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2008 DIGILAW 951 (PAT)

Chandan Abhishek v. State of Bihar

2008-07-15

body2008
ORDER Heard learned counsel for the petitioner, learned counsel for the Bihar Industrial Area Development Authority and learned J.C. to A.A.G. IX for the State. 2 The petitioner seeks a direction upon the Executive Director, Bihar Industrial Area Development Authority (Respondent No.4) to allow him to execute the work of construction of compound wall at Industrial Area, Maranga, Purnia in the capacity of being the lowest bidder as per advertisement dated 3.2.2008 (Annexure-1), and further not to act pursuant to the subsequent open bid for the same set of construction work advertised on 24.2.2008 (Annexure-1/A). 3. The petitioner alongwith the other contractors applied against notice inviting tender published in daily newspaper "Hindustan" dated 3.2.2008 (Annexure-1). The petitioner was declared successful and on the financial bid being opened, he was found as the lowest tenderer having offered to work at the rate of .01 per cent less than the bill of quantity rates whereas the other tenderer had agreed to work at the bill of quantity rates. It is the admitted position that thereafter the authorities of the Bihar Industrial Area Development Authority (in short "BIADA") entered into negotiation with the petitioner, L-1, for lowering down the rate but the same could not succeed and, therefore, a fresh tender was resorted to by advertisement dated 24.2.2008 (AnnexureA/1) and after the second advertisement, the tenders were opened and the lowest tenderer made an offer to work at 10.01 per cent less than the bill of quantity rates whereas the petitioner also quoted rates at 0.8 per cent below the bill of quantity rates. The tenders were not finalized on account of the interim order passed by this Court in the present case. 4. Learned counsel for the petitioner states that the schedule of rates as quoted in the bill of quantity is as per Regulation 3.11 of the Technical Regulations of the BIADA. The schedule of rates means the rates as approved by the Executive Committee. It is, thus, submitted that the bill of quantity rates being the schedule of rates approved by the Executive Committee, the respondent-authorities cannot take stand that the rate quoted by the petitioner was excessive, since it was less than the approved rates of the Executive Committee of the BIADA itself. 5. It is, thus, submitted that the bill of quantity rates being the schedule of rates approved by the Executive Committee, the respondent-authorities cannot take stand that the rate quoted by the petitioner was excessive, since it was less than the approved rates of the Executive Committee of the BIADA itself. 5. It is further submitted by learned counsel for the petitioner that reliance placed by learned counsel for the BIADA on Regulation 9 of the said Technical Regulations is of no avail, as there was no provision in the notice inviting tenders that the BIADA shall negotiate with L-1 and if it feels that the rates are very high then BIADA may offer the lowest bidder its own rate based on market study and in case the lowest bidder refuses to come down to BIADA's satisfaction then it will go for a re-tender at its sweet will. It is contended that the petitioner is bound only by the terms of the said advertisement. According to learned counsel even as per Regulation 9 of the Technical Regulations, 2007, the BIADA has power to negotiate only with L-1 and if it feels that the rates quoted by L-1 are very high then the BIADA may offer the lowest bidder, its own rate based on market study whereas the petitioner having offered rates lower than the bill of quantity rates approved by the Executive Committee, he cannot be said to have quoted a very high rate. Learned counsel also states that the rates as per the said Regulation 9 quoted by the BIADA in the course of negotiation have to be based on market study but for the last 10 years, there has been no such market study done and thus, the action of the authorities is arbitrary and contrary to the Regulations itself. It is submitted by learned counsel that if the BIADA is permitted to re-tender then there would be no end to the process of re-tender to satisfy the authorities of the BIADA. 6. Learned counsel for the BIADA, on the other hand, submits that in the present matter, the authorities of BIADA have acted in accordance with the terms of Regulation 9 of the Technical Regulations, 2007 and it cannot be said that they have acted in an arbitrary and unreasonable manner. 