Heard both sides.
2. The petitioner is one and the same person in both the Writ Petitions. The petitioner is the sole Proprietor of M/s.Om Spun Pipes and Concrete Works, PRR Colony, Kovvur, Nellore District. The petitioner has come forward to file the first Writ Petition seeking for a direction to the respondents 1 and 2 to consider the tender submitted by him for contracting the work of providing Limited Height subway in lieu of unmanned Level Crosses at Level Cross Nos.21, 29, 84, 87 and 95 in Chennai -Gudur Section of the Railways. The contract has to be completed within 10 months.
3. It is the case of the petitioner that he has made the lowest offer, namely his offer was Rs.6,30,00,000/-. Whereas the third respondent had offered for Rs.6,80,00,000/-. But, He was not considered for grant of contract.
4. When the matter came up on 27.7.2009, this Court directed the petitioner to serve the Standing Counsel for the Railways.
5. In the mean while, by an order dated 29.7.2009, the official respondents have offered the contract to the 4th respondent i.e., Eagle Earth Movers. In the offer, it was stated that there was a negotiation on the tender and the 4th respondent had offered to perform the work by Rs.5,90,44,105/-. It is this offer of contract to the 4th respondent, which has become the subject matter of challenge in the second Writ Petition in W.P.No.16806 of 2009.
6. When the matter came up on 19.8.2009, this Court ordered Notice to the Railways. It is also stated that any action taken by the respondents pursuant to the tender in question shall be subject to the decision of the Writ Petition.
7. The official respondents have come forward to file a counter affidavit dated 12.11.2009. The petitioner has filed a reply affidavit dated 7.12.2009.
8. Mr.V.Ayyadurai, learned counsel for the petitioner contended that had his client put on notice for private negotiation, there would have been chances for him to reduce the amounts than quoted by the 4th respondent. The Railways have unfairly acted. He also stated that even in tender matters, there must be fairness or transparency. The action taken by the respondents cannot be accepted.
9. On behalf of the Railways, in the counter affidavit, two contentions were raised by them. The first was that a perusal of the experience certificate produced by the petitioner and the 4th respondent clearly showed that the 4th respondent is more experienced contractor. One such Certificate produced by the petitioner was not a direct contract awarded to him, but only as a Power of Attorney Holder for one Raveender Reddy. Therefore, the Railways were satisfied with the experience certificates produced by the 4th respondent. With reference to the award of contract through private negotiation, in paragraphs 24 and 25, it was averred as follows:
"24. It is further submitted that the tender the fourth respondent originally quoted tender value of Rs.6,80,93,655/- thereby a sum of Rs.90,49,550/- was saved due to the above negotiations duly considering the suomotu reduction for items 1 and 2 of Sch.C. Further, while comparing the tender provision of Rs.6,14,96,012/- the negotiated amount is lesser by Rs.24,51,907/- . Further, the rate reasonability for each item has been discussed in detail. Considering all the above factors the tender committee opined that the negotiated total amount of Rs.5,90,44,105 value after suo motu reduction by M/s.Eagle Earth Movers was found reasonable and acceptable and the Tender Committee recommended to accept the offer of the lowest eligible tenderer M/s.Eagle Earth Movers at a total amount of Rs.5,90,44,105/-.
25. The Divisional Railway Manager in terms of Sl.No.10B(1) Schedule of powers on works contract was competent to reject/accept/modify the recommendation of the tender committee and the D.R.M exercising the power accepted the recommendations made by the Tender Committee and accordingly the impugned letter was issued in favour of the 4th respondent."
10. Considering the fact that the work involved has a time constraint and also the Railways have also not acted unfairly in awarding contract to a lowest tenderer after negotiation, the contention raised by the petitioner cannot be gone into in these Writ Petitions. Further, the explanation offered by the respondents cannot be said to be either unreasonable or arbitrary.
11. In the light of the above, both the Writ Petitions stand dismissed. However, there will be no order as to costs. The connected Miscellaneous Petitions stand closed.
08.12.2009 Index:Yes Internet:Yes ajr To 1 THE GENERAL MANAGER/WORKS SOUTHERN RAILWAYS MADRAS DIVISION CHENNAI 3.