in the gauhati high courtghconline.nic.in/judgment/wpc27182011.pdfpartner sri r.p. kakoti, son of...

W.P(C) No. 2718 of 2011 & W.P(C) No. 5211 of 2011 of 1

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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,

TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

1. W.P(C) No. 2718 of 2011

Petitioners:

1. M/s. Khirud Kumar Bordoloi, A proprietorship firm being represented by its proprietor Sri Khirud Kumar Bordoloi, son of Sri Umesh Chandra Bordoloi, Resident of Sarvodaya Adarsh Gaon, Post Office, Gargaon, District: Sivasager, Assam. 2. M/s. Welldo Enterprise, A proprietorship firm being represented by its authorized signatory Sri Jhantu Das, Son of Sri Jogadish Chandra Das, Resident of Babu Patty, Sivasagar, Post office:Sivasagar, Dist. Sivasagar, Assam. 3. M/s. J.M. Agarwalla & Co., A partnership firm being represented by its partner Sri Sanjay Kumar Jhuria, Son of Late J. M Agarwalla, Resident of B.G. Road, Post office & District: Sivasagar, Assam. 4. M/s. R. L. Agarwalla & Co., A partnership firm being represented by its partner Sri Ranji Lal Agarwall, son of Sri Late Hari Bux Agarwalla, Resident of B.G. Road, Post Office & District: Sivasagar, Assam. 5. M/s. B.K. Gogoi, A proprietorship firm being represented by its proprietor Sri Budhin Kumar Gogoi Son of Late Jagat Gogoi, Care of Madhav Timber. A.T Road, Sivsagar, Post office & District-Sivasagar, Assam. 6. M/S Khagen Gogoi, A Proprietorship firm being represented by its proprietor Sri Khagen Gogoi, Son of Late Indreswa Gogoi, Resident of Solapathar near GGS-1, Post Office : Lakwa, District : Sivasagar, Assam. 7. M/S Ruhini Gogoi, A Proprietorship firm being represented by its proprietor Sri Ruhini Gogoi, Son of


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Late Dharmeswar Gogoi, Resident of Mout Gaon, Post Office, Mout Gaon, District :Sivasagar, Assam. 8. M/S Pradip Kr. Dutta, A proprietorship firm being represented by its proprietor Sri Pradip Kumar Dutta, Son of Sri Debenanda Dutta, Resident of Janaki Nagar, Post Office : Dhuliapar, District : Sivasagar, Assam. 9. M/s. Engineering Enterprise, A proprietorship firm being represented by its proprietor Sri Chittaranjan Boruah, Son of Sri Durgeswar Sarmah Bourah, Resident of BOC Gate, Post Office : Duliajan, District : Dibrugarh, Assam. 10. M/s. S. M. Agarwalla, A partnership firm being represented by its partner Sri Sanwarmal Agarwalla, Son of Late H.P. Agarwalla, Resident of Station Road, Post office : Nazira Dist: Saivasagar, Assam. 11. M/s. Gajanand Agarwalla. A proprietorship firm being represented by its partner Sri Gajand Agarwalla, Son of Late Dhiraj Agarwalla, Resident of Singh Doullah Road, Post office & District-Sivasagar, Assam. 12. M/s. Pradip Sharma, A partnership firm being represented by its authorized signatory Sri Diganta Mishra, Resident of Khijnoor Ali Road, Post Office & District Sivasager, Assam. 13. M/s. Kakoti Engineering Works. A partnership firm being represented by its partner Sri R.P. Kakoti, Son of Late Ram Prasad Kakoti, Resident of A.T Road, Post Office & District : Saivasagar, Assam.

14. M/s. Swastik Engineering Works, A proprietorship firm being represented by its proprietor Sri Shiv Bhagwan Agarwalla, Son of Late Hariram Agawalla, Resident of Old Balibat, Jorhat, Post Office & District : Jorhat, Assam.

15. M/s. Santosh Sahewalla, A partnership firm being represented by its partner Shi Santosh Sahewalla, Son of Late Surajmal Sahewalla, Resident of


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L.K.B Road, Post office & Dist: Sivasagar, Assam. 16. M/s. Lakwa Construction & Co., A partnership firm being represented by its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High School, District: Sivasagar, Assam.

By Advocate :

Mr. N. Dutta, Senior Advocate, Mr. N.N. B. Choudhury, Advocate, Mr. M. H. Choudhury, Advocate.

Respondents :

1. The Oil and Natural Gas Corporation Ltd. (A Company constituted under the provisions of Indian Companies Act, 1956 having its head office at Jeewan Bharati Tower II, 124 Connought Circus, New Delhi) 2. The Executive Director, ONGC, ERBC, Assam, Asset, Nazira, Post Office : Nazira, District : Sibsagar, Assam. 3. The Group Manager – HMM, ONGCL, ERBC, Assam Asset, Nazira, Post Office : Nazira, Dist. Sivasagar, Assam. 4. The Manager(MM), R.O.B II, ONGCL, Nazira, Post Office; Nazira, District. Sivasagar, Assam. 5. M/s. Salasar Steel Udyog, A.T Road, Sivasagar- 785 640.

6. M/s.B. K. Agarwalla, P.O. Athkhel, Sivasagar, Pin-785 696. 7. M/s. Assam Petroleum Limited, Sundarpur, Bye Lane-1 R.G. Baruah Road, Guwahati-781005. 8. M/s. Lakwa Steel Constriction, T.D Chaliha Road, Amolapatty, Sivasagar-785640.

9. M/s. Jintu Dutta, Phukan Nagar, Kali bari Road, P.O. Sivasagar-785 640.


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10. M/s. Kalyan Enterprises, Bolola, Kukurachua Gaon, P.O. Nongalamora, P.S. Nemuguri,Sivasagar. 11. M/s. Assam Equipement & Energy Service Pvt. Ltd., HCB Road, Legal Metrology Office compound, New Amolapatty, Sivasagar-785640. 12. M/s. Rangpur Steel Udyog, B.G Road,Sivasagar-785 640. 13. M/s. Nirmal Kumar Jhuria, B.G.Road, Sivasagar -785 640. 14. M/s. Trije Engineers, F-15, Panch Ratna Complex, NR Jain Char Rasta, Mehsana-2, Gujarat.