6. Learned counsel for the BIADA, on the other hand, submits that in the present matter, the authorities of BIADA have acted in accordance with the terms of Regulation 9 of the Technical Regulations, 2007 and it cannot be said that they have acted in an arbitrary and unreasonable manner. It is argued that the said Regulations have been issued with the approval of the Government in the exercise of statutory power after publishing the same in the official Gazette on 27.12.2007 and BIADA is guided by the same. It is further contended that having acted in terms of the said Regulations it cannot be held that BIADA was acting in an unreasonable manner. In fact, according to learned counsel, it was noticed after the financial bid of the petitioner was opened that the rates offered by him are much more than the rate offered by the other contractors in various floated tenders by BIADA itself with respect to similar work and accordingly, BIADA entered into negotiations with the petitioner but the petitioner refused to lower his bid. In the said circumstances, BIADA had no option but to go for re-tender in terms of Regulation 9 of Technical Regulations, 2007. The action of the BIADA is reasonable and not contrary to the said Regulations, as it is also borne out from the re-tender process during which the lowest tender offered to work at 10.01 per cent whereas the petitioner had offered to work at the rate of 0.8 per cent. Hence, it is argued that it cannot be said that the action of BIADA regarding re-tender of the bid is arbitrary and unreasonable. It is pointed out that even in the financial bid document it has been clearly stated that the rate above estimated cost shall not be accepted and thus, it is clear that the bill of quantity is merely laid down as a ceiling beyond which no contractor is permitted to quote. Hence, the entire argument, according to learned counsel, that the rates of the petitioner were not high is fallacious. 7. On a consideration of the aforesaid submissions of learned counsel for the parties, this Court does not find any force in the submission of learned counsel for the petitioner. Hence, the entire argument, according to learned counsel, that the rates of the petitioner were not high is fallacious. 7. On a consideration of the aforesaid submissions of learned counsel for the parties, this Court does not find any force in the submission of learned counsel for the petitioner. It is clear in the present matter that the authorities of BIADA have not acted at all in an arbitrary or unreasonable manner, rather they have resorted to the procedure prescribed in the Technical Regulations, 2007 duly approved by the Government in the Department of Industries. In fact BIADA had entered into negotiations with the petitioner for lowering down the rates to what it considered reasonable and on the petitioner having not agreed to lower the rate, they have gone for re-tender, which clearly shows that they have not ignored the petitioner while coming to a decision for re-tender. The petitioner was given full opportunity to lower rates, which were more than the rates quoted for similar work by the other contractors in other tenders floated by BIADA and thus the authorities of BIADA by going for re-tender have acted in the public interest. The same is also borne out from the bid offered in the re-tender in which another person has offered the rate at 10.01 per cent less that the bill of quantity whereas the petitioner had offered at 0.8 per cent less on re-tender, which is much higher than the rate offered by the other person. 8. Regulation 9 of the Technical Regulations clearly supports the stand of the respondents and merely because the said terms and conditions are not indicated in the advertisement, it does not mean that the BIADA was absolved of its duty in terms of the said statutory Regulations framed with the approval of the Government. The word "market study" used in Regulation 9 cannot be strictly considered to be one necessarily undertaken by a team of experts. It is simply the rates being quoted for similar work by the other tenderers either in relation to tenders floated by BIADA or by the Government or semi-Government agencies. Moreover, it is evident from the materials on the record that the bill of quantity is a ceiling above which no tenderer can quote, and. It is simply the rates being quoted for similar work by the other tenderers either in relation to tenders floated by BIADA or by the Government or semi-Government agencies. Moreover, it is evident from the materials on the record that the bill of quantity is a ceiling above which no tenderer can quote, and. thus it cannot be argued that the authorities of BIADA are obliged to accept a tender merely because it is lower than the bill of quantity rates. 9. Thus, in the light of the discussions made above, this Court does not find any merit in the writ application and it is, accordingly, dismissed. The authorities of BIADA are free to proceed in the matter in terms of the second notice inviting tender published on 24.2.2008 (Annexure-A/1).