1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.03.2011 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.1584 of 2011 and M.P.(MD)No.1 of 2011 K.Ramakrishnan, Engineering Contractor : Petitioner Vs. 1.The Pudukkottai Municipality represented by its Commissioner, Pudukkottai. 2.M.Murugesan, Engineering Contractor : Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, forbearing the first respondent from considering the tender submitted by the second respondent in respect of package No.2 insofar as Pudukkottai Municipality is concerned set out in the tender notification bearing No.br.k.bjh.n/156/X.g[s;sp/2011, dated 20.01.2011 issued by the first respondent and published in Dinakaran issue dated 20.01.2011. For Petitioner : Mr.G.R.Swaminathan For Respondent No.1 : Mr.Pala Ramasamy For Respondent No.2 : Mr.D.Sadiq Raja ORDER The petitioner seeks issuance of a Writ of Mandamus, forbearing the first respondent from considering the tender submitted by the second respondent, pursuant to the notification dated 20.01.2011 on the file of the Pudukkottai Municipality. BACKGROUND FACTS: 2. The petitioner is an Engineering Contractor. The first respondent issued a notification in their website on 21 January, 2011 inviting tenders for the purpose of awarding the work regarding improvement and providing black tapping using paver machine in respect of certain streets and roads. The last date and time for receipt of tenders was 03.00 p.m. on 31 January 2011. The notification as well as tender schedule were published in the website. The intending tenderers were expected to download the tender schedule from the website. In the meantime, the first respondent issued a corrigendum on 25.01.2011 making certain substantial changes in the tender schedule in respect of the package Nos.1,2 and 3. Therefore, the petitioner once again downloaded the revised tender schedule from the website and after complying with all the necessary formalities, the tender was submitted before the first respondent in respect of package No.2. https://hcservices.ecourts.gov.in/hcservices/ 2 3. There were nine persons, who took part in the tender process, which includes the second respondent. When the price bids were opened, it was found that the second respondent had filled up the earlier tender schedule, which had been scrapped. The second respondent did not submit his tender by filling up the proper schedule. The Municipal officials wanted to favour the second respondent. Therefore, disregarding the objection submitted by the petitioner and other tenderers, the tender submitted by the second respondent was received and he was ranked as L-1 and the petitioner was ranked as L-2. Since the tender submitted by the second respondent was not rejected, the petitioner filed the Writ Petition to restrain the first respondent from awarding the contract. 4. The first respondent has filed a counter-affidavit in answer to the contentions raised in the affidavit filed in support of the Writ Petition. According to the first respondent, the tender inviting authority considers only the rate quoted per unit. All the tenderers including the second respondent submitted their tender indicating the unit price. It was only after the execution of contract, actual measurements would be taken and the units would be calculated and based on which, payment would be made to the contractor. According to the first respondent, the quantity found in column 3 under the head Schedule of work are tentative and it would vary according to the field condition. Accordingly, the first respondent justified the consideration of the bid submitted by the second respondent. SUBMISSIONS: 5. The learned counsel for the petitioner vehemently contended that the bid submitted by the second respondent should have been rejected primarily on the ground that he has not used the revised format published by the first respondent. The learned counsel further contended that there were material variations between the initial tender and the revised tender. As per the original tender notification, the time for completion of the work was fixed at six months. However, it was reduced to three months later and as such, the bid submitted by the second respondent indicating the period as six months should have been rejected. According to the learned counsel, the petitioner has quoted the rate on the basis of the revised notification fixing the period at three months. However, the second respondent quoted the rate taking note of the period as six months. Therefore, there was basic difference in the rates. In short, it was the contention of the learned counsel that there was a requirement that the bids should be submitted only as per the revised notification and the failure on the part of the bidder to submit the tender in the revised format should result in rejection of the tender. 6. The learned Standing Counsel for the first respondent contended that there was no basic difference in the tender schedule on account of the corrigendum issued by the Municipality. According to the learned counsel, the parties were expected to indicate the unit price. Therefore, the revision of quantity by issuing a corrigendum does not make any difference. The actual quantity would be calculated only after confirming the bid and in fact, the quantity would vary according to the field condition. https://hcservices.ecourts.gov.in/hcservices/ 3 THE BASIC ISSUE: 7. The only issue, which arises for consideration, is as to whether the first respondent was justified in accepting the tender submitted by the second respondent without adhering to the corrigendum issued on 25.01.2011. DISCUSSION: 8. The first respondent originally issued a tender notification on 21 January 2011. The work in question pertains to package No.2 As per stipulation, the work should be completed within a period of six months. Subsequently, the first respondent issued a corrigendum on 25 January 2011. 