Point of law : Since the terms “except goods and service tax” was specified in Clause 3.3.3 of Ext.P1, the petitioner could only have quoted the bid amount, without including the GST.

JUDGMENT :

Respondents 2 and 3 invited tender for a work titled “NABARD RIDF XXII Infrastructural works in Kurinjikkal Construction