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Judgment
Deepak Gupta, J.—By means of this writ petition the Petitioner has basically prayed that the Respondent No. 1 Corporation may be directed to issue public tenders inviting bids from all the manufacturers of explosives and the supply orders placed by the Respondent No. 1 with Respondent No. 2 be quashed since they have been placed without inviting any bids from the open market.
Briefly stated the facts of the case are that the Respondent No. 1 National Hydroelectric Power Corporation Limited (NHPC) is executing the work of construction of the Parbati Hydro Electric Project, state-II, in Kullu District of Himachal Pradesh. Admittedly, contracts for construction of the major works were awarded by the NHPC in the month of September, 2002 to a number of contractors. In terms of these contracts, the explosives were to be provided by the NHPC. In some of the contracts the explosive to be supplied mentioned in the contract was "Power Gel" which is a brand name and this brand of explosive is manufactured by Respondent No. 2 alone. The Petitioner has also made a number of supplies of explosives to the NHPC.
The complaint of the Petitioner is that under the garb of the contract wherein a specific brand is mentioned, the Respondent No. 1 Corporation is placing major orders with Respondent No. 2 only and that too without inviting bids or tenders. The stand of the Respondent is that in terms of the contract of 2002 it is bound to supply "Power Gel" explosive to the contractors. It is further contended that Respondent No. 2 has not been in a position to supply the entire quantity and therefore on various occasions open tenders have also been issued. The position till the date of filing of the petition is reflected in the following table:
Through Open Tender
Through Single Tender
Year
Name of Company
Quantity (in metric tones)
Year
Name of Company
Quantity (in metric tones)
2002
M/s.Solar Explosives Ltd.
30.00
2002
M/s Indian Explosives Ltd.
32.00
2003
-do-
460.00
2003
-do-
27.00
-do-
M/s.Bharat Explosives Ltd.
9.00
2005
-do-
448.00
2004
M/s Solar Explosives Ltd.
337.50
2006
-do-
1075.80
-do-
M/s Bharat Explosives Ltd.
337.50
2007
-do-
763.00
2005
M/s.Solar Explosives Ltd.
247.50
-do-
M/s Bharat Explosives Ltd.
193.50
A perusal of this table shows that in fact on a number of occasions through open tenders supply orders have been placed on the Petitioner Company and M/s. Bharat Explosives but admittedly a lot of supplies are being taken from Respondent No. 2 M/s. Indian Explosives on the basis of single tender basis.
Single tender as per the procedure laid down in the Procurement Manual of NHPC can be followed in case of proprietary items. The relevant provision of the manual reads as follows:
5.0 Single Tender Enquiry (STE): This mode of tendering shall be adopted in case of either very urgent requirements or single source availability due to proprietary nature of items or source standardization or due to any other justified reason. Before floating ST Es, reasons for doing so shall be recorded and approval obtained by the competent authority in this regard. The Proprietary Article Certificate (PAC)/Source Standardization Certificate, wherever applicable shall be got approved by an executive of the Indenting Division not below the rank of Chief Engineer.
It is no doubt true that the Apex Court in a number of cases has laid down that normally single tender system should not be followed and supplies should be made through open tenders. However, in this case we find that the procurement manual itself provides that single tender system can be followed. The contract entered into between the NHPC and its contractors provides that the NHPC shall supply "Power Gel" explosives. The NHPC is therefore bound to supply "Power Gel" explosive only.
The NHPC has placed sufficient material on record to show that some of its contractors had complained about the capability of the explosive manufactured by the Petitioner Company. In fact an award has also been placed on record which shows that a fairly large amount has been awarded in favour of the Contractor and against the NHPC on the ground that "Power Gel" explosive was not supplied. We need not make reference to each and every document but there is sufficient material to show that the contractors had been praying that they be supplied particular brands of explosive only. Once the brands were mentioned in the contract it would be difficult for the Respondent Corporation to get out of the same.
The Petitioner has relied upon a number of judgments which lay down that while purchasing goods, Government Agencies should follow the open tender method and invite bids from the open market.
There can be no quarrel with this proposition of law and therefore we do not intend to refer in detail to all these decisions.
In the present case the contracts were entered into by the NHPC with the contractors as far back as in the year 2002. It would have been better if no proprietary names had been mentioned in the contract and only the generic or technical specifications of the explosives had been given so that the NHPC could have sourced the explosives of the specified power and meeting the technical specifications from any manufacturer. In future we would expect the NHPC to follow such a policy which would be in consonance with the guidelines laid down by the Central Vigilance Commission. However, more than 7 years after the contracts were entered into and at a time when the work is virtually coming to an end we cannot re-write the contracts. This would give an handle to the contractor to claim more amounts from the NHPC.
In the peculiar circumstances of this case we feel that no relief can be granted to the Petitioner. The petition is accordingly rejected. No costs.