15. M/s. DU-Point Engg Works. 15/B, Harinagar Society, NR Jain Temple, Highway, Mehsana-384 002. 16. M/s. Mech Technik (India) Pvt. Ltd. East Pont Tower, Mani Ram Dewan Road, Bamunimaidam, Guwahati -781 021. 17. M/s. J.M. Engineering & Co. Jyoti Nagar, P.O-Parbatpur, Dibrugarh-786 623. 18. M/s. Zeeneel Construction & Maintenance, G-1, Dharmendra Appt., Jona Park Society, Highway, Mehsana – 384 002.

19. M/s. Kakoti Engineering Wroks Pvt. Ltd., A.T. Road,Sivasagar-785 640. By Advocate :

Mr. K. N. Choudhury, Senior Advocate. Mr. N. Anix Singh, Advocate. Mr. J.I. Borbhuia, Advocate.

2. W.P(C) No. 5211 of 2011

Petitioner:

M/s. Zeeneel Construction & Maintenance, A partnership firm, represented by one of its partner Shri Naresh Kumar Chaturbhai Prajapat, having its registered office at G-1, Dharnendra Apartments, Jonapark


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Society, Near Gayatri Temple, Highway road, Mehesana, Gujarat, Police Station: Mahesana, PIN – 384002, Gujarat.

By Advocates :

Mr. D. Das, Senior Advocate. Mr. R. Sinha, Advocate. Respondents :

1. The Union of India, Represented by its Secretary, Petroleum Department, New Delhi.

2. The Oil and Natural Gas Corporation Ltd. (A company constituted under the provisions of Indian companies Act, 1956) having its head office at Jeewan Bharati Tower II, 124 connought circus, New Delhi.

3. The Executive Director, ONGC, ERBC, Assam, Asset, Nazira, Post Office: Nazira, District: Sivasagar, Assam.

4. The Group Manager-HMM, ONGCL, ERBC, Assam Asset, Nazira, Post Office, Nazira, District: Sivasagar, Assam. 5. The Manager (MM), R.O.B.II, ONGCL, Nazira, Post Office: Nazira, District: Sivasagar, Assam.

6. M/s. Lakwa Steel Construction. A partnership firm being represented by its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High School, District: Sivasagar, Assam, PIN- 785 640.

7. M/s. Assam Equipment & Energy Service Pvt. Ltd. A partnership firm being being represented by one of its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High School, District: Sivasagar, Assam, PIN- 785 640.

8. M/s. Lakwa Construction & Co., A partnership firm being represented by its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High


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School, District: Sivasagar, Assam, PIN- 785 640. 9. M/s. Salasar Steel Udyog, A.T Road, Sivasagar- 785 640. 10. M/s. Rangpur Steel Udyog, Sivasagar. Represented by one of its partner Mr. Rajesh Agarwalla, son of Ramji Lal Agarwalla, Resident of B.G. Road, Sivasagar, Assam, Pin- 785 640.

11. M/s. M/s. N. K. Jjuria, A partnership firm being represented by its partner Sri Nirmal Kumar Jhuria, Police Station:Sivasagar, District: Sivasagar, Assam, PIN- 785 640.

12. M/s. J.M. Agarwalla, A partnership firm being represented by its partner Sri Sanjay Kumar Jhuria, Son of Late J.M Agarwalla, Resident of B.G. Road, Post office & District: Sivasagar, Assam, Sivasager.

13. M/s. R. L. Agarwalla & Co., A partnership firm being represented by its partner Sri Rajesh Agarwall, son of Sri Ramji Lal Agarwalla, Resident of B.G. Road, Post Office & District: Sivasagar, Assam.

14. M/s. Trije Engineers, Rept. by Sri Gautam Bhai Bechardas Patel, D-40, First Floor, Pancharntna Complex, near Modhera Charasta Highway, Mehsana, Gujarat, PIN- 384002.

15. M/s. DU Point Engg. Works, Rept. by Bishnu Bhai Pajidas Patel, D-40, First Floor, Pancharntna Complex, near Modhera Charasta Highway, Mehsana, Gujarat, PIN- 384002.

16. M/s. Pradip Sharma, A partnership firm being represented by its authorized signatory Sri Diganta Mishra, Resident of Khijnoor Ali Road, Post Office & District Sivasager, Assam. 17. M/s. Welldo Enterprise, A proprietorship firm being represented by its authorized signatory Sri Jhantu Das, Son of Sri Jogadish Chandra Das,


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Resident of Babu Patty, Sivasagar, Post office:Sivasagar, Dist.Sivasagar, Assam. 18. M/s. B.K. Gogoi, A proprietorship firm being represented by its proprietor Sri Budhin Kumar Gogoi Son of Late Jagat Gogoi, Care of Madhav Timber. A.T Road, Sivsagar, Post office & District-Sivasagar, Assam. 19. M/s. Gajanand Agarwalla. A proprietorship firm being represented by its partner Sri Gajand Agarwalla, Son of Late Dhiraj Agarwalla, Resident of Singh Doullah Road, Post office & District-Sivasagar, Assam. 20. M/S Pradip Kr. Dutta, A proprietorship firm being represented by its proprietor Sri Pradip Kumar Dutta, Son of Sri Debenanda Dutta, Resident of Janaki Nagar, Post Office : Dhuliapar, District : Sivasagar, Assam.

21. M/S Sontosh Sahewalla, A partnership firm being represented by its partner Sri Santosh Sahewalla, Son of Late Surajmal Sahewalla, Resident of L.K. B. road, Post Office & District, Sivasagar, Assam, Pin-785640. 22. M/S Kalyan Enterprise, A partnership firm being represented by its partner Sri Kalyan Gogoi, Bokota Nemugiri, Post Office & Police Station : Titai Pukhuri, Sivasagar, Assam, Pin-785 685.

23. M/S Ruhini Gogoi, A Proprietorship firm being represented by its proprietor Sri Ruhini Gogoi, Son of Late Dharmeswar Gogoi, Resident of Mout Gaon, Lakwa, Post Office, Mout Gaon, District :Sivasagar, Assam. Pin. 785688.

