Food Corporation of India v. N. E. Trade and Transport
2019-05-07
MANISH CHOUDHURY, MANOJIT BHUYAN
body2019
DigiLaw.ai
ORDER : Manish Choudhury, J. 1. This writ appeal is directed against the judgment and order dated 03.04.2018 passed in the writ petition, W.P.(C) No. 4111/2017, by the learned Single Judge wherein and whereby the writ appellants/respondents are directed to make payment to the respondents/petitioners at their quoted rate of Rs. 11.41/- per MT per KM for the entire distance of 295.10 KMs. Further direction is to make the payment to the respondents/petitioners within a period of 3 (three) months from the date of receipt of certified copy of the order by the appellant/respondent i.e. the General Manager, Food Corporation of India (FCI), Assam Region. 2. Heard Mr. B. Deb, learned counsel appearing for the writ appellants/who were the respondents in the writ petition, and Mr. N. Deka, learned counsel appearing for both the respondents, who were the petitioners in the writ petition, W.P.(C) No. 4111/2017. 3. The facts leading to the institution of the writ petition are narrated hereunder briefly. By a "Notice Inviting e-Tender" (NIeT, in short) dated 30.03.2015, Food Corporation of India, Regional Office, Assam Region, Guwahati invited tenders online under "Two Bid Tendering System" for appointment of regular contractors for 13 (thirteen) nos. of works of transportation of food grains/sugar/allied materials from contractors with or without requisite experience with strong financial background on regular basis for a period of 2 (two) years. The last date for online submission of tender was fixed up to 01-30 p.m. on 20.04.2015. In the said NIeT, qualification conditions for bidding were duly indicated for the information of the bidders. Apart from indicating the name of the works, the NIeT mentioned the estimated value of contract, earnest money and security deposit in respect of each of the 13 (thirteen) nos. of works. As the works pertained to transportation of food grains/sugar/allied materials from Ex-Railway Siding Salchapra to different depots of Food Corporation of India (FCI) located at different places, the NIeT also indicated the distance between the two locations for each of the 13 (thirteen) works in KMs. 4. As regards the manner in which the rates were to be quoted the pertinent clause in the NIeT read as under:- "The rate should be quoted as per MT per KM as per MTF.
4. As regards the manner in which the rates were to be quoted the pertinent clause in the NIeT read as under:- "The rate should be quoted as per MT per KM as per MTF. If rate is quoted otherwise it shall be converted to per MT per KM taking distance mentioned above." It transpires from the said clause that a bidder had to quote his rate per Metric Ton (MT) per Kilo Metre (KM) as per Model Tender Form (MTF). It further prescribed that if any bidder had submitted its bid in other manner the same was to be converted to per MT per KM taking distance mentioned in the NIeT for the particular work. 5. The relevant details of the work in respect of which the writ petition was preferred were as under:- Name of the work Ex-Rly. Siding, Salchapra to FCI FSD Arundhutinagar (Tripura) via weighbridge Estimated value of Contract : Earnest Money@ 2% of VOC : Security Deposit : (Distance 243) (Minimum daily requirement of trucks during placement of rake/wagon=20-30, may increase or decrease as per exigency of requirement) Rs.17,30,78,400/- Rs.34,61,568 (i) Rs.86,53,920/- (ii) Rs.2,59,61,760/- 6. The respondent no. 1/petitioner no. 1, a proprietorship firm (hereinafter referred to as the petitioner firm) being qualified, had submitted its bid in respect of the work referred above. As could be seen from the NIeT, the distance from Ex-Rly. Siding, Salchapra to FCI FSD Arundhutinagar (Tripura) via weighbridge was mentioned as 243 KMs. It was contended on behalf of the petitioner firm that it had submitted its bid complying with the terms and conditions of the NIeT and, more particularly, by quoting its rate per MT per KM which was Rs. 11.41/- taking into consideration the distance to be covered between the two end points as 243 KMs. 7. After evaluation of the bids and completion of the bidding process, the petitioner firm on being emerged as the bidder who had quoted the lowest rate for the work under reference, came to be appointed as the transport contractor from Rail Head Salchapra to FCI, FSD, Arundhutinagar (Tripura) via weighbridge on regular basis for a period of 2 (two) years by a letter dated 29.06.2015 issued under the hand of the General Manager (Region), FCI, Regional Office, Assam Region, Guwahati at its quoted rate of Rs. 11.41/- per MT per KM. 8.
