JUDGMENT
A.G. Qureshi, J.
1. This order shall govern the disposal of M.P. No. 1413 of 1988 and M.P. 847 of 1989, as the points of facts and law to be decided in these petitions are identical. Petition No. 1413 of 88 has been filed by Precision Technofab & Engineering Company (hereinafter called ‘Precision’) and Petition No. 847 of 1989 has been filed by Om Metal and Minerals Pvt. Ltd. (hereinafter called ‘Om Metal’).
2. The facts leading to these petitions in short are that the Government of M.P. in the Public Health Department resolved to embark upon the Gambhir Water Supply Project, Ujjain and consequently a project was prepared by the Public Health Department of the Government of M.P. After the preparation of the project, the Executive Engineer, Project Division, Ujjain published a notice inviting tenders dated 1-6-87. The tender notice was published in important newspapers of India calling upon the registered contractors of Category S-V and other concerns of experience and reputed registered with the Office of the Engineer-in-Chief, Public Health Engineering Department, Bhopal to submit tenders in the manner prescribed. In response to the aforesaid invitation, the petitioners in both these writ petitions and four others filed their tenders. The tenders were processed in accordance with the Madhya Pradesh P.W.D. Manual. However, the tenders could not be finalised and, therefore, a call was given to the Contractors to attend the office of the Chief Engineer, Public Health Department, Bhopal on 24-10-88 for negotiation to offer revised bids, to reduce the value of the bid and to extend the validity period along with confirming the other conditions of the notice inviting tenders.
3. The Precision aggrieved by the order of the Chief Engineer inviting contractors for negotiation filed M.P. No. 1183 of 88 wherein a prayer was made to quash letter dated 4-10-88 inviting contractors for negotiation on 24-10-1988. The petitioner Om Metal was not made a party in that petition. Therefore it made an application for intervention. In that petition the grievance of the Precision was that although their tender was the lowest, still the contract was not given to them; instead, all the contractors were called for negotiation. This Court while deciding M.P. No. 1183 of 1988, vide order dated 4-11-88 held that the invitation to tenderers for negotiation is not in consonance with the P.W. Works Manual. Therefore, the order of the Chief Engineer, inviting tenderers for negotiation was quashed and the State was directed to consider the offers received by them on their respective merits.
4. After the passing of the aforesaid order by this Court, the State considered all the tenders. Thereafter on 25-11-88 the Government rejected all the tenders on the basis of the recommendations of an Expert Committee (filed as Annexure R/11) in M.P. No. 1413 of 88) wherein the Engmeer-in-Chief, the Chief Engineer-I, the Chief Engineer (Monitoring), the Chief Engineer-Ill, the Chief Accounts and Administrative Officer and the Executive Engineer (Design) considered the merits of the tenders. When the Committee tried to evaluate the price bids quoted by various tenders, they found that it was not possible to evaluate the tenders to arrive at the total cost of the project to be paid as per the tenders due to uncertainty about MODVAT, variation in taxes and variation in tax benefits to different units. Accordingly fresh tenders were invited for the above project. Aggrieved by the aforesaid second notice inviting tenders the Precision filed Writ Petn. No. 1413 of 83 against the State and its Officers making grievance against the rejection of the earlier tenders. According to them the earlier tenders were to be finalised and no second call should have been given. In that petition a show cause notice was given to the State as to why the petition be not admitted and the Court passed an interim order on the application seeking ad interim writ that all the tenders may be processed but not finalised and comparative statement be placed before the Court before issuing work order. Thereafter, after hearing both the parties the earlier ex parte order was modified and the Court order that the respondents shall be free to proceed with the processing of the tenders and finalise it. However, before the issuance of work order the respondents shall place the comparative statement of the tenders which may be received before this Court and the work order shall be issued thereafter,
5. The petitioner in that petition No. 1413 of wanted elucidation from the Court about the earlier order, Thereupon it was specifically stated that after the comparative statement of the tenders is placed before the Court the case shall be heard and the work order would be issued after the matter has been brought to the notice of the Court. The officers of the State Government in the Public Works Department on 1-6-1989 submitted an application stating therein that the respondents have finalised the tenders and before the issuance of the work order they are placing the comparative statement before this Court. A prayer was also made that in view of the urgency of the matter this case be heard during vacation. On 5-6-1989 the matter went before the Vacation Judge, who ordered the listing of the petition for final hearing on 26th June, 1989.