24. M/S Khagen Gogoi, A Proprietorship firm being represented by its proprietor Sri Khagen Gogoi, Son of Late Indreswa Gogoi, Resident of Solapathar near GGS-1, Post Office : Lakwa, District : Sivasagar, Assam. 25. M/S Jintu Dutta, Represented by its partner Sri Jintu Dutta, Resident of


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Phukan Nagar, Post Office; Phukan Nager, Police Station : Sivvsagar, Sivasagar, Assam, Pin-785 640. 26. M/s. Mech Technik (India) Pvt. Ltd. Guwahati. C/o.M/s. Lakwa Construction & Co., A partnership firm being represented by its partner Sri Arindam Baruah, Son of Sri Puto Baruah Amolapatty, Phanidhar Chaliha path, Behind Kamakhya Girls High School, District: Sivasagar, Assam, PIN- 785 640. 27. M/s. K. K. Bordoloi, A proprietorship firm being represented by its proprietor Sri Khirud Kumar Bordoloi, Son of Umesh Chandra Bordoloi, Resident of Sarvodaya Adarsh Gaon, Post Office : Gargaon, Dist: Saivasagar, Assam. 28. M/s. J.M. Engineering & Co., Jyoti Nagar, Post Officer: Parbatpur, Dibrugarh- 786 623. 29. M/s. Engineering Enterprise, A proprietorship firm being represented by its proprietor Sri Chittaranjan Boruah, Son of Sri Durgeswar Sarmah Bourah, Resident of BOC Gate, Post Office : Duliajan, District : Dibrugarh, Assam. 30. M/s. Kakoti Engineering Works Pvt. Ltd. A partnership firm being represented by its partner Sri R.P. Kakoti, Son of Late Ram Prasad Kakoti, Resident of A.T Road, Post Office & District : Saivasagar, Assam.

31. M/s. B.K. Agarwalla Geleky, Represented by Sri Biju Kr. Agarwalla, Athkel Agleky, P.O & P.S : Geleky, Dist: Saivasagar, Assam. PIN- 785685.

32. M/s. S. M. Agarwalla, A partnership firm being represented by its partner Sri Sanwarmal Agarwalla, Son of Late H.P. Agarwalla, Resident of Station Road, Post office : Nazira Dist: Saivasagar, Assam. 33. M/s. Swastik Engineering Works, A proprietorship firm being represented by its proprietor Sri Shiv Bhagwan Agarwalla, Son of Late Hariram Agawalla,


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Resident of Old Balibat, Jorhat, Post Office & District : Jorhat, Assam.

34. M/s. Kakoti Engineering Works, A partnership firm being represented by its partner Sri R.P. Kakato, Son of Late Ram Prasad Kakoti, Resident of A.T. Road, Post Office & Dist. Sivasagar, Assam.

By Advocates:

Mr. K. N. Choudhury, Advocate. Mr. B. K. Das, Advocate.

B E F O R E THE HON’BLE MR. JUSTICE S. TALAPATRA

Date of hearing : 23rd February, 2012. Date of Judgment : 6th August, 2012.

J U D G M E N T AND O R D E R

The writ petitions are tied up on considering that a common

thread of the challenge binds by the genus and also for the reason that

sans some variation of facts, commonness is discernible to which the

learned counsel for the parties as well have agreed to.

2. The grievance in both the cases emanates from a

corrigendum dated 02.05.2011 by enlarging the scope of participation of

the prospective bidders after pre-bid conference held on 06.12.2010 in

respect of the tender No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-

11/R16TC10006 dated 08.11.2010 was issued by the competent authority

of the ONGC for collecting rate contract for laying of Oil/Gas/Water

injection pipelines in the oil field of Assam Asset in W.P(C) No. 5211 of

2011 (M/s. Zeeneel Construction & Maintenance Vrs. Union of India and

Others) hereinafter referred to as the Zeeneel. The similar tender was


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floated by the competent authority in the ONGC by the Notice Inviting

Tender No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-11/R16TC10006 dated

08.11.2010 for laying of Oil/Gas/Water injection pipelines in the oil field of

Assam Asset in the W.P(c) No. 2718 of 2011 (in the matter of M/s. Khirud

Kumar Bordoloi and 15 others Vrs. The Oil and Natural Gas Corporation

Ltd. and others) hereinafter referred to as the Bordoloi. Other grievances

as ancillary are related to acceptance of the rate as quoted by the L1,

which far below than the work rate and changes as made in the wake of

the said corrigendum.

Some essential facts as reflected in the records may briefly

be noted for appreciation of the challenge and also for locating the factual

variation between two writ petitions:

3. W.P(C) No. 2718 of 2011

The petitioner are firms engaged in various contract works

awarded by the ONGC and other firms and executing the rate contract for

laying of Oil/Gas/Water injection pipelines in the oil field of Assam Asset

ONGC for the period of 2008-2011. On 08.11.2010 the ONGC Ltd issued

the Notice Inviting Tender (NIT for short) as stated for laying of

Oil/Gas/Water injection pipelines in the oil field of Assam Asset for a period

of three years. The date of opening of the tender was fixed on 11.01.2011.

The said NIT did not contain the MOU/Joint Venture/Consortium clause as

the tender committee of the ONGC was of the view that already there

existed 21 bidders in the fray and keeping the MOU/ Joint

Venture/Consortium clause would lead to participation of more small and

inexperienced vendor. The petitioners asserted that the tender committee

took conscious decision to keep such experienced small vendors at bay


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from the tender process. After the tender papers were collected by the

petitioners, the pre-bid consultation was held between the intending

bidders and the ONGC on 06.12.2010. The petitioners projected certain

queries and explanation, such as reimbursement of service tax by the

ONGC and they illustrated the example of reimbursement from the other

Assets of the ONGC. After the pre bid conference, the ONGC limited issued

a corrigendum under No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-11

dated 02.05.2011 bringing some modifications of the original tender and

also incorporating the clause of the MOU/ Joint Venture/Consortium bids,

the last date of submissions of tenders and opening date of the tenders on

31.05.2011. The said corrigendum is available at Annexure-IV. The

petitioners also submitted that the said corrigendum is also silent about

the issue of reimbursement of the service tax. The petitioners further

asserted that previously also the tenders were settled without the said

MOU/ Joint Venture/Consortium clause. As such the legality of the

corrigendum has been questioned in the writ petition. While dilating the

challenge a further ahead, the petitioner strongly contended that by

holding the pre bid consultation the standard terms and conditions of the

NIT cannot be changed as the purpose of pre bid conference has been

well-delineated. It is provided in Clause 6(1) of the NIT and according to

the petitioner the terms and conditions which are not part of the

standard terms and conditions of the tender can only be modified. The

standard terms and conditions includes “General Conditions of Contract”,

“Specific Conditions of Contract” and “Bid Evaluation Criteria”. The MOU

clause being part of the bid evaluation criteria cannot be modified as a

result of any pre-bid conference. Moreover, reimbursement of the service

tax which was raised in the pre bid conference was not taken care by the


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ONGC. The petitioners laid bare their apprehension stating that

participation of the MOU/ Joint Venture/Consortium of the small vendors

would result in abnormally low rate and ultimately push to the retendering.

