Ballamgarh Co-operative Labour & Construction Society Ltd. v. Punjab State Power Corporation Limited
2016-05-25
ARUN PALLI, S.J.VAZIFDAR
body2016
DigiLaw.ai
JUDGMENT : S.J. VAZIFDAR, J. 1. The petitioners have challenged a notice inviting tenders issued by the respondents inviting e-tenders for the work of routine cleaning of station buildings at various levels for unit-I to VI including other related buildings and service building. The petitioners have not annexed the entire tender document. 2. The petitioners rely upon Clause-1 of the policy of the Government of Punjab dated 02.10.2014. It would, however, be necessary to also consider Clauses-4 and 5 during the course of this judgment. Clauses-1, 4 and 5 read as under:- “1. All the unskilled works up to any amount and all the skilled works up to the value of Rs. 40 lacs be given to only these Societies at the ceiling rates fixed by the concerned Superintending Engineers of every branch of the P.W.D. through tenders but the works be given to them up to their competency to undertake the work. In case, these Societies do not give tenders and accept the work within the fixed ceiling rates, then such works be got done by inviting open tenders from the Contractors and the Societies. Tenders of skilled works up to the amount of Rs.40 lacs should be called through E-Tendering system and in those tenders, the competition will be amongst Co-operative Labour and Construction Societies only.…..…..…..….. 4. For Rs.6.50 lacs skilled work, the Societies are exempt from the payment of earnest money. If the skilled works are from Rs.6.50 lakhs to Rs.13 lakhs, then the amount of 25% earnest money determined by the Department shall be charged. In case the skilled works are of the value of more than amount of Rs.13 lacs, then 50% of the amount of earnest money fixed by the Department shall be charged from the Co-operative Labour and Construction Societies. No bank guarantee or security deposit shall be obtained from the Labour and Construction Societies. 5. When work includes the skilled works and unskilled works, then instead of inviting separate tenders, a joint tender should be called.” 3. Mr. Sharma, the learned senior counsel appearing on behalf of the petitioners, relies upon an earlier tender notice dated 22.12.2015 for the same work. He relies upon a reference therein to the said work as being unskilled work.
When work includes the skilled works and unskilled works, then instead of inviting separate tenders, a joint tender should be called.” 3. Mr. Sharma, the learned senior counsel appearing on behalf of the petitioners, relies upon an earlier tender notice dated 22.12.2015 for the same work. He relies upon a reference therein to the said work as being unskilled work. Accordingly, he submits that the work covered by the present tender process is also unskilled work and, therefore, only societies such as the petitioners are entitled to be awarded the contract. 4. The present NIT does not refer to the work as unskilled work. This is not an accidental omission. It was pursuant to a conscious decision. One M/s. Ashok Kumar Aggarwal, by a letter dated 22.01.2016, addressed to the respondents, contended that the work ought to be considered as skilled work for the various reasons mentioned therein. Pursuant to this representation, the respondents constituted a committee comprising of three Dy. Chief Engineers, Monitoring, FE&T and Operation, respectively, to consider the issue as to whether the said work was skilled work or unskilled work. After deliberating upon the issue, the committee submitted a report dated 15.02.2016. The committee concluded that the work is neither only unskilled work nor only skilled work but a combination of both skilled work and unskilled work. In that view of the matter, Clause-5 of the said policy would come into play. Clause-5, set out above, provides that when the work includes the skilled works and unskilled works, then instead of inviting separate tenders, a joint tender should be called. 5. The omission to refer to the work in the NIT, therefore, was a conscious decision. The same has not been challenged. Issues such as this must at least, in the first instance, be left for the decision of the parties inviting tenders. We are unable to state that the decision was arbitrary or unreasonable. 6. Mr. Sharma contended that in any event only the societies such as the petitioners would be entitled to be awarded works up to the value of Rs.40 lacs. 7. The value of the work has not been disclosed by either of the parties. Mr. Bhardwaj, the learned counsel appearing on behalf of the respondents, submitted that it is possible that no value has been ascribed to the work and that the work would be allotted to the most competitive bidder.
7. The value of the work has not been disclosed by either of the parties. Mr. Bhardwaj, the learned counsel appearing on behalf of the respondents, submitted that it is possible that no value has been ascribed to the work and that the work would be allotted to the most competitive bidder. 8. The question then would be as to how the policy of 02.10.2014 is to operate. To say that the policy would not operate at all in such cases would not be fair to such societies for their entitlement/rights under the policy could be defeated in every case. In such a case where no value is stipulated in respect of the tendered work, the bid of a society of Rs.40 lacs or less would be entitled to precedence over the bid of any other party irrespective of the bid of such party. In other words, even if the bid of a party other than such a society is less than the bid of a society of Rs.40 lacs or less, the society would be entitled to be awarded the work. Further, in cases where a society submits a bid of more than Rs.40 lacs and a bidder, other than the society, bids less than Rs.40 lacs, the society or societies ought to be permitted to match the bid which is Rs.40 lacs or less or to better it. This is for the obvious reason that in that event the value of the work would be less than Rs.40 lacs. 9. The writ petition is accordingly disposed of. The tenders of societies such as the petitioners shall be evaluated in accordance with the above observations.