6. In the meanwhile the petitioners in M.P. No. 847 of 1989 submitted an application in M.P. No. 1413 of 89 to intervene and also filed a separate petition No. 847 of 1989. By this petition M.P. 847 of 89 the petitioners have challenged the method of evaluation of tenders by the State. According to Om Metal their tender was the lowest, but the Public Health Engineering Department has wrongly evaluated the tender of the Precision and has in the comparame statement shown the tender of the Precision as lowest. According to Om Metals there is practice that in the rate tenders the tenderers show their preparedness to give rebate at certain percentage. That rebate is considered at the time of evaluation of tenders. The Department has rightly taken into consideration the rebate of 1 per cent given in the tenders of the petitioner Om Metal but has wrongly changed the figures of the Precision’s tender treating it as an arithmetical mistake. According to Om Metal on 28th Jan., 1989 the sealed cover (envelope containing revised financial offer was opened in presence of representatives of tenders. At that time the rates quoted by different tenderers pertaining to rates of items 1(a), 1(b), 2(a), 2(b) and 3(a), 3(b) were read out, were circled and initialled by the Project Engineer. According to the petitioner after the evaluation the Project Engineer gave his report to the Chief Engineer mentioning therein that the tender of the petitioner Om Metal was lowest and forwarded for due consideration of the Chief Engineer, who forwarded it to the Engineer-in-Chief for obtaining sanction of the Government. The petitioner Om Metal averred that even the Engineer-in-chief after evaluation of the tender was of the opinion that the tender of the petitioner was the lowest. M Section Precision after having found that the tender of the petitioner Om Metal is lowest started manoeuvring and they attempted to put a camouflage upon revised financial offers rate by entering into correspondence with the authority incharge of processing the tender of which no copies were furnished to any other tenderer. However, the subsequent correspondence claiming that the quotation of M/s. Precision was lowest did not find favour with the Project Engineer and the Engineer-in-chief, but at the Government level treating the difference in the item rate quoted by M/s. Precision and the total of sub-items as an arithmetical mistake the figures quoted against item 2(a) offender were changed with the result that in the comparative statement M/s. Precision’s tender has been shown to be lowest where as actually the petitioner Om Metal’s tender was lowest. The Om Metal claims that the figure mentioned in item 2(a) are the actual figures and they are sacrosanct and cannot be changed by any authority. The break-up of items of 2(a) are is relevant only for the payment of running bills. The total of the break up of sub-item 2(a) cannot be pressed into service for correcting the amount mentioned in item 2(a). The petitioner Om Metal has also alleged that the said substitution of figure in the tender of M/s. Precision was violative of established norms, as such the action of respondents 1 to 6 in their petition is arbitrary, illegal and mala fide. They also claim infringement of the fundamental rights of the petitioner under Article 19(g) of the Constitution because being the lowest tender the right has already accrued in their favour which was destroyed by the said substitution by the Authorities. They have, therefore, prayed for issuance of a writ of mandamus against the State Government to accept the tender of the petitioner Om Metal with a direction to award a letter of intent and work order.