The petitioners submit that inclusion of the MOU clause by way of said

corrigendum would only affect the interest of the petitioners bringing

about heavy losses. The petitioners’ contention is not cloaked but bare that

when there is no dearth of technically sound vendors, the inclusion of the

MOU clause for inducting the small vendors in the name of consortium or

joint venture is nothing short of a colourable exercise of power of collateral

purpose which cannot be stated a valid action in the touchstone of Article

14 of the Constitution.

4. W.P(C) No. 5211 of 2011

The petitioner has been dealing and executing various

contract works under the Oil and Natural Gas Corporation Limited, the

ONGC and other Government and semi Government Departments. The

petitioners firm was awarded contract for hiring of rate contract for laying

and maintenance of underground carbon steel pipelines in various fields of

Mehsana Asset for a period of 3 (three) years 2008-2011 and the firm had

executed the work for Mehsana Asset. In response to the Notice Inviting

Tender (for short NIT) No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-

11/R16TC10006 dated 08.11.2010 for laying of Oil/Gas/Water injection

pipelines in the oil field of Assam Asset for a period of three years the

petitioners intended to participate in the tender. The last date of opening

of the tender was fixed on 11.01.2011. The said tender also did not

include the MOU/ Joint Venture/Consortium clause since the tendering

committee has been of the view that there are existing 21 bidders in the


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process and retention of MOU/Joint Venture/Consortium clause would lead

to participation of more small and inexperienced vendors in the bid and

that would further lead to abnormal rates and ultimately to retendering.

The petitioners collected the tender papers and participated in the pre-bid

conference on 06.12.2010 where some inexperienced bidders raised query

regarding inclusion of the MOU clause. Thereafter, the ONGC authority

issued a corrigendum No. NZR/MM/SC/ES/AMC-Flow Line/03/2010-11

dated 02.05.2011 for purpose of carrying out some modifications in the

original tender terms. Also for inclusion of the MOU/ Joint

Venture/Consortium clause. The last date of submission of the tender was

re-fixed on 31.05.2011. The said corrigendum is available at Annexure-II.

After such corrigendum was issued the petitioners on due compliance of

the tender condition submitted the tender papers. On 31.05.2011 when

the petitioner along with other tenderers appeared in the office of the

General Manager, the ONGC, Nazira they are informed that a writ petition

was moved before this Court by one of the prospective tenderers for

setting aside the tender dated 08.11.2010 and the corrigendum dated

02.05.2011. On the basis of such information the petitioner came to know

about the existence of the other writ petition being W. P.(C) No. 2718 of

2011 as filed by one of the prospective tenderers. By the order dated

27.05.2011 this Court directed the ONGC not to finalize the tender process.

The ONGC opened the Techno Commercial Bid on 31.05.2011 and

thereafter price bid was opened on 07.09.2011. 30 firms participated in the

tender process and on opening of the price bid it surfaced that the lowest

bidder namely M/s. Lakwa Steel Construction, Sivasager quoted 42.60%

below the rate provided in the schedule of rate. The petitioner has

provided the elaborate information regarding the rate quoted by all 30


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firms and thereafter contended that the ONGC on 20.09.2011 by a e-mail

asked the petitioner referring to the rate quoted by the L1 bidder i.e.

42.60% below the schedule rate of the tender requested to match its price

with the L1 price. The petitioner was categorically asked to confirm yes or

no in the enclosed confirmation format in separate sealed covers for A and

B i.e. SBS(-) ZRT(-) latest by 19.09.2011. The L1’s rate is further below by

27.6% than the work rate. In the backdrop of the startling upward mobility

of the price of materials particularly Steel, aluminum pipe, Synthetic

enamel points, various mm ND Pipe etc. it is an unworkable rate as the

price came down to Rs. 76 per metre. Whereas the petitioner was

awarded the contract work for the period from 2008 to 2011 at Rs. 132.25

which is 15% above the previous years price. The contract work for 2011

to 2014 would have been fixed 15% above the earlier rate of the existing

contract for the period of 2008-2011. The petitioner has narrated his own

experience while executing the rate contract for laying and maintenance of

underground carbon steel pipelines in various field of Mehesana Asset for

a period of three years. The petitioners’ grievance as emerged from the

said narrative is that the ONGC has accepted the L1 bid of the respondent

No. 6 without making any alalysis of the rate and that itself shows lack of

appreciation of the relevant factors contributing to the workable rate. The

petitioner also for this purpose referred to the clause 5.4 of the pre-

tendering activity of the said Work Manual of 2007 which reads as under:

“5.4. The accuracy range of estimates prepared

on the basis of schedule of quantities and

schedule of rates as mentioned above shall be

considered as + /- 10%”


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As per Clause 56.0 to 56.6 of award of work of the said Work

Manual also read as follows:

“56.0 PRESCRIBED LIMITS FOR ACCEPTANCE

OF TENDER

Discounts/rebates offered by any tenderer

shall not be considered for evaluation of

tenders. However, if the lowest bidder

happens to be the final acceptable tender4er

for award of contract and if he had offered any

discount/rebate, the contract shall be awarded

after taking into consideration such

discount/rebate. These provisions shall be I n

corporate in the tender document.

56.1 Offer quoted by L-1 bidder within the

accuracy range (+/-) indicated in the

estimated cost prepared as per the approved

procedure shall be the normal limits for

acceptance of tenders. In case of 3 or m ore

acceptable bids, and the quoted of L-1 bidder

within the normal limits of acceptance, then

the work may be awarded to L-1 bidder

without resorting negotiations.

56.2 In case where the estimates have been

prepared on the basis of budgetary quotations

and the accuracy range of these estimates

cannot be determined and 3 or more

acceptable bids have been received against

such a tender, this will be processed for

finalization without resorting to negotiations.

56.3 A. i. There shall note any negotiations.

Negotiations if at all shall be an exception and

only in the case of proprietary items or in the

case of items with limited source of supply.

Negotiations shall be held with L-1 only.

Counter offers tantamount to negotiations and

should be treated at par with negotiation.

ii. Negotiations can be recommended in

exceptional circumstances only after due

application of mind and recoding valid, logical


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reasons justifying negotiations. In case of

inability to obtain the desired results by way of

reduction in rates and negotiations prove

infructuous, satisfactory explanations are

required to be recorded by the committee who

recommended the negotiations. The

committee shall be responsible for lack of

application of mind in case its negotiations

have only unnecessarily delayed the award of

work/contract.

