IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 14121 of 2009(I) -------------------------- PETITIONER(S): --------------- P.K.KAMMED KUTTY, P.K.K.CONSTRUCTIONS, KEEZHUPARAMBA P.O., AREEKKODE, MALAPPURAM. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): --------------- 1. SUPERINTENDENTING ENGINEER, PWD ROADS AND BRIDGES, NORTH CIRCLE, KOZHIKODE. 2. GOVERNMENT OF KERALA, REP.BY THE SECRETARY TO PUBLIC WORKS, THIRUVANANTHAPURAM. 3. URALUNGAL LABOUR CONTRACT CO-OP.SOCIETY, MADAPPALLY COLLEGE.P.O., VADAKARA. ADV. SRI.M.SASINDRAN FOR R3 GP SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- W.P.(C).14121/2009 -------------------- Dated this the 10th day of June, 2009 JUDGMENT 1st respondent invited tenders for construction of Bridge at Theyyathumkadavu across Iruvanhipuzha in Kozhikode District at a PAC of Rs.5,03,78,181/-. Petitioner, an A Class Government Contractor quoted the work below 5.1% of the estimated cost. 3rd respondent , a Labour Contract Co-operative Society quoted 9% above the PAC. Nevertheless the 3rd respondent has been preferred and hence the writ petition. 2. Reference is made to Ext.P2 Government Order dated 13.11.1997 providing for a price preference in favour of a Labour Contract Society. Clause 8(a), (b), (i) and (ii) of the same read as follows:- 8(a).There will be regular tender for the works and the societies should present W.P.(C).14121/2009 2 tenders in the manner prescribed by the work awarding authority. Where a society quotes lowest rates, it will be entitled to the work at the quoted rate. (b).In cases where a private contractor has quoted the lowest rate, the Labour Contract Co-operative Society which has quoted for the work will be given preference in awarding contracts as follows. (i).When the lowest tender is from a private contractor, the Labour Contract Co-operative Society will be awarded the work at 10% above the lowest tender, if the Society is willing to do the work. The work Awarding Authority should ascertain the willingness of the Labour Contract Society in writing. (ii).Where the quotation of a Labour Contract Co-operative Society is below the rate quoted by a private contractor, the work will be awarded to the Labour Contract Co-operative Society at the rate quoted by it. W.P.(C).14121/2009 3 3. Based on the said clause, willingness of the 3rd respondent to do the work at the rate of 10% above the lowest quoted rate was ascertained and the 3rd respondent expressed its willingness to do so. Learned counsel for the petitioner Mr.T.G.Rajendran submits that assuming that Ext.P2 Government Order provides for price preference clause, once the Society expresses its willingness to do work at 10% above the lowest rate, then, employer should give an opportunity to the lowest tenderer to revise the rates already quoted and based on such revised rates, Society's willingness to do the work at 10% above the revised rate will have to be ascertained again. 4. Learned counsel for the 3rd respondent, Mr.Sasindran, and learned Government Pleader point out that if this procedure has read into clause 8 of Ext.P2, there will be a never ending process. I am inclined to accept the submission of the counsel for the 3rd respondent in this regard. Clause 8 lays W.P.(C).14121/2009 4 down a procedure in the matter of affording a price preference in favour of Labour Contract Societies. Therefore, the persons who are called upon to respond to the notification are put on notice regarding the possibility of a Labour Contract Society tendering for the work and the possibility of an order in the nature of Ext.P2 being made applicable to the work in question. In such circumstances, private contractors should have kept in mind the scenario and quoted accordingly. I am of the view that a further chance to the lowest tenderer, private contractor, to again revise the rates is not spelt out by or otherwise contemplated in Ext.P2 Government Order. In that view of the matter, I am not in a position to find any fault with the procedure adopted by the tendering authority. 5. Mr.Rajendran submits that clause 6 of Ext.P2 provides for the limits upto which a particular item of work may be entrusted to a Society which otherwise claims the benefit of the price preference W.P.(C).14121/2009 5 clause under Ext.P2. Same is only 50 Lakhs, at any given point of time. It is pointed out that the PAC is more than Rs.5 Crores. Therefore, Ext.P2 Government Order should not have been invoked in favour of the 3rd respondent in the present case, it is contended. 6. Ext.R3(a) Government Order dated 2.8.2008 provides as follows:- In the circumstances, explained by the Registrar of Co-operative Societies in her letter read as second paper, Government are pleased to restore the priority benefits provided in the order first cited to the Uralungal Labour Contract Co-operative Society and to permit the society to take up and execute any work without the restriction of financial limits.” 7. The effect of Ext.R3(a) is to relax the financial limits otherwise provided under Ext.P2 Government W.P.(C).14121/2009 6 Order, in favour of the 3rd respondent, thereby enabling it to apply for a work without any financial limits as such. Ext.R3(a) is prior to the tender involved in the instant case. Therefore, 3rd respondent is entitled to proceed on the basis of Ext.R3(a) as well. I do not find any infirmity in the action taken by the 1st respondent. Writ petition is bereft of merit and hence, the same is dismissed. V.GIRI, Judge mrcs