7. The petitioner Om Metal has filed the affidavit of one Shri Panjwani, Consulting Engineer, Bhopal who has worked as Chief Engineer in M.P. Irrigation Department, Bhopal. According to the affidavit he has opined that an item rate tender is a tender in which a contractor is required to quote his price against each item separately. For an item rate tender, the tenderer is required to quote his rates for each and every item individually. He has also stated the experience which he had as Chief Engineer and other experience as an Expert. He further states that the total of sub-headwise break-up provided in support thereof must he equal to the rate quoted in the price schedule. This sub-headwise break up is an ancillary to the price schedule for facilitating payment of running bills so that the contractor would have easy flow of funds to execute the contracted work. Any mistake in the break up does not in any manner control, govern the item rates and it is not within the competence or authority of the Department to alter, modify or change the item rates to reconcile any mistakes which the contractor commits in filling the tender. He has also relied on paras 4, 5, 6, 9 and 27. at pages 4 to 10 and 24 of the book titled ‘Law Relating to Building and Engineering Contracts’ by G. T. Gajria, 1985 Edition.
8. The respondents Nos. 1 to 6 have denied the allegations made by the petitioner Om Metal, in their return to the petition. According to them the tender was an item tender and the items in the tender have the sub-heads as enumerated in para 8(a) of the return. While replying to para 8(b) of the petition it has been stated that the sub-items 1(a), 2(a) and 3(a) are the items by itself against which the tenders were required to give their prices. The tenders were required to indicate the prices of the individual sub-items as per the notice inviting tender. The rates of the sub-items are not merely to facilitate the payment of running bills after acceptance of lender. These items are as per the requirement of N.I.T. and their relevance lies in the fact that the same constitute primary data particularly since the tenders are required to quote the price, the taxes and duties leviable on items. The sub-items further include cost of material, design and fabrication cost including shop and field painting and transportation cost for the proper and correct levy of duties and taxes and subsequent new levies in future in case of statutory variation. Therefore, the present tender being an item rate tender, the sub-items are important for the evaluation of the final cost of the tender. As such the sub-items have the main role and not the auxiliary role as stated by the petitioner. The pattern of taking note of the sub-items is in practice for years. It has also been denied that in item rate tenders sometimes the break ups are given by separate letters. The petitioner himself has admitted in para 8(b) that in items rate tender the contractor is required to quote its price against each item separately. The evaluation of tender is done based on the rates offered against each individual and not on the lump sum price. Therefore, each individual sub-item has its relevance for arriving at the final cost of evaluation.
9. The averment of the petitioner that there is general practice in the matter of giving tenders by putting a note of preparedness to give certain per centage of rebate, has been denied. However, in the instant case a weight-age has been given to the per cent rebate of the petitioner Om Metal and similarly to the arithmetical calculation error made by M/s. Precision. The aforesaid action of the authorities was in public interest, otherwise the public exchequer has to bear the loss of additional expenditure.
10. As regards the recommendations of the Project Engineer, the Chief Engineer and the Engineer-in-Chief, it has been stated that the cost of the tender being Rs. 370 lacs the competency of acceptance or rejection of tender was that of the State Government as per the provisions of the P.W.D. Manual, Volume I, para 2,094(5) and in such types of tenders where the acceptance is under the competency of the State Government, the rules of the other Officers of the Department like Project Engineer. Chief Engineer and Engineer-in-Chief is to scrutinise and process the case for submission to the Competent Authority i.e. the State Government for its decision. None of the tenderers made any camouflage upon the revised financial offer by way of correspondence. The correspondence done by the tenderer after the opining of the revised price bid has no bearing on the evaluation. The Competent Authority i.e. the State Government has finally evaluated the tendered cost correctly as per the procedure on the basis of the offers given by the tenders. The final cost statement submitted before the Court on 1-6-1989 represents the comparative position of the offers of the tenders after evaluating financial implication and condi-tions mentioned by the tenders. According to the comparative statement the tender of M/s. Precision is lower to that of the tender of Om Metal by about Rs. 53,000 -. Therefore, it was in the public interest to treat the tender of M/s. Precision as the lowest tender. Actually the total of sub-items of item 2(a) mentioned by M/s. Precision as Rs. 39,40,200 against item 2(a) was an arithmetical error of totalling which has been correctly put in the final comparative statement submitted to the Hon’ble Court. The rebate of one per cent given by the petitioner is under columns 5 and 7 only, which are the columns for rate in figure and tendered amount in figure. The petitioner has not mentioned rebate under Col. 7 and Col. 14 in the statement of revised financial offer. Column 7 represents the rate in words and column 14 represents total tendered cost in words. Here also due consideration has been given for this mistake and the rebate has been considered while evaluating the final cost of the tender of the petitioner Om Metal. It has been emphatically denied that any substitution, modification, rectification or alteration has been made in the revised financial tender offered. It has also been stated that the petitioner has no locus standi to file this petition as the procedure stipulated in N.I.T. has been followed and the earlier order of the Court has been complied with. The State Government has powers to accept any tender as per para 2.087 of the Works Department Manual. Volume-I and similarly it has the right to reject all or any of the tender as per para 4.1.5 of the NIT, page 59.