B. The model time frame for according

such approval to completion of the entire

process of award of tenders should not exceed

one month from the date of submission of

recommendations. In case the file has to be

approved at the next higher level a maximum

of 15 days may be added for clearance at each

level. The overall time frame should be within

the validity period of tender/contract.

C. In case of L-1 backing out there should be

re-tendering as per existing instructions.

(Reference: CVC Office order no. 68/10/05

dated 25/10/2005).

56.4 If the negotiated offer of L-1 bidder is

still not within then normal limits of

acceptance, the offer may be examined on the

merit of the case and put up the

recommendations for the approval of CTAA.

56.5 Negotiations with L-1 bidder, if

required, will be carried out the approval of

Level – 1 officer for non EPC cases and Director

concerned in EPC level cases. Approval should

be obtained prior4 to call of L-1 bidder for

negotiations.

56.6 When the tendered amount of L-1

bidder is lowest than the accuracy range of the

estimated cost, the offer be examined w.r.t the

workability of rates as compared with the

estimated cost as per scope of work and

recommendations shall be submitted as per


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merit of the case for the approval of CTAA

56.7. In case, the contractor fails to execute

the contract satisfactorily in terms of the

contract provisions, the contactor shall be put

on holiday for a period of Two Years from the

scheduled date of completion of the work for

further business with ONGCL as per prevailing

ONGCL procedures, without any further

reference to Contractor”.

The petitioner’s appreciation of the provisions, extracted from

the Work Manual, 2007, has led to a conclusion that the accuracy rate to

be considered as plus/minus 10% and there cannot be any reason to ask

the petitioner and other tenderers to match down the bid which is 42.60%

below the schedule rate of the tender, as such the action of the ONGC is

highly illegal, arbitrary, un-authorized, unreasonable, unjust, whimsical and

capricious and warrants interference by Court. Basing on such contention

of the petitioner finally holds that the ONGC by fixing the L1 rate has

violated the procedural norms clearly and as such the process as espoused

by the ONGC has been infracted and such exercise of the ONGC is

colourable one for collateral purpose. Therefore, determination of the L1

be struck down and the ONGC be directed to award the said work at rate

which is within minus 10% of the schedule rate of the tender and after

perusal of the materials on record and after hearing the parties.

5. On the other hand the ONGC in both the cases has taken a

common position for defending their action on the face of the allegations

of infraction as well as for clarifying the process as carried on, on the basis

of the relevant materials and the authority created thereunder and without

any prejudicial aberration whatsoever stating that the clause regarding

MOU/ Joint Venture/Consortium clause was left out from NIT Dated.


18

08.11.2010. However, as soon as the same was pointed in the pre bid

conference by some of the intending bidders, the same was corrected and

the MOU/ Joint Venture/Consortium Clause was inserted. It is stated that

MOU/ Joint Venture/Consortium Clause is an integral part of the ONGC’s

tendering policy for both domestic and international tenders. This clause

allows bidders to pool resources and experiences required for a particular

job, for eligibility as well as for execution. This provision helps the

domestic bidders to participate in international tenders on the basis of a

suitable tie up with international firms having experience and technology.

In case of the domestic tenders, it helps the local vendors to participate in

the tenders with the support of experienced partners. Therefore, this

clause is in the interest of the local vendors and is important for

development local expertise and job experience. In the tender, the MOU/

Joint Venture/Consortium Clause had been initially dropped considering

that this may not be relevant for the tendered job, as some of the local

vendors were executing the similar work. But, some of the intending

bidders raised queries in the pre-bid conference against the omission of

the said provision and some intending bidders requested the ONGC to

include the said clause and accordingly, taking into consideration, all the

relevant facts and circumstances, the ONGC decided to retain this clause in

line with the tendering policy of the ONGC and the earlier tenders issued

for similar and other works. After scrutinizing the intending bidders and

having deliberated upon the ONGC authority decided to issue the said

corrigendum. The ONGC contends that it would be evident from a perusal

of Clause 6.1 of the Instructions to Bidders wherein it is provided that in

case any specific term and condition, other than a “standard terms and

conditions of tender” requires to be modified, then the same will be


19

considered for modification. Obviously, such modification of a tender

condition cannot be done in one day and the same would require the

consideration of the tender committee and the approval of the competent

authorities of the ONGC. Moreover, as per the various Manuals of the

ONGC and instructions issued from time to time, certain time period is also

fixed for replying to the queries raised in the pre-bid conference, which

are required to be recorded in the form of minutes and thereafter the

same is to be issued to the bidders. In the pre-bid conference held in

connection with the present tender, various queries were raised including

few objections regarding the exclusion of the MOU/ Joint

Venture/Consortium Clause and requests for inserting the same.

Considering the matter in its entirety the tender committee decided to

include the aforesaid MOU/ Joint Venture/Consortium Clause into the

tender terms and conditions. The ONGC has categorically denied any other

purpose as attributed by the petitioners but it has been done as a matter

of policy. As regards the Service Tax/VAT and CPF registration certificates

from bidders, it implies that the ONGC wants bidders to comply with the

tax requirements of the Government of India. In turn, the ONGC

reimburses the same to bidders, as the case may be. As regards the issue

of the service tax, it is stated that the ONGC has been continuously

changing its methodology to deal with the service tax for better clarity and

transparency in tenders. Earlier, the ONGC was reimbursing the service tax

as applicability of service tax on various services was not clear and it was

difficult for the bidders to quote service tax. Now, there is sufficient clarity

on the applicability of service tax, the ONGC has adopted a uniform policy

of treating service tax as any other tax like sales tax etc. The bidder has to

quote for the service tax in their bid and get paid for the service tax along


20

with the payment for the services rendered. In this tender also bidders

have been asked to quote their prices inclusive of service tax and they

have been asked to indicate the service tax component i.e. the rate of

service tax, separately for the purpose of adjustment of rate in case there

is any increase/decrease in the service tax rate in the future as per change

in law. While quoting the rate, the bidder is required to quote the rate

inclusive of service tax and also separately indicate the rate of tax. In case

the rate of service tax is increased then the ONGC would make the

corresponding deduction. However, the duty and responsibility of payment

of the service tax would lie with the contractor not with the ONGC The

payment, therefore, as made to the contractor is inclusive of the service

tax. The ONGC in their affidavit-in-opposition categorically denied that the

authorities of the ONGC never replied to the queries of the petitioners

regarding reimbursement of the service tax as alleged.

