on lumpsum cost basis and payment would be made at various stages of
construction as specified in the tender papers. He also drew our attention to
the additional conditions of the said tender. Clause 3 of the additional
conditions was as under:-
―3. The agency should examine the various items in Schedule
‗B' at page 158 (Annexure-―D‖) & quote the rates
accordingly.‖
Our attention was also invited to clause 4.1 of the said additional conditions
which, inter alia, provided:-
―4.1 ..... This scope of work given in the NIT is only
indicative and not exhaustive. The agency shall be responsible
for execution of all items required for completing these houses
in all respects to make these units habitable and ready for
occupation as well as functioning of all services, making
environment fit for habitation without any additional cost,
complete as per direction of Engineer-in-Charge.‖
5. At this juncture, we may also make a reference to Schedule-B which
is referred to in clause 3 of the Additional Conditions mentioned above. The
said Schedule-B reads as under:-
SCHEDULE-―B‖
Name of work: Construction of LIG Houses on Turnkey Basis at Sector-14, Dwarka Phase-II (2.40 Hect.)
(Rate to be filled in by the Agency).
S. Description of Item Qty. Unit Rate Amount
No.
1. 2. 3. 4. 5. 6.
1. Deduct for not casting RCC roofs slabs at 8 Nos. Each
third floor including reinforcement, centring LIG
and shuttering, conduits etc. complete as per Unit
approved drawing & design.
2. Deduct for not providing and fixing steel
glazed Windows at all floors & height as
per approved drawing.
2320.99 Sqm.
a) For over all portion treated as fixed.
Sqm.
b) Extra for side-hung portion
1557.92
(Windows) Sqm.
Sqm.
3. Add for demolishing RCC work including 55.00 Cum. Cum.
stacking of steel bars and disposal of
serviceable / unserviceable material within
50 metres lead.
4. Add for dismantling doors, windows and
clerestory windows (steel or wood) shutter
including chowkhats, architrave, holdfasts
etc. complete and stacking within 50 metres
lead.
2460 Nos. Each
a) Of area 3 sqm. and below
NOTE: Col. No.5 & 6 not to be Published.
6. The learned counsel for the petitioner referred to the general
specifications and conditions. In particular, he referred to clause 4 thereof,
which stipulated that the amount quoted by the tenderer shall be deemed to
include any minor details / items of work and / or construction, which were
obviously and fairly intended and which may not have been included in the
documents, but were essential for the execution and completion of the work.
A further condition had been imposed and added in the Notice Inviting
Tender for the balance work alongwith the original conditions. The same
required the successful tenderer to inspect the site before quoting the rates.
It was also indicated that it would be the responsibility of the successful
tenderer to complete the work in continuation of the work left by the other
agency. It was specifically provided in the said additional condition that in
case any deficiency / discrepancy was observed, the same would have to be
made good within the quoted rates.
7. The sum and substance of the arguments of the learned counsel for the
petitioner was that upon a reading of the tender documents and the terms and
conditions stipulated therein, the parties were to quote a lumpsum figure and
it was that figure alone which was to be considered for the purposes of
awarding the work, nothing more, nothing less. The learned counsel
submitted that, although this was the clear intention that could be discerned
from the tender documents, the DDA computed the financial bids after
considering the figures provided by the bidders in the said Schedule ―B‖,
which was required to be filled in terms of clause 3 of the Additional Tender
Conditions mentioned above.
8. The Schedule ―B‖ submitted by the petitioner was as under:-
SCHEDULE-―B‖
Name of work: Construction of LIG Houses on Turnkey Basis at Sector-14, Dwarka Phase-II (2.40 Hect.)
(Rate to be filled in by the Agency).
S. Description of Item Qty. Unit Rate Amount
No.
1. 2. 3. 4. 5. 6.
1. Deduct for not casting RCC roofs slabs at 8 Nos. Each 41,250/-
third floor including reinforcement, centring LIG (Rs. Forty one
and shuttering, conduits etc. complete as per Unit thousand two
approved drawing & design. hundred fifty only)
2. Deduct for not providing and fixing steel
glazed Windows at all floors & height as
per approved drawing.
500/-
2320.99 Sqm.
a) For over all portion treated as fixed. (Rs. Five hundred
Sqm. only)
Sqm. 100/- (Rs. One
b) Extra for side-hung portion 1557.92
hundred only)
(Windows) Sqm.
3. Add for demolishing RCC work including 55.00 Cum. 6000/-
stacking of steel bars and disposal of Cum. (Rs. Six thousand
serviceable / unserviceable material within only)
50 metres lead.