11. The respondent No. 7 also filed a return to oppose the reliefs sought by the petitioner wherein after tracing the history of the earlier petitions the respondent No. 7 has stated that according to the correct analysis of the price schedule, items 1, 2 and 3 in column 1 denote the classification of the work tendered. Sub-items 1(a), 2(a) and 3(a) or 1(b), 2(b) or 3(b) in Col. 2 thereof denote the description of the work tendered as compulsory or optional. Each of these sub-items have further details in its respective break-up, showing the individual work items tendered. Actually the tenderer has to quote first his price offer itemwise in the respective prescribed breakups and then to give the sum total thereof and thereafter has to quote his total price offer of the break-up as against each sub-item. Thereafter the Department evaluates the tender. The affidavit of the retired Chief Engineer is misleading and incorrect. The sub-items are not only for purpose of facilitating running bills, but they are items in themselves. The price schedule has got to be read and interpreted as a whole and not in piecemeal. It is wrong to say that the price quotation under item rate tender is sacrosanct or is not liable to be rectified in the process of evaluation. The petitioner has used uncalled for epithets like ‘tampered with’, ‘molested’, ‘altered’ or ‘played upon’. It is obligatory to check up price quotation of each broken up sub-item so that it agrees with the lump sum figure shown in corresponding columns for the respective sub-items. The Department is well within its power to correct and determine the price offered both sub-itemwise and itemwise and unless that is done the process of evaluation is not complete. The break-up value of each sub-item is an integral part of process of evaluation for considering the sub-itemwise price offer by the tenderer. The sum total of the break-up value of sub-itmes of item 2(a) of M/s. Precision is 38,40,200/-, but there was an arithmetical mistake in calculation. Therefore while evaluating the tender the mistake was corrected. The respondent No. 7 has also challenged the correction in the tender of petitioner Om Metal pertaining to 1 per cent rebate because the 1 per cent rebate has not been properly mentioned by him in all the columns of the tender which are necessary. It has also been alleged that how a private person can aver about the internal recommendations of the concerned engineers when he is not supposed to have access to the official file. The respondent No. 7 has, therefore, made a prayer for dismissal of the petition with costs.
12. The petitioner Om Metal by way of rejoinder filed an affidavit denying the averments made in the returns and has filed the note of the Secretary, CBMP and the minutes of 172nd meeting of Progress Review Committee held on 30-1-1989. A copy of the N.I.T. of M. P. Rajya Sethu Nirman Nigam Ltd. an affidavit by one more chartered Engineer and Arbitration Consultant Shri Kathuria, New Delhi, in support of the averments made in the petition, has also been filed.
13. The State has also filed the minutes of the 157th meeting of P.R.C. held on 11-8-86, to show that there is no deviation from the established norms in evaluating the tenders. The Agenda Note of Colar Project has also been filed as Annexure R/2-A. The letter of the Joint Secretary, Government of M.P. to the Project Engineer dated 1-7-1989 has also been filed as Annexure R/2. Minutes of Control Board’s 40th meeting has been filed as Annexure R/2C, and Agenda Note of 173rd meeting of the Government of M.P. Irrigation Department Control Board, pertaining to Bargi Dam indicating the way of evaluating the contract has also been filed.