11.41/- per MT per KM. 8. On being awarded with the work, the petitioner firm started operating as a transport contractor for transportation of food grains/sugar/allied materials from Rail Head Salchapra to FCI, FSD, Arundhutinagar (Tripura) from 08.07.2015 onwards and started raising its bills assuming the distance between the two end points to be 243 KMs, as had been mentioned in the NIeT. When in course of time the petitioner firm realized that the distance between Rail Head Salchapra and FCI, FSD, Arundhutinagar (Tripura) was 295 KMs instead of 243 KMs, it submitted representations before the respondent FCI authorities (the appellants herein) with the request to make payment for transportation of the extra distance beyond 243 KMs covered by them at the same rate as had been given to it for the distance up to 243 KMs. 9. Acting on the representations of the petitioner firm, a committee was constituted by the FCI authorities to verify and to find out the shortest motorable distance from Rail Head Salchapra to FCI, FSD, Arundhutinagar (Tripura) and the members of the said committee after covering the distance by a vehicle themselves, submitted a report on 12.09.2016 to the effect that the shortest motorable distance through which trucks were plying was 295.10 KMs which meant that the extra distance was 52.10 KMs. After it was confirmed that the distance between Rail Head Salchapra and FCI, FSD, Arundhutinagar (Tripura) was 295 KMs the matter of payment for the extra distance of 52.10 KMs to the petitioner firm was considered at the end of FCI authorities. 10. The competent authorities conveyed approval for payment as per genuine and actual distance. In so far as the rate to be paid to the petitioner firm for the extra distance of 52.10 KMs distance was concerned, the FCI authorities finalized the rate at Rs. 9.48/- per MT per KM for the entire distance of 295.10 KMs. As the petitioner firm transported a quantity of 45,142 MT during the period from October, 2015 to April, 2016 the FCI authorities re-calculated the total amount payable to the petitioner firm as a transport contractor at Rs. 12,62,86,911.81/- on the basis of the revised rate @ Rs. 9.48/- per MT per KM. As the original estimate for the distance of 243 KMs at the rate of Rs. 11.41 per MT per KM for the quantity of 45,142 MT was Rs.
12,62,86,911.81/- on the basis of the revised rate @ Rs. 9.48/- per MT per KM. As the original estimate for the distance of 243 KMs at the rate of Rs. 11.41 per MT per KM for the quantity of 45,142 MT was Rs. 12,51,62,063.46/- the differential amount was calculated at Rs. 11,24,848.35/- which the FCI authorities decided to make payment. The said decision on revised rate was communicated to the petitioner firm by a letter dated 12.06.2017. It was mentioned in the letter dated 20.06.2017 that the competent authority had approved that the benefit of extra distance of 52.10 KMs distance transported by the petitioner firm be limited to the revised rate of L-2 tenderer and the revised rate per MT per KM was calculated @ Rs. 9.48/- per MT per KM (Rs. 2799/295.10 KMs) for the entire distance. Finding the said fixation of revised rate at Rs. 9.48/- per MT per KM arbitrary and unreasonable, the two petitioners i.e. the petitioner firm as petitioner no. 1 and its proprietor as petitioner no. 2 preferred the writ petition, W.P.(C) No. 4111/2017. 11. It was contended on behalf of the petitioner firm that in so far as the total quantity of goods transported was concerned, there was no dispute as the total quantity of goods transported was 45,142 MT. As regards the distance, since the FCI authorities themselves had found out the distance, as contended by the petitioner, as 295.10 KMs the said issue also got resolved. But it was the revised rate of Rs. 9.48/- per MT per KM, fixed by the FCI authorities, which was arbitrary and unreasonable. 12. In the writ petition, the FCI authorities, in the counter affidavit, took the stand that the rates quoted by L-1 and L-2 bidders were reconsidered in terms of the relevant tender cost as provided in the NIeT dated 30.03.2015 and thereafter, the revised at Rs. 9.48/- per MT per KM was reached. To justify the revised rate of Rs. 9.48/-, which was under challenge, the FCI authorities stated that the petitioner firm had quoted Rs. 11.41/- per MT per KM while on the other hand, L-2 bidder had quoted Rs. 2,799/-. Taking the above as basis, the FCI authorities ascribed that the petitioner firm had quoted an amount of Rs. 3,367/- (=Rs.
