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2020 DIGILAW 723 (TS)

Tharu & Sons v. Union of India

2020-10-07

CHALLA KODANDA RAM

body2020
ORDER : Challa Kodanda Ram, J. 1. Petitioner challenges the award of contract in favour of respondent No. 5 as L1 pursuant to the tender notification dated 07.04.2020 issued for carrying out housekeeping of depot premises at coaching depot, Secunderabad, for a period of two (2) years. 2. The tenderer is required to submit the bid online between 27.04.2020 and 11.05.2020 in the prescribed format, as specified in Chapter-4, in which, the bidders are required to quote, and if there is any deviation, the bid submitted by the bidders will be considered as non-responsive. So far as Schedule-1, manpower, is concerned, the bidder is required to quote the offer percentage, which should not be in the negative figure. With respect to Schedule-2, cost of uniform, tooling implements & cleaning agents, it can be '+' or '-' percentage of the indicative figures. With respect to the said schedules, values of the amounts over and above the percentage can be quoted as specified. Basically, the successful bidder shall adhere to all the labour related laws with respect to the payment and other facilities as prevailing and is required to depute 45 unskilled labourers and 1 supervisor per day to carry out the housekeeping activity. 3. Respondent Nos. 1 to 4 filed a counter-affidavit, according to which, the bidders are entitled to revise their bids any number of times in the platform till the last date of submission. So far as the petitioner is concerned, its bid value is Rs. 2,90,42,002.76 ps. The tenderer is required to strictly adhere to the format and the method indicated in the tender document for offering the bid. There is also Price Variation Clause incorporated in the tender schedule vide para 1.25 of Chapter-1 (Annexure R-3). Respondent Nos. 5 and 6 were qualified as L1 & L2, whereas, the petitioner as L3. As minimum wages are revised periodically from the date of opening till completion of contract, all such revisions are compensated by operating Price Variation Clause. 4. In the counter-affidavit filed by respondent No. 5, it is asserted that as the petitioner has quoted 4.32% above to meet the revised cost of manpower, Rs. 51.55 ps. As minimum wages are revised periodically from the date of opening till completion of contract, all such revisions are compensated by operating Price Variation Clause. 4. In the counter-affidavit filed by respondent No. 5, it is asserted that as the petitioner has quoted 4.32% above to meet the revised cost of manpower, Rs. 51.55 ps. is not sufficient to procure any material for execution of the work and it has not submitted any document in support of the same and that by the date of the petitioner giving letter dated 23.06.2020 to take advantage of its bid, the tender was already finalized and Letter of Acceptance was issued on 18.06.2020. 5. It is the contention of the learned counsel for the petitioner that the amount quoted by respondent No. 5 is less than the minimum wages prevailing as on the date of the submission of the bid or as on the date of the tender closing, whereas, the petitioner by taking into consideration the enhancement of minimum wages vide order dated 08.05.2020 had just quoted 4.32% in addition to the amount indicated in the tender notice, and that respondent Nos. 5 and 6 had quoted AT PAR with bid rate i.e., 0% increase. It is further contended that so far as respondent Nos. 5 and 6 are concerned, the amount payable to the worker would be worked out to Rs. 603/- per day, but, the minimum wage would be Rs. 629/- and that the petitioner's bid should not have been denied on the ground that its bid is in violation of the tender conditions. It is further contended that the petitioner had in fact, submitted its bid on 01.05.2020 quoting 0% i.e., at par of the indicative price with regard to Schedule-1. As against Schedule-2, the petitioner had quoted Rs. 51.55 ps (99.99% below the bid rate). Thus, the offer of the petitioner is for a total sum of Rs. 2,90,42,002.70 ps., whereas, respondent No. 5 had quoted for Schedule-1 at par with 0% increase and for Schedule-2, 63.50% below the bid rate and the total consolidated figure is Rs. 2,80,27,440.41 ps. It is also contended that the amount quoted by respondent No. 5 for Schedule-1 being at par is in contravention of the order dated 08.05.2020 passed by the Government of India. 2,80,27,440.41 ps. It is also contended that the amount quoted by respondent No. 5 for Schedule-1 being at par is in contravention of the order dated 08.05.2020 passed by the Government of India. He places reliance on the judgment of this Court in Chaithanya Bharathi Grameena Abhivrudhi Samsthe v. The General Manager, South Western Railway and others, (W.P. No. 11532/2015(GM-TEN) and submits that the issue therein is identical to the issue in the case on hand. He also relied on the judgment of Calcutta High Court in M/s. Jaiswal Brothers v. Union of India and others WP 5650(W) of 2017. 6. On 08.05.2020, the Government of India passed order vide notification bearing S.O.186(E) dated 19.01.2017 enhancing the minimum wages payable to the persons employed in agriculture with effect from 01.04.2020. 7. There is no dispute with regard to the method and manner, in which, the intending bidder is required to submit their offer in the prescribed form and non-adherence to the same would result in an offer being non-responsive. In terms of the tender schedule, as stated supra, the tenderer is required to offer their bid on the specified figures by way of adding percentage. The percentage should be over and above the specified figure with regard to Schedule-1 and there is liberty for quoting less than the specified figure with regard to Schedule-2. It could be clarified that with regard to Schedule-1, it is open for the tenderer to offer 0% i.e., -nil-increase. It is pointed out by the learned counsel for the petitioner that the amount offered by respondent No. 5 is not as per the minimum wages criteria, as, it is required to pay minimum wages for 45 workers by applying the minimum wages, as notified in the order dated 08.05.2020 with effect from 01.04.2020, and that the bid is required to be evaluated basing on the minimum wages criteria existing as on the date of bid opening. However, there is no dispute that a tenderer can submit the offer at any time before 27.04.2020 to 11.05.2020. In a given case, the tenderer, who submitted the bid on 27.04.2020, would have no opportunity to include the revised minimum wages criteria as on 08.05.2020. 