14. The learned counsel for the petitioner Om Metal has vehemently argued that the change in the figure in the tender of respondent No. 7 M/s. Precision was against the settled engineering practice and it amounted to tampering with the tendered document which is sacrosanct. The Government Officers dealing with the matter of tender cannot be allowed to change the tender amount. If there was any discrepancy in the main item and its sub-items, then the main item could not be touched. The break up on the main item could have been corrected in accordance with the main item. He has also laid much emphasis on the term ‘break up’ and with the aid of the dictionary meaning of the word ‘break up’, has argued that the break up can be only of the main item and, therefore, the sub-items as a result of the break up would be subordinate to the main item. It is the main item which is broken into sub-items and, therefore, the tender amount mentioned in the main item is the actual amount. According to Shri Waghmare, learned counsel, the State Government itself on earlier occasions had rejected the tenders for the aforesaid variation which was found in the tender of Om Metals.
15. Shri A. K. Chitale, learned counsel for respondents Nos. 1 to 6, on the other hand, has invited our attention to the conditions of the notice inviting tenders and the P.W. Works Manual. According to him the contract is an item rate contract and in such a contract the sub-items are the main item of an item from which the real value of the tender can be evaluated. As there was a difference between the sub-item and the main item in item No. 2(a) of respondent No. 7. The items were corrected as it was only an arithmetical mistake.
16. Shri G. M. Chaphekar, learned counsel for respondent No. 7, supporting the decision of the State Government has urged that in an item rate tender price has to be quoted for each item according to the condition of the N.T.T. According to the works Manual, Vol. I, para 2.083 also the essence of the contract is that each item should be specified. The break ups of the items are the actual items on which the evaluation of the tender is based and the figures given against item 2(a) are only the total of the sub-items shown under the head of break up of item 2(a). The break up of item 2(a) is shown as sub head and a plain reading of the tender form will reveal that for each sub head the price has to be quoted separately and it is the total of these items which is the actual cost to be shown in item 2(a). By inadvertence there was an arithmetical mistake which was corrected by the Department while evaluating the tender. It is wrong to say that the price quoted against item 2(a) is sacrosanct and cannot be changed even if it may be only an arithmetical mistake. It has also been submitted that the Government has got powers to accept or reject any tender and when the Experts examined that tenders for evaluating the correct value of the tender they have got every power to correct the arithmetical mistake. It is wrong to say that the aforesaid correction was as a result of any manoeuvring on the part of respondent No. 7. According to Shri Chaphekar it was the petitioner who was aggrieved by the Government decision and, therefore, had to file M. P. No. 1183 of 88 and thereafter another M.P. No. 1413 of 88, as a result of which the comparative table of the tenders came to be placed before the Court.
17. In view of the aforesaid arguments, first of all we shall consider the grievance of petitioner M/s. Precision in M.P. 1413 of 88.
In that petition the petitioner is aggrieved by the decision of the Govt. rejecting all the tenders of the first call and reuniting the tenders. According to the petitioner the second call for tenders issued by the Government was in violation of the M.P. Works Department Manual and is in derogation of the final judgment of this Court in M.P. No. 1183 of 88, dated 4-11-88. Therefore, the order inviting the second tender be quashed and it be further directed to accept the tender of the petitioner being lowest under the first call of tenders.
The petitioner M/s. Precision had filed M. P. No. 1183 of 88 challenging the decision of the Government to invite contractors for negotiation on the ground that it was not in consonance with the Manual. This Court, vide its judgment dated 4-11-88 held that the call for negotiation of tenders after the first call is against the Public Works Manual as framed by the M.P. Government and was also against the conditions contained in the notice inviting tenders. Therefore, the order of the Government inviting tenders for negotiation after the first call was quashed and the Government was directed to consider first the tenders received in response to the first call and then to take a decision on merits and to arrive at a conclusion according to Rules in the Public interest.