To justify the revised rate of Rs. 9.48/-, which was under challenge, the FCI authorities stated that the petitioner firm had quoted Rs. 11.41/- per MT per KM while on the other hand, L-2 bidder had quoted Rs. 2,799/-. Taking the above as basis, the FCI authorities ascribed that the petitioner firm had quoted an amount of Rs. 3,367/- (=Rs. 11.41/- X 295.10KMs) per MT for the entire distance of 295.10 KMs after reckoning that the rate of L-2 bidder i.e. Rs. 2,799/- was for the entire distance of 295.10 KMs and, consequently, the rate of L-2 per MT per KM at Rs. 9.48/-. It was further contended that the rates of L-1 and L-2 so quoted by them would have been evaluated in the aforesaid basis, the position of L-1 and L-2 would have been interchanged. It was contended that the petitioner firm was a regular transport contractor and had been working in the field of transportation contract and, therefore, was aware about the actual distance between Rail Head Salchapra and FCI, FSD, Arundhutinagar (Tripura). It was also contended that public interest weighed in for taking the decision to fix the revised rate at Rs. 9.48/- per MT per KM as otherwise if the converted rate of Rs. 3,367/- for the petitioner firm vis-à-vis Rs. 2,799/- of the L-2 bidder was taken into consideration, the petitioner firm would have been L-2 bidder instead of L-1 bidder. 13. The above submissions and counter submissions of the contesting parties were duly considered by the learned Single Judge and the contentions of the FCI authorities who are the appellants herein, were not accepted by summing up as under:- "The L-2 tenderer had quoted Rs. 2,799.00 for a distance of 243 KMs and, based on the same, the rate of Rs. 11.52 per MT per KM was arrived at by the respondent authorities. The petitioner had quoted Rs. 11.41 per MT per KM and thus he had emerged as the L-1 tenderer. However, the respondents have now taken the said rate of Rs. 2,799.00 to be the rate offered by the L-2 tenderer for the distance of 295.1 KMs, which is not the case.
The petitioner had quoted Rs. 11.41 per MT per KM and thus he had emerged as the L-1 tenderer. However, the respondents have now taken the said rate of Rs. 2,799.00 to be the rate offered by the L-2 tenderer for the distance of 295.1 KMs, which is not the case. The NIT itself made it very clear that the rate per MT shall be as per MTF and if the rate is quoted otherwise, rate per MT per KM will be worked out taking the distance as notified in the NIT, which is 243 KMs. In this factual background, the exercise undertaken by the respondents to find out as to what would have been the rate of L-2 bidder for per MT per KM, by dividing Rs. 2,799.00 by 295.1 KM, is arbitrary, irrational and defies all logic. When the petitioners had quoted a rate for per MT per KM, the rate of the petitioners should have been applied for the entire distance instead of trying to figure out as to what would have been the rate of L-2 bidder for the distance of 295.1 KMs. Who knows what rate he would have quoted for 295.1 KMs. That apart, the NIT does not provide taking of such a recourse. It also appears that the respondents had reduced the rate of Rs. 11.41 per MT per KM quoted by the petitioners to Rs. 9.48 per MT per KM for the entire distance of 295.1 KMs. In the considered opinion of the court, the calculations made have no basic and logic whatsoever." 14. The grounds urged in the instant appeal are that the learned Single Judge did not consider that the petitioner firm was a regular transport contractor and having been working in the field of transportation contract, was aware about the actual distance between Ex-Rly. Siding, Salchapra and FCI FSD Arundhutinagar (Tripura) via weighbridge and had quoted its rate accordingly after having verified the actual distance from point to point. The further ground urged was that the change of position of the petitioner firm from L-1 bidder to L-2 bidder in view of the re calculation so made by the appellants was not taking into consideration. 15.