The ONGC had denied of any policy decision, more particularly of

the tender committee not to include the MOU/ Joint Venture/Consortium

Clause and that the said decision was taken in respect of all the contracts

of the ONGC. The contract for hiring of scrapping winch chassis as

mentioned by the petitioner in the Bordoloi is a contract for hiring of a

particular vehicle and for that the competent authorities at the ONGC after

considering the nature of services available in the market and past

experience etc. was of the view that such a condition would be redundant

in the said tender for the fact that in case of hiring of a vehicle, a joint

venture/consortium or a party having a MOU with another party may not

be necessary. As stated earlier , it has been stated that the MOU/ Joint

Venture/Consortium Clause is an integral part of the NITs of the ONGC and

is included in almost all the ONGC tenders across all units in the country.


21

The said clause is some time dropped considering the relevance in the

tender. It is stated that MOU/ Joint Venture/Consortium Clause is very

much essential for the purpose of supporting the local entrepreneurs who

can participate in tender process with the help of a party who has the

requisite experience and technical know-how. Therefore, its omission

would have the effect of limiting the number of eligible bidders and its

inclusion would give a much wider range of participation. The view of the

ONGC inclusion of the MOU/ Joint Venture/Consortium Clause proved to be

enterprising because of the fact that some of the local vendors after

purchasing the bid documents, showed their interest in participating in the

tender process and requested that the MOU/ Joint Venture/Consortium

Clause should be included in the tender also, in the line with the earlier

tenders on the same work. The corrigendum, according to the ONGC, is a

restoration of the policy decision of the ONGC rather than being in violation

of its policy. It is denied that the corrigendum dated 2.5.2011 is at all

arbitrary, discriminatory, illegal, unauthorized, irregular, uncalled for,

unjust, unreasonable and without jurisdiction and liable to be set aside and

quashed as alleged.

6. It has been denied that the standard terms and conditions of

the tender are the general conditions of the tender and the special

conditions of the contract (SCC). By the corrigendum dated 2.5.2011 what

has been amended is the instruction to the bidders(ITB), which is

admittedly is not a part of the standard terms and conditions of the tender.

With the amendment to the Instructions to Bidders a corresponding

amendment in the Bid Evaluation Criteria has to be in order that the two

are in conformity to each other. Therefore, it would be evident that the Bid


22

Evaluation Criteria is not a standard terms and conditions of the tender

and as such varies from tender to tender. The entire tender consist of five

parts namely (i) the instruction to Bidders, (ii) the General Conditions of

Contract, (iii) the Special Conditions of Contract, (iv) Bid Evaluation Criteria

and (v) price bid proforma. If the interpretation sought to be given by the

petitioners to the term “standard terms and conditions of the tender” is

accepted , then Clause 6.1 of the instruction to bidder would be redundant

in as much as, in such an event if any objection is raised on behalf of the

bidders regarding any condition in the contract, the same would be

meaningless because it is held that the Bid Evaluation Criteria is a part of

the standard terms and conditions of the tender then nothing can be

amended or changed even in case a bidder has some query or objection.

The allegation that the changes in the Bid Evaluation Criteria have been

brought only to accommodate some favoured contractors without any

basis and absolutely incorrect.

7. As regards the L1 or as to the apprehension by the

petitioners about the abnormal rates being collected is totally unfounded

and is categorically denied by the ONGC. The ONGC has categorically

stated that in the earlier tender for similar work, floated in the year 2008,

viz. Tender No. NZR/MM/C & M/Pipeline/54/2007-08/R16AC07005, the

MOU/ Joint Venture/Consortium Clause was very much there. The ONGC

has also denied that the MOU/ Joint Venture/Consortium Clause is not a

part of any policy of the ONGC. It has been asserted that exclusion of the

said clause is by way of exception in consideration of the redundancy,

special situation specific to that tender and in the given circumstances of

the particular tender. The ONGC has stated that the tender conditions


23

were changed during the course of pre-bid conference and in line with the

queries raised by the intending bidders including the petitioners. The said

changes have been incorporated in the tender prior to the submission of

the bids by any of the bidders and, therefore, no prejudice has been

caused to the petitioners by issuance of the corrigendum dated

02.05.2011. Further the technical specification has not been changed in

any manner so as to influence the decision of an intending bidder to

change the price quoted. It is reiterated that through the corrigendum the

ONGC has resorted an eligibility clause, which is present in almost all

tenders floated by the ONGC and which had been dropped from the

present tender under the facts and circumstances as stated and has been

included for purpose of bringing the present tender in line with the uniform

tendering policy of the ONGC. They had stated that it is not a case for that

purpose where the petitioners have been prejudicially affected so far the

technical bids or the price bid is concerned. The ONGC has categorically

stated that none of the bidders in the present tender has submitted the bid

till the query raised in the pre-bid meeting held on 06.12.2010 has been

answered by the ONGC. All bids, including the bids of the petitioners were

submitted after issuance of the corrigendum dated 02.05.2011. Therefore,

no prejudice, whatsoever has been suffered by the petitioners by the

issuance of the corrigendum dated 02.05.2011. Basing on such assertion it

is pleaded that the ONGC be permitted to go ahead and to complete the

tender process in accordance with law.

8. In the Zeeneel an additional issue of accepting the L1 has

been dwelled upon by the ONGC stating that the petitioner was asked to

match with the rate of the L1 bidder as per tender conditions viz. Clause


24

B3.11 of the Bid Evaluation Criteria (BEC) wherein it is specifically provided

that bidders would have to quote overall (+) or (-) % in percentage in

comparison to the rates of the ONGC, as provided in the Schedule of

Rates and after selection of the L1 bidder, all other bidders will be asked to

match the rate offered by the L1 bidder. Thereafter the entire work would

be divided amongst 21 bidders, 10% of the work would be allotted to the

L1 bidders and the balance 90% work would be allotted to the 20 bidders

@ 4.5% each and in case there are less 20 bidders, who agree to match

the L1 rate, then the 90% work would be divided equally amongst the

successful bidders. The petitioner not having agreed to match the L1 rate

does not have any locus to file the present writ petition and say that the

L1 rate is excessively unreasonable. Moreover, as per the tender conditions

and standard procedure, the L1 bid cannot be ignored. It has been further

stated that the tender in question was an open indigenous tender and the

bidders were free to quote any rates, which according to bidder are

workable. Moreover, from the statements made in paragraph 13 of the

Zeeneel’s petition it would be evident that 20 out of 30 bidders i.e. 67% of

the bidders including the petitioners in the Borduloi who are the existing

contractors doing/executing similar works have quoted rates in the range

of (-)20% to (-)42.6% and 17 bidders are agreed to work at the L1 price

of (-)42.6%. Therefore, so many bidders have agreed to work at such rate

and have voluntarily accepted the lowest rate, the said rate truly

represents the market rates and the statement of the petitioner that the

rates are not workable is incorrect and accordingly, denied by the ONGC.