18. Now it cannot be disputed that according the Public Works Manual and the conditions contained in the notice inviting tender, the Government could accept or reject any tender offered in response to the notice inviting tender and the Court would interfere only when the rejection of a particular tender and acceptance of any other tender is as a result of any arbitrary or capricious decision of the authorities in preferring one tender against the other. The Supreme Court in the case of Shri Harminder Singh Arora v. Union of India, AIR 1986 SC 1527, has reiterated this principle. In the instant case the Government has rejected all the tenders after getting the matter examined by a Committee of Experts, who recommended the cancellation of all the tenders of the first call and to reinvite tenders. The Minutes of the Committee reveal that the decision has been taken by a Committee of Experts and reinviting of tenders does not show any favour of any of the contractors. This Court while entertaining petition No. 1413 of 88 had directed the comparative statements to be placed before this Court with a view to ascertain that the reinvitation of tenders is in public interest and the cost of the project is not enhanced as a result of the retendering. The comparative statement placed before us clearly indicates that the cost of the project has gone down instead of any increase in it. Therefore, we do not find any substance in the allegations made in petition No. 1413 of 1988. The petition is, therefore, disallowed.
19. As regards petition No. 84-7 of 1989, arguments have been advanced by the learned counsel for the parties in details as referred above. All the learned counsel have placed reliance on the judgment of the Supreme Court in Shri Harminder Singh Arora v. Union of India (supra). In the said judgment it has been held that although the Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily. The tenders received by the State have to be adjudged on their own intrinsic merits in accordance with the terms and conditions of the tender notice. The Supreme Court in this case has placed reliance on the earlier decision of the Court in Ramana Dayaram Shetty’s case reported in AIR 1979 SC 1628 wherein the Supreme Court has held as under (at p. 1644):
“Though the language in which this observation is couched is rather wide, we do not think that in making this observation, the Court intended to lay down any absolute proposition permitting the State to act arbitrarily in the matter of entering into contract with third parties. We have no doubt that the Court could not have intended to lay down such proposition because Hidayatullah, J. who delivered the judgment of the Court in this case was also a party to the judgment in Rashbihari Panda v. State of Orissa, AIR 1969 SC 1081, which was also a decision of the Constitution Bench, where it was held in so many terms that the State cannot act arbitrarily in selecting persons with whom to enter into contracts. Obviously what the Court meant to say was that merely because one person is chosen in preference to another, it does not follow that there is a violation of Article 14, because the Government must necessarily be entitled to make a choice. But that does not mean that the choice be arbitrary or fanciful. The choice must be dictated by public interest and must not be unreasoned or unprincipled.”
In the aforesaid case the Supreme Court has considered the case of C. K. Achuthan v. State of Kerala, AIR 1959 SC 490, where it was held that (at p. 492):
“a contract which is held from Government stands on no different footing from the contract held by a private party and when one person is chosen rather than another, the aggrieved party cannot claim protection of Article 14.”
This observation of Hon’ble Justice Hidaya-tullah (as he then was) was explained by Hon’ble Justice Bhagwati in Ramana Daya-ram Shetty’s case (supra). As such in view of the aforesaid dictum of the Supreme Court it cannot be disputed that the Government and its instrumentalities are not free as a private party in the matter of accepting or rejecting a tender. The Government is subject to restrains inherent in democratic society and in the matter of grant of or rejection of tenders the Government cannot act arbitrarily and capriciously. It cannot be allowed to make a departure from the Rules, norms and standards violating the equality clause enshrined in the Constitution.