8. However, there is no dispute that a tenderer can submit the offer at any time before 27.04.2020 to 11.05.2020. In a given case, the tenderer, who submitted the bid on 27.04.2020, would have no opportunity to include the revised minimum wages criteria as on 08.05.2020. 8. It may be borne in mind that the process of tendering would get preceded by making estimates, standardizing the tender document and giving an advertisement to call for the offers by publishing in newspapers as well as in the web portal, and consideration of the offers would result in finalization of the tender. Therefore, it is for that reason, this Court is required to consider whether there is any price variation notified. 9. Be that as it may, as stated above, the tender process would get preceded by two months time and there is every possibility of variations with respect to various parameters and if that be so, there would be no certainty. In view of the same, the price variation clause has been incorporated. It may be noted that by virtue of Section 64A of the Sale of Goods Act, variation in the tax rates would be taken into consideration with regard to the execution of the works. Further, in the case on hand, the contractor should pay minimum wages. However, a tender is not called for supply of labour. The scope of work is housekeeping. Further, the minimum wages are notified in the order dated 08.05.2020. Whether the said rates would apply to the case on hand or not is required to be considered. At any rate, it is not necessary for this Court to enter into that arena at all, as, the tender committee, which is required to examine these issues, had already considered the same. But, the argument of the learned counsel for the petitioner that there being arbitrariness in the process, this Court is not required to interfere with the entire process, is absurd. 10. If the offer of the petitioner for the items mentioned in Schedule-2 at Rs. 51.55 ps., as against an estimated value of Rs. 5,65,471/-, is required to be considered, as, it had quoted the minimum wages in terms of the order dated 08.05.2020, then, it requires to explain how it would provide for the same. 10. If the offer of the petitioner for the items mentioned in Schedule-2 at Rs. 51.55 ps., as against an estimated value of Rs. 5,65,471/-, is required to be considered, as, it had quoted the minimum wages in terms of the order dated 08.05.2020, then, it requires to explain how it would provide for the same. One can imagine the work of housekeeping, which the petitioner would be able to do at the cost of Rs. 51/-. This is mentioned only to highlight that being an intending bidder or a contractor would have his own ways of working out the margins and if not, inviting a competent bidder for obtaining best possible rate. There would have been no occasion or need for the railways to adopt the methodology of inviting a tender and going through the entire process for the works to be executed. Further, the contractors would take their own risk in completion of the contract. 11. This Court has very limited scope of judicial review so far as the decisions, which were relied on by the learned counsel for the petitioner, are concerned. In Chaithanya Bharathi Grameena Abhivrudhi Samsthe (supra), the very tender notice clearly indicates that the Contractor shall not quote less than the minimum wages i.e., fixed by the competent authority, and by the date of the tender notice, the minimum wages are already notified and the successful bidder therein had quoted less than the minimum wages. The intending bidders were required to drop their tenders between 13.10.2014 and 15.10.2014, whereas, enhancement of minimum wages order was dated 29.09.2014 and the tender notice was dated 02.09.2014. 12. In the present case, it is stated that the successful contractor is required to adhere to the labour laws including all statutory entitlements for the workers. Further, the bids were required to be submitted between 27.04.2020 and 11.05.2020. In other words, the bidder, who submitted the bid on 27.04.2020, could not have expected that there would be revision on 08.05.2020 with respect to the minimum wages, that too, with retrospective effect i.e., from 01.04.2020. Hence, it would be reasonable for this Court to presume that the tendering authority included price variation clause in view of such contingency and declaration of respondent No. 5 as L1 is required to be considered in that angle. 13. Hence, it would be reasonable for this Court to presume that the tendering authority included price variation clause in view of such contingency and declaration of respondent No. 5 as L1 is required to be considered in that angle. 13. In those circumstances, the judgment in Chaithanya Bharathi Grameena Abhivrudhi Samsthe (supra) has no application to the facts of the given case. Likewise, in M/s. Jaiswal Brothers (supra), the successful bidder had quoted lesser amount than the minimum wages fixed. This Court is unable to agree with the observations made therein to the effect that the railways would not take action in case the Contractor not paying minimum wages as they were conjectures and speculative. 14. In those circumstances, this Court does not find any merit in this Writ Petition. 15. This Writ Petition is accordingly dismissed. 16. Miscellaneous applications, if any pending, shall also stand dismissed. There shall be no order as to costs.