According to them that (-) 42.6% as quoted by the L1 is workable and

reasonable rate. The ONGC has discarded straightway the assertion of the

petitioner in the Zeeneel. According to the ONGC rates of Mehsana Asset


25

cannot be compared with the rates of Assam Asset. Having said that rates

of any tender are obtained through the open competition and it is for the

bidders to quote the rates. As per tender conditions, the L1 rates have to

be accepted and if some bidders are not agreeable to work at a particular

rate, it is not open for the ONGC to say that the rates are on the lower

side. M/s. Lakwa Steel Construction, the respondent No. 6 in the Zeeneel

has on their volition quoted rates of (-) 42.6% and 17 other bidders have

agreed to match the said rate. Hence the rate quoted by the bidders

cannot be said to be unworkable as projected by the Zeeneel, the ONGC

strongly denied that without making any analysis of the rate as quoted by

the L1 has been accepted or it suffers from non application of mind as

alleged. For elucidation further, the ONGC asserted that the Work Manual,

2007 is not applicable to the present tender. By the Circular dated

30.06.2008 issued by the competent authority of the ONGC, it has been

stated that the issue as to whether Works Manual or Material Management

(MM) Manual should be followed in tenders processed by the Materials

Management (MM) Department it has been clarified that for the tenders

which are processed by the Material Management (MM) Department of the

ONGC, only the Material Management Manual should be followed. Further

stated that, even assuming for the argument’s sake but not admitting that

the Works Manual shall apply in the present tender then the Clause 5.4 of

the Works Manual, without referring to Clause Nos. 5.1 to 5.3 would

nothing but an attempt to mislead this Court inasmuch as, the works as

mentioned above appearing in the clause 5.4 indicates that the said clause

is applicable in case of the Schedule of Quantities (SOQ) and Schedule of

Rates (SOR) prepared under Clause 5.1 to 5.3 which are only for civil and

electrical works. The clause which specifies the preparation of the cost


26

estimates of pipelines etc. is the clause 5.6 and there is no provision/scope

of any accuracy of (+)/(-) 10% while preparing such estimates. Moreover,

the said clause is only with regard to the accuracy of the ONGC while

preparing the SOQ and SOR for Civil and electrical work. As such Works

Manual is not applicable in the tender process under reference. As the

ONGC asserted the Material Management Manual (MMM) were only apply

so far the Clause 56.0 to 56.6 of the Works Manual have nothing to do

with the present tendering process.

9. Mr. N. Dutta, learned Senior counsel appearing for the

Bordoloi submitted that this tender process has lost its sanctity for

interference by the tendering authority by way of changing the standard

specifications of the tender. He submits that as per the Work Manual,

2007, the work manual shall be applicable for all type of works or items

rate and LSTK basis covering Civil & Electrical, E & M Works,

Instrumentation and E and T Works, Offshore Works, Dry Docking Works,

O & M Works, Onshore Works, Rigs and Equipments Repair Works as

detailed under para 2.0 of the Works Manual, 2007. As sequel to the

Clause 1.1 of the Works Manual, Mr. Dutta, learned Senior counsel referred

to the definition of the ‘Works’ as appearing in Clause 2.1 where the

following has been provided:

“Works” shall mean any activity/group of

activities/turnkey or otherwise such as

construction works inclusive of civil,

mechanical, electrical, C&M, operation,

pipelines and oil field installations for onshore

& offshore, repair & maintenance, materials

and services, related to these

installations/works undertaken to achieve the

desired objectives of ONGC”


27

Some exceptions Mr. Dutta, senior counsel pointed out, are

also catalogued but those do not cover the present work. Thereafter, he

pointed out that apart from the works as listed in the work manual all

other activities/jobs shall be got executed through the MM Manual. Since

the work is of laying of the pipelines and oil field installation, the work

must be covered by the Work Manual 2007 and has to be carried out as

per guidelines of the Work Manual, 2007. He continued to submit that the

detailed guidelines are available in the Work Manual, 2007. Where it has

been also stated that the accuracy range of the estimate prepared on the

schedule of the quantities and the schedule of rates as mentioned shall be

considered as (+)/(-) 10% on the schedule of rates. It has been provided

in Clause 5.3 that the said rate has to be derived. Mr. N. Dutta, learned

Senior counsel referring to the Clause 24.2 of the said manual submitted

that the major qualifying criteria in respect of the two bid system and the

essential qualifying requirement in respect of the single bid system must

be specified clearly in the NIT and be published in the ONGC tender

website so that prospective bidders are aware of this requirement at the

time of buying the bidding documents. As sequel to that he further

submitted that in Clause 55.4 it has been categorically stated:

“However, if , as a sequel to the pre-bid

conference, modifications are required in the

BEC/ specifications/tender conditions

(excluding commercial conditions standardized

by PMC and excluding the major qualifying

criteria), prior approval of the CTAA would have

to be obtained by the work centre by providing

detailed justification for agreeing to such

modifications.


28

Mr. Dutta, learned senior counsel further submitted that by

the corrigendum dated 02.05.2011, the respondent, the ONGC the

standard terms of the contract has been changed. The Annexure-1

appended to the corrigendum dated 02.05.2011 clearly demonstrates that

how the changes have occurred. He submitted that these are the pointers

of the extreme arbitrariness in the administrative action.