20. In view of the aforesaid now it has to be seen whether the Government functionaries have tampered with the tendered document or have just corrected the clerical mistake in the tender of respondent No. 7 M/S. Precision. It is not in dispute before us that the total of sub-items under the subheads of item 2(a) is Rs. 38,40,200/-, whereas the figures against item No. 2(a) were quoted as Rs. 39,40,200/-. It is also not disputed that at the initial level recommendations were made by the Engineers treating the tender of the petitioner Om Metal as lowest. But when the matter reached before the Govt. which is undisputedly the authority empowered to accept or reject the tenders, the matter was considered by the Experts and it was decided to correct the arithmetical mistake in the tender of M/s. Precision as well as to ignore the omissions in the tender form of Om Metal pertaining to mention of percentage rebate in all the columns of the tender and to take into consideration the rebate of 1 per cent as stated by Om Metal. As such while evaluating the tenders the State Government arrived at the lowest cost of each of the tenders according to the tenders. Therefore, there is no evidence or the slightest indication to show that the Officers of the Government in any way tampered with the tendered document, altered it or played on it. It is manifest that the Government authorities took a decision bona fide and the correction made in the tender form of M/s. Precision was treated as an arithmetical mistake. Similarly, the I per cent rebate given by Om Metal was also taken into consideration despite certain omissions. As such we are not prepared to agree with the submission that the concerned officers have in any way tried to show favour to any one of the contractors. The repeated writ petition’s before this Court clearly indicate that neither M/s. Precision is satisfied with the earlier decision of the Government nor Om Metal is satisfied with the present decision of the; Government. Therefore, it cannot be said that the Government tried to favour either of the two contractors who are contesting the issue of alteration in the tender cost before us.
21. Now the only question which remains for determination is as to whether the figures mentioned against item 2(a) are such sacrosanct that they could not be varied and despite a variation between the total of the sub-heads the amount against item 2(a) could not be corrected and if a correction of the arithmetical mistake would at all have been necessary, then the sub-heads should have been corrected. This also involves a question whether the figures given against the sub-heads are the actual figures for evaluating the cost of the tender or the figure against the major item 2(a) is the correct figure. This matter can be resolved by the Technical Experts and this Court cannot substitute its opinion over the opinions of the Technical Experts. Now in support of its contention Om Metal has filed the affidavits of two retired Chief Engineers and Experts in the field who have sworn affidavits to the effect that the change in the main head i.e. item 2(a) is not permissible. The sub-heads are meant only for payment of running bills and they are ancillary. Except this, the sub-heads have no significance. The petitioner has also filed the minutes of the meetings for evaluation of the tenders in Sardar Sarovar (Narmada) Project and Kali-nadi Hydro Electric Project, whereas the State Government has filed the minutes of the meeting dated 3-4-89 as Annexure-L wherein the Chief Engineer, Zone III, PHE, Chief Engineer, Irrigation Department, Chief Engineer (E/M), Irrigation Department, Chief Engineer, Mechanical, PHE, Drilling Expert, PHE, Superintending Engineer, Mechanical, PHE, and Executive Engineer, PHE, Project Division, Ujjain were present. In that meeting the financial offer of different tenderers was shown and discussed, particularly that of the two contesting tenderers before us. In that meeting the rebate given by Om Metal was discussed and the omission in column 14 of the rebate was also considered. Similarly the consolidated rate of stoplogs of M/s. Precision being in variance with the total of the sub-heads was also considered. In that respect two engineers were of the opinion that if there is a variation between the consolidated item and break up then the lower of the two should be regarded as valid as it is more beneficial to the Government. The Government has also filed the D.O. of the Joint Secretary in the Public Health Engineering Department written to the Superintending Engineer, Gambhir Project, wherein it has been mentioned that in the event of discrepancy between the lump sum value of item and corresponding total of break up of sub-items, the policy is to consider the lower of the two which is advantageous to Government. In tenders of major works, the arithmetical errors are corrected to advantage of the Government in final evaluation. The State has placed reliance on the established engineering practice in the matter of evaluation of tenders and the procedure regarding the ac-cepiance or rejection of tenders after evaluation in the Kolar Project. The Agenda Note of the Kolar Dam Project is filed as Annex.-R/2A. The Minutes of the 157th meeting of the Progress Review Committee of Control Board for Major Projects has been filed as Annexure-R/2B and Annexure-R/2C.