4. Add for dismantling doors, windows and
clerestory windows (steel or wood) shutter
including chowkhats, architrave, holdfasts
etc. complete and stacking within 50 metres
535/-
lead. (Rs. Five hundred
2460 Each
a) Of area 3 sqm. and below Nos. thirty five only)
NOTE: Col. No.5 & 6 not to be published
The Schedule ―B‖ completed and submitted by the respondent No.4 was as
under:-
SCHEDULE-―B‖
Name of work: Construction of LIG Houses on Turnkey Basis at Sector-14, Dwarka Phase-II (2.40 Hect.)
(Rate to be filled in by the Agency).
S. Description of Item Qty. Unit Rate Amount
No.
1. 2. 3. 4. 5. 6.
1. Deduct for not casting RCC roofs slabs 8 Nos. Each 57000/- Rs.4,56,000/-
at third floor including reinforcement, LIG (Rs. Fifty Seven
centring and shuttering, conduits etc. Unit Thousand only)
complete as per approved drawing &
design.
2. Deduct for not providing and fixing steel
glazed Windows at all floors & height as
per approved drawing.
2320.99 Sqm. 550/- Rs.12,76,544.50
a) For over all portion treated as
Sqm. (Rs. Five hundred
fixed. Fifty only)
1557.92 275/- (Rs. Two
b) Extra for side-hung portion Sqm. hundred seventy five Rs.4,28,428/-
Sqm.
only)
(Windows)
3. Add for demolishing RCC work 55.00 2000/- Rs.1,10,000/-
including stacking of steel bars and Cum. (Rs.Two thousand
disposal of serviceable / unserviceable only)
material within 50 metres lead.
4. Add for dismantling doors, windows and
clerestory windows (steel or wood)
shutter including chowkhats, architrave,
holdfasts etc. complete and stacking
330/-
within 50 metres lead. (Rs. Three hundred
2460 Each Rs.8,11,800/-
c) Of area 3 sqm. and below Nos. thirty only)
NOTE: Col. No.5 & 6 not to be published.
9. According to the learned counsel for the petitioner, what the DDA has
done by adding and deducting the figures given in the schedule ‗B' form
submitted by the petitioner is contrary to the tender conditions, which
required a lumpsum bid amount. According to the petitioner, the figures
mentioned in Schedule ‗B' referred to above were not to be considered at all
for the purposes of determining the lowest bidder and those figures were to
be subsumed in the lumpsum price quoted by each bidder. The learned
counsel for the petitioner also placed reliance on the Supreme Court decision
in the case of West Bengal Electricity Board v. Patel Engineering Co.
Limited and Others: AIR 2001 SC 682 for the proposition that it is essential
to maintain the sanctity and integrity of the process of tender / bids and also
for the award of a contract. In the said Supreme Court decision, which, of
course, related to international competitive bidding, which is not the case
here, the Supreme Court observed that the degree of care required in such
bidding is greater than in ordinary local bids for small works. At this stage
itself, we may point out that the said Supreme Court decision would not
strictly apply to the case at hand. However, there is no shying away from
the general proposition that the sanctity and integrity of the process of
tenders / bids must be maintained. It cannot also be denied that the tender
conditions are to be followed and relaxing any condition or altering any
condition to the detriment of one or more parties is not permissible and
would impair the rule of transparency and fairness.
10. The learned counsel for the DDA submitted that the work has been
correctly awarded to the respondent No.4 inasmuch as the respondent No.4,
in view of the tender conditions, was the lowest bidder. According to the
said counsel, clause 3 of the additional conditions, referred to above, clearly
required the tenderer to examine the items in Schedule ―B‖ and to quote the
rates accordingly. Schedule ―B‖ comprised of four items. The first two
items required deductions and the next two items, namely, item Nos. 3 and 4
required additions. The bidders were to quote their rates and amounts
against each of these items. The question that clearly arises is - From what
were the deductions in respect of items 1 and 2 to be made and to what were
the amounts in items 3 and 4 to be added? It is obvious that the deductions
and the additions had to be with respect to the figures quoted by the bidders
in the lumpsum financial bids submitted by them. Thus, according to the
learned counsel for the DDA, the lumpsum figure quoted by the bidders had
to be adjusted by the figures quoted in the Schedule ―B‖ forms and it is only
after they were considered together that the lowest bidder could be found
out. In the counter-affidavit, the respondent DDA has stated that the
contract was for the balance work as left incomplete by the earlier
contractor. As part of the work already executed by the previous contractor,
there were two specific items:-
-- 8 nos. roofs / slabs already laid;
-- steel glazed doors / windows already fixed.