9. The moot question is as to whether on account of the corrigendum issued by the first respondent, the bid submitted in the format prescribed originally would become automatically invalid. 10. Though the first respondent has issued the corrigendum on 25 January 2011, they have not stated that the bid should be submitted in a revised format. By issuing the corrigendum, the first respondent wanted the tenderers to correct and read some of the items, instead of all the items originally published in the tender notification dated 21 January 2011. Therefore, the format remained the same. The tenderers were required to correct some of the entries. The second respondent submitted his tender without correcting the items as indicated in the corrigendum. 11. The petitioner would be justified in his contention, in case there are variations in the matter of unit price. I have compared the bids submitted by the petitioner and the second respondent. Both the parties indicated their rate only in units. In fact, the tender as published originally and as corrected by the corrigendum wanted the tenderers to indicate only the unit price. It is true that the total number of quantity underwent certain changes, as indicated in the corrigendum dated 25 January 2011. Except the total quantity and the period, there were no material changes. The change in the quantity has no relevance. The tenderers were required to indicate the unit price. Therefore, the estimated rate has to be calculated by taking note of the quantity and the unit price. A comparison of the bids submitted by the petitioner and the second respondent clearly gives an indication that the parties have filled up only the unit price. The quantities were printed in the notification itself. 12. The first respondent, in their counter-affidavit, very clearly stated that only after the execution of contract, actual measurements would be taken and the units would be calculated and based on which, payment would be made to the contractor. The quantity can only be a tentative one. The work in question is a road work. Therefore, the Municipality has to measure the road and the quantity has to be calculated in accordance with the field condition. In fact, schedule 'A' to the tender clearly provides that quantities given are only tentative. 13. The other contention pertains to the period. Originally, it was stipulated that the work should be completed within a period of six months. Subsequently, it was changed as three months. The bid document https://hcservices.ecourts.gov.in/hcservices/ 4 does not contain a column regarding the period. The petitioner has no case that the Municipality has permitted the second respondent to complete the work within a period of six months. The second respondent has agreed to complete the work within a period of three months. In fact, the condition regarding the total period of work is binding not only on the petitioner but also on all other tenderers. The letter submitted by the second respondent clearly gives an indication that he has agreed to complete the work within a period of three months. 14. So long as the first respondent has no case that they have published a revised tender format along with the corrigendum dated 25.01.2011, requiring the tenderers to submit their bids only in the revised tender format, the petitioner cannot be heard to say that the bid submitted by the second respondent based on the tender notification dated 21.01.2011 has to be rejected. The corrigendum only wanted the tenderers to make suitable corrections in the appropriate places. Nowhere the first respondent has stated that the tenderers have to change the format and only in the revised format, they should submit their bids. It is a matter of record that the tender document remained the same. It was only certain corrections which were made by way of corrigendum. The failure on the part of the second respondent to carry out the corrections in the tender document will not result in automatic rejection of the tender. 15. The change made as per the corrigendum was pertaining to measurement. It has nothing to do with the unit. The price was intended to be shown only in units. Both the petitioner and the second respondent were aware that the bid document should contain only the unit price. Accordingly, they have given the unit price. The price quoted by the petitioner was more than the price quoted by the second respondent. Therefore, the Municipality has rightly adjudged the second respondent as L-1 and the petitioner was shown as L-2. In fact, the petitioner has not challenged the selection of the second respondent as the successful bidder. CONCLUSION: 16. Therefore, on a careful consideration of the entire factual matrix, I am of the view that the first respondent was fully justified in entertaining the bid submitted by the second respondent. 17. In the upshot, I dismiss the Writ Petition. Consequently, the connected miscellaneous petition is also dismissed. No costs. Sd/- Deputy Registrar (LA) /True copy/ Assistant Registrar To The Commissioner, The Pudukkottai Municipality,Pudukkottai. +2CC TO M/S.PALA RAMASAMY, ADVOCATE SR.10821 Sml SR : 15.03.2011 : 4p/4c Order made in W.P.(MD)No.1584 of 2011 and M.P.No.1 of 2011 01.03.2011 https://hcservices.ecourts.gov.in/hcservices/