The further ground urged was that the change of position of the petitioner firm from L-1 bidder to L-2 bidder in view of the re calculation so made by the appellants was not taking into consideration. 15. It is a settled position that the terms and conditions of a tender process notified are not to be deviated by the tendering authority in the ordinary course and the bidders are required to abide by the terms and conditions so notified scrupulously. As it was the requirement of the NIeT for the bidders, in the instant case, to quote their rates as per MT per KM basis, the petitioner firm had, in clear terms, quoted its rate at Rs. 11.41/- per MT per KM and it does not lie on the part of the appellants herein to add anything further therein, when the condition in the NIeT clearly specified to submit the rate in that manner. As the NIeT clearly mentioned the distance from Ex-Rly. Siding, Salchapra to FCIFSD Arun-dhutinagar (Tripura) via weighbridge as 243 KMs, it was not open for the appellants to re-calculate the rate quoted by the L-1 bidder on any other basis to their convenience by referring to the rate quoted by the L-2 bidder who did not quote in the specific manner stipulated by the condition, noted above, in the NIeT and when they found out that the distance they specified in the NIeT for the intending bidders to quote their rates was incorrect. The appellants appeared to have worked out the revised rate of Rs. 9.48/- per MT per KM as if the L-2 bidder had quoted its rate of Rs. 2,799/- for the entire 295.10 KMs when the appellants herein had quoted the distance specifically as 243 KMs. The basis of the revised rate of Rs. 9.48/- per MT per KM was the rate quoted by L-2 tenderer. The said L-2 tenderer submitted its bid for the work in question at Rs. 2,799/-. In terms of the clause in the NIeT, quoted in paragraph 4 herein above, the respondent authorities converted the said amount of Rs. 2,799/- into per MT per KM basis taking the said rate quoted by the L-2 tenderer for the distance of 295.10 KMs, instead of 243 KMs, and arrived at the said revised rate of Rs. 9.48/- per MT per KM.
2,799/- into per MT per KM basis taking the said rate quoted by the L-2 tenderer for the distance of 295.10 KMs, instead of 243 KMs, and arrived at the said revised rate of Rs. 9.48/- per MT per KM. The distance of 295.10 KMs was only found at a later point of time by the appellants when it was represented to them by the petitioner firm. It does not also lie on the part of the appellants herein to contend that the petitioner firm being a regular contractor, was aware of the distance between Ex-Rly. Siding, Salchapra and FCI FSD Arundhutinagar (Tripura) via weighbridge as in a tender process, there is no discretion for assumption to the bidders. It is not the case of the appellants that they had floated the tender process for transportation of food grains between the two locations for the first time. Rather, the appellants are also in the same business for a long time. It may be noted that there is neither any material on record nor it was contended on behalf of the appellants that the L-2 bidder after being declared L-2 bidder and the petitioner firm, having been declared L-1 bidder, was awarded with the contract, the L-2 bidder had protested, at any time, by mentioning before the appellants that their rate was Rs. 9.48/- per MT per KM for the entire distance of 295.10 KMs and not for 243 KMs. It was never explained by the appellants as to why, keeping the relevant clause of NIeT quoted in paragraph 4 above into consideration, the rate of Rs. 2,799/- quoted by the L-2 bidder was not found to be the lowest at the time of bid evaluation and award of the transport contract in favour of the petitioner firm. 16. In view of the above, the reasons assigned by the learned Single Judge to find the calculation made by the appellants in respect of the additional distance and revised rate baseless and beyond logic, are found to be justified and, therefore, we find no good and sufficient reason to differ with the decision arrived at the learned Single Judge. Resultantly, this writ appeal being bereft of any merit, stands dismissed. The appellants are required to comply with the directions made in the judgment and order dated 03.04.2018 made in the writ petition. There shall be no order as to cost.