10. Mr. D. Das, learned senior counsel appearing for the Zeeneel

has also released the similar salvo and stated that entire tender process

has been vitiated for arbitrary action of the ONGC. But his focus was on

acceptance of the L1 bidder. Referring to Clause 56.1 of the Work Manual,

2007. Mr. Das, learned senior counsel strenuously argued that the entire

exercise of selecting the L1 has been carried out in violation of the said

provision and so has been done so that the entire exercise culminate in

the retendering. Gainfully Clause 56.1 is quoted:

“Offer quoted by L-1 bidder within the

accuracy range (+/-) indicated in the

estimated cost prepared as per the approved

procedure shall be the normal limits for

acceptance of tender. In case of 3 or m ore

acceptable bids, and the quote of L-1 bidder

wit h in the normal limits of acceptance, then

the work may be awarded to L-1 bidder

without resorting to negotiations”

He further submitted on the basis of Clause No. 5.3 that the

workable rate is surveyed by the Service/Project execution group to collect

costs/budgetary quotations as per the existing practices as duly approved

by the level-II officers. The prevailing market rates is surveyed by a

Committee of the officers comprising of the representatives of the level not

below E-1 from the attached finance and Service/Project execution group.


29

The committee for collection of market rates is constituted by not lower

than the Level-II officers in consultation with the local finance. However,

the committee should ensure that the budgetary quotations are collected

from the reputed parties. The basic market rates and the analysis of rates

of the individual items will be approved by not lower than the Level-II

officers.

Mr. Das, on the basis of the said provision submitted that the

L1 has quoted a rate below 42.60 and despite that he has been selected as

the L1 without any question. From the affidavit-in-opposition, it is apparent

that the ONGC has accepted that rate. He further submitted that this is a

fit case where this Court should interfere the arbitrary action of the

respondent, the ONGC.

11. On the other hand, Mr. K. N. Choudhury, learned senior

counsel appearing for the ONGC at the out set stated that the writ

petitions are not maintainable for the reason that all the writ petitioners

after participating in the tenders in terms of the corrigendum dated 02-05-

2011 have approached this Court, they are estopped by their conduct to

question the action. In support of his contention he referred a decision of

the Apex Court in Tafcon Projects (I)(P) Ltd. Vrs. Union of India

and others, reported in (2004) 13 SCC 788 where the Apex Court held:

“we need express no view on this matter

because in any event Respondent 3’s offer of

an upfront payment of Rs. 2.50 lakhs per

year, which was much lower than that offered

by the appellant M/s. Tafcon. Therefore,

whichever meaning is accepted, untimately

M/s. Tafcon’s offer was much better than that

of respondent 3 and its selection cannot be

faulted. Besides Respondent 3 had bid


30

pursuant to the tender notice and participated

in the proceedings before the Selection

Committee. It cannot now take advantage of

any alleged vagueness in the tender notice.”

Mr. K. N. Choudhury, learned senior counsel further

submitted that by a Circular under No. MAT/PMC/WM/1/08 dated 30-06-

2008 the decision of the corporate material management has been

communicated. The said circular contends inter alia:

“The issue regarding whether to follow the

Works Manual of MM Manual in ternders

which are being processed b y the MM Deptt.

has caused considerable confusion in the

Work Centres.

In fact only MM Manual should be followed for

tenders which are being processed by the MM

Deptt.

With a view to avoid confusion at Work Centre

level, it is suggested that following clause

should be incorporated in the Works Manual,

2007.”

For tenders which are to be processed by the

MM Deptt as per BDP. Only MM Manual is to

be followed.”

From the tender document it would be found that the tender

has been floated by the GM Head (MM) Assam Asset, Material

Management Department, as such the tending process is remotely related

with the Work Manual, 2007, it has been guided by the Material

Management Mannual. As such there is no relevance of the Work Manual,

2007. In addition thereto, Mr. Choudhury, learned senior counsel

submitted that there had been no violation of the appropriate manual and

to prove his point, Mr. Choudhury referring to the corrigendum dated 02-

05-2011 submitted that the corrigendum itself would prove that the


31

standard specification have not been altered what has been altered is the

instruction of the bidders and some consequential changes in the terms

and conditions of the tenders have taken place to adjust the said change.

Therefore, the contention of the petitioners is absolutely without

substance. As regars, selection of the L1, Mr. K. N. Choudhury, learned

senior counsel submitted that the Clause 56.1 is not the absolute yardstick

but there can be variation in view of Clause 56.6 of the Work Manual 2007

which stipulates that when the tender amount of the L1 is lower than

accuracy range of the estimated cost, the offer be examined w.r.t the

workable rates as compared with the estimated cost as per scope of the

work and the recommendations are required to be submitted as per merit

of the case for the approval of CTAA. In the case in hand the workability

has been scrutinized and in the affidavit-in-opposition the reasons have

been assigned by the ONGC and as such, there can be any question of any

breach of the espoused policy of the tendering by the ONGC or in the

selection of the L1. The ONGC has produced the relevant records before

the Court for examination.

12. On consideration of the rival contentions and on scrutiny of

the records as available before this Court, this Court finds that the

contention of the petitioners that there had been breach of the Works

Manual, 2007 cannot be accepted in view of the circular dated 30-06-2008

which categorically stipulates that for tenders which are processed by the

MM Department as per the DDP, the MM Manual is to be followed. In the

writ petitions there is no whisper of the breach of any provision of the MM

Manual. Moreover, no breach also as well could be established by the

petitioner of the provisions as incorporated in the Work Manual, 2007. As


32

regards selection of the L1, the explanation as given by the ONGC on the

workable rate does not appear absurd and there rationale is quite

consistent to Clause 56.6 of the Work Manual, 2007. Therefore, on the

yardstick of the Work Manual, 2007 also the ONGC is not prohibited from

accepting the rate far below +/- 10% of the estimated rate. Moreover, this

Court shall not extend its authority for interfering the exercise of assessing

the workable rate of a commercial bid. This should be left with the domain

of the executives or the authorities. Unless it has been demonstrated the

entire decision is tainted by the unreasonableness, no interference can be

expected of this Court. Moreover, this Court finds that all the writ

petitioners participated in the bid after the corrigendum dated 02-05-2011

was issued and they quoted their rate accordingly. Thus, they are

estopped by their conduct to question the validity of the change that has

been implanted by way of corrigendum dated 02-05-2011 in the original

NIT. Moreover, for such corrigendum, no prejudice has been caused to the

writ petitioners and as such even there is no reason to test the action of

the ONGC-respondent in the touchstone of proportionality.

13. As corollary to these findings, both the writ petitions are

dismissed. However, there shall be no costs in the fact and circumstances

of the case.

The interim order as passed earlier stands vacated. The

ONGC would be at liberty to finalize the tender process and to take

appropriate decision on relevant consideration.

JUDGE

d.de.

in the gauhati high courtghconline.nic.in/judgment/wpc27182011.pdfpartner sri r.p. kakoti, son of...

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