22. At the time of the arguments both the
learned Counsel for M/s. Precision and Om
Metal drew our attention to the different
parts of the proceedings of the Kolar Dam
Project and according to their respective
interpretations the mode adopted by the State
Govt. in the Kolar Dam Project is one which
supports their respective case. We have care
fully gone through the minutes of the PRC of
the Kolar Dam Project Annexure-R/2B and
Annexure-R 2C and also the Agenda An
nexure-R 2A. In the Agenda at internal
page 12 it has been stated as the totals of rates
under items 1(A), 1(B), and 1(D) did not add
to the overall rate quoted against item No. 1,
the evaluation was done on the rates quoted
under items 1(A), 1(B), 1(C) and 1(D). How
ever at page 15 it has been observed “the firm
is expected to quote a through rate for each
item Nos. 1 and 2 of C Schedule and give
break up of costs under each item as detailed
in G Schedule. The firm has, however, quoted
a rate of Rs. 23,04,479.20 with total amount
of Rs. 1,84,35,833.60 against item No. I. No
through rate has been indicated against item
No. 2. The break up of costs for items 1(A),
1(B), 1(C), 1(D) and 2(A), 2(B), 2(C), 2(D) has
been given. That the total of these break ups
total to the amount which is indicated against
item No. 1. The above mistake is a serious one
and can be considered as deliberate. The
tenderer should not be allowed to take advantage of this mistake. However, these discrepancies were taken into consideration and the
amount was reduced in view of the difference
in figures and words of rate. In the Agenda the
lowest offer was recommended for acceptance.
23. The Minutes of the 157th meeting of the P.R.C. however show that the lowest tender was not accepted. There is an observation at page 12 of the report– “M/s. Om Metals have quoted for item (1) while item (2) has been left blank. They have however given break ups for item (2) A and thus the sum total of break ups given for items 1 and 2 agree with the total. However, the Chief Engineer has stated that this mistake was a serious mistake and could be treated as a deliberate mistake”. On the same page the Committee expressed its desire to consider the offer of M/s. Om Metals if the firm’s stipulation on the design aspects are not considered to be a major deviations regarding the tender conditions and hence non-responsive. Thereafter the Committee appears to have considered the conditions of the firm as major deviation from the tender condition and the omission in the rates causing the evaluation exercise difficult and even complicated. The tender of M/s. Om Metal was in that case treated as non-responsive and rejected.
24. After going through the proceedings we do not deem it proper to interpret the aforesaid proceedings because there are two factors involved in that decision, one is the deviation from the design and the other is the non-mention of the total amount against a particular item although the total of the break ups of that item tallies with the total cost of tender. As held above the matter of evaluation of tenders is entirely the job of the Experts and this Court would not substitute Us opinion for that of the Experts. It is the Experts who have evaluated the tenders in the light of the settled engineering practices. Therefore, we would direct that the tenders may be finalised by the State Government after seeking the Expert opinion of the Technical Experts keeping in view the settled engineering practices. In the instant case as both the State Govt. and the petitioners have placed reliance on the proceedings of the Kolar Dam Project, which is a precedent and provides guidelines for evaluation of tenders, therefore, the Government may evaluate and finalise the tenders of the petitioner and respondent No. 7 taking the decision of the Government in the Kolar Dam Project as precedence so that there may not be any cause for complaint by anybody and there may be no allegation of deviation from the settled engineering practices. We may also observe that while deciding M.P. No. 1183 of 88 we had observed that this work should be completed expeditiously in view of the urgency due to the Simhast Mela at Ujjain. However, as the tenders of the first call could not be finalised and a second call was given and thereafter the evaluation of the tenders and placing the comparative table before the Court took a long time and due to summer vacation this case remained pending for about two months in the Court. Now it is expected that the tenders shall be evaluated and finalised in view of the aforesaid observation as early as possible and work orders issued accordingly. It may also be made clear that the interim order asking the Government to place the comparative statement before this Court shall no more remain in existence and the Government, without taking any further directions from the Court, can decide the acceptance of tender and issue work orders accordingly.
25. In the result M.P. No. 1413 of 88 is disallowed. M.P. No. 847 is also disallowed with the observations made and directions given above. Parties to bear their own costs. The security cost, if any shall be refunded to the petitioners after verification.