The scope of work in the present tender included these items also. However,
Schedule-B clarified that there could be a possibility of the roofs / slabs
being retained as also the doors / windows being retained. It was submitted
that the main schedule for the balance work under the tender included the
construction of 8 roofs / slabs and doors / window frames which had been
executed by the earlier contractor. The cost of construction of such roofs /
slabs and doors / window frames had been taken in the scope of work of the
present tender under the main schedule. Thus, based on the report of a
testing agency appointed for the purpose, the DDA was to take a decision as
to whether those items were to be retained or dismantled. If the said roofs /
slabs and doors / windows were to be retained, it is obvious that the cost of
such works quoted by the bidder would be deducted from the lumpsum rates
quoted in the main schedule / scope of work. It was further explained by the
DDA that on the other hand if the concerned items were to be dismantled,
then the cost of dismantling would have to be added to the rates quoted in
the main schedule / scope of work.
11. It is on this basis that the lowest tenderer, according to the DDA, was
to be determined after examining the lumpsum amount and the amounts
quoted in Schedule-B.
12. It was further stated in the counter-affidavit that the comparative
statement of the bids of the petitioner and the respondent No.1, after
considering the lumpsum amount quoted by each as also the amounts quoted
by them under Schedule-B, was as under:-
"STATEMENT SHOWING THE POSITION OF BIDS IN FOUR (4Nos.) OF SITUATIONS.
I. IF BOTH 8 NOS. OF ROOFS / SLABS AND THE WINDOWS ETC. ARE TO BE RETAINED.
M/s Aadhar Stumbh M/s. N.D.R. Israni &
Township (P) Ltd. Co. Pvt. Ltd.
Lump-sum Quoted rates:-Page 43 of 22,85,11,376.00 22,86,00,000.00
tender
Deduct for not casting 8 Nos. of roofs (-) 16,46,287.00 (-) 21,60,972.50
slabs & not providing windows etc.
NET AMOUNT OF BID. 22,68,65,089.00 22,64,39,027.50
II. IF BOTH 8 NOS. OF ROOFS / SLABS & WINDOWS ARE TO BE DISMENTALLED.
M/s Aadhar Stumbh M/s. N.D.R. Israni &
Township (P) Ltd. Co. Pvt. Ltd.
Lump-sum Quoted rates:-Page 43 of 22,85,11,376.00 22,86,00,000.00
tender
Add for dismentalling 8 Nos. of slabs (+) 16,46,100.00 (+) 9,21,800.00
and windows etc.(Item No.3 & 4)
NET AMOUNT OF BID. 23,01,57,476.00 22,95,21,800.00
III. IF 8 ROOFS RETAINED & WINDOWS ARE TO BE DISMENTALLED.
M/s Aadhar Stumbh M/s. N.D.R. Israni &
Township (P) Ltd. Co. Pvt. Ltd.
Lump-sum Quoted rates:-Page 43 of 22,85,11,376.00 22,86,00,000.00
tender
Add for dismentalling windows & (+) 13,16,100.00 (+) 8,11,800.00
doors (Item No. 4)
Deduct for not casting RCC roofs 8 (-) 3,30,000.00 (-) 4,56,000.00
Nos. (Item No.1)
NET AMOUNT OF BID. 22,94,97,476.00 22,89,55,800.00
IV. IF 8 Nos. ROOFS / SLABS GOT DISMENTALLED AND WINDOWS RETAINED.
M/s Aadhar Stumbh M/s. N.D.R. Israni &
Township (P) Ltd. Co. Pvt. Ltd.
Lump-sum Quoted rates:-Page 43 of 22,85,11,376.00 22,86,00,000.00
tender
Add for dismentalling 8 Nos. of slabs (+) 3,30,000.00 (+) 1,10,000.00
(Item No. 3)
Deduct for not providing & fixing steel (-) 13,16,287.00 (-) 17,04,972.50
glazed windows .. 2(a) & (b)
NET AMOUNT OF BID. 22,75,25,089.00 22,70,05,027.50
Thus, according to the learned counsel for the DDA, whichever eventuality
is considered, the respondent No.4 was the lowest bidder and, therefore, the
work has been correctly awarded to the respondent No.4 and the petitioner
cannot have any grievance whatsoever.
13. The learned counsel for the respondent No.4 supported the
contentions of the learned counsel for the DDA. In addition, he submitted
that it must be noted that the rates and amounts in Schedule-B had to be
filled in by the tenderers. If those rates and amounts were not to be
considered, then what was the need for requiring the tenderers / bidders to
quote the same? It was pointed out that the tender conditions were clear and
had been understood by each of the parties and that is the reason why,
although the respondent No.4 was the lowest bidder, the bids of both the
parties are closely matched.
14. The issue that has to be determined is whether the approach adopted
by the respondent No.1/DDA or the arguments advanced by the petitioner
with regard to who is the lowest bidder, is to be accepted. From the
arguments noted above, it is clear that both the petitioner and the respondent
No.4 cleared the hurdle of technical qualification. It is also clear that both
the petitioner and the respondent No.4 filled in their respective Schedule-B
forms and submitted the same alongwith their lumpsum financial bids.
Thus, both the petitioner and the respondent No.4 were clearly aware that
they were required to fill in and give their quotations in respect of the items
mentioned in Schedule-B. Both, the petitioner and the respondent No.4
were also aware that the work entailed the balance work left by an earlier
contractor. The roofs / slabs and doors / windows constituted part of the
scope of the work of the present tender. But, that part had already been done
by the earlier contractor. The DDA was unsure at the time when the notice
inviting tender was floated as to whether they were going to retain the said
roofs / slabs and doors / windows. That would depend upon a consideration
of the report of an expert. It is for this reason that the tenderers were
required to submit their quotations for the said items also.
15. It is also clear that the items mentioned in Schedule-B could not all
stand at the same time. This is so because items 1 and 2 of Schedule-B
would come into play only if there was a decision to retain those items,
namely, roofs/ slabs and doors / windows respectively. If these items were
not to be retained, then they would require to be demolished and it is then
that a consideration of items Nos. 3 and 4, which pertain to the cost of
demolishing / dismantling would come into the picture. It is, therefore, clear
that Item Nos. 1 and 3 were mutually exclusive and so were items 2 and 4 of
Schedule-B. That leaves us with four eventualities:-
a) Items 1 and 2;
b) Items 3 and 4;
c) Items 1 and 4; and
d) Items 2 and 3.
16. A comparative summary of the bids by the petitioner and the
respondent No.4, after taking into account these eventualities and the rates
quoted by them in Schedule-B, is as follows:-
S. Item Eventuality Petitioner's Respondent
No. No. Bid (Rs.) No.4's Bid (Rs.)
(a) 1+2 If both the roofs / slabs and the 22,68,65,089/- 22,64,39,027.50
doors / windows are to be
retained
(b) 3+4 If both the roofs / slabs and the 23,01,57,476/- 22,95,21,800.00
doors / windows are to be
dismantled
(c) 1+4 If the roofs / slabs are to be 22,94,97,476/- 22,89,55,800/-
retained and the doors /
windows are to be dismantled
(d) 2+3 If the roofs / slabs are to be 22,75,25,089/- 22,70,05,027.50
dismantled and the doors /
windows are to be retained
If we were to consider any of the eventualities, the respondent No.4's bid is
clearly lower than that of the petitioner. In other words, whatever the
eventuality, the outgo on the part of the DDA would be the least if the work
was awarded to the respondent No.4.
17. It is also clear that since the roofs / slabs and the doors / windows had
already been put in place by the earlier contractor, at least one of the
aforesaid eventualities, referred to in the preceding paragraph, would have to
be undertaken by the respondent / DDA. In other words, from the lumpsum
figure mentioned by each party, the lowest price would have to be
determined by either ‗adding or deducting' or ‗adding and deducting',
depending on the particular eventuality chosen, the rates quoted for such
eventuality in Schedule-B by each of the parties. A complication could have
arisen where there was a cross-over of rates and consequently a cross-over
of the ultimate price determined in each of the eventualities. Fortunately,
that has not happened in the present case. This is so because in every
eventuality, the respondent No.4's bid has worked out to be lower than that
of the petitioner.
18. We are, therefore, of the view that the respondent No.4 was clearly the
lowest bidder and the work has been correctly awarded to the respondent
No.4 on the basis of the tender conditions. The reference by the petitioner to
clause 4 of the General Specifications and Conditions as also to the
additional conditions with regard to inspection relates to minor details and
discrepancies and is not connected with the specific items mentioned in
Schedule-B. The end result is that no fault can be found with the award of
the work in favour of the respondent No.4. The respondent Nos. 1 to 3 can
go ahead and finalise the award of the work in favour of the respondent
No.4. The writ petition is dismissed with costs which we quantify at
Rs 20,000/-.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
July 28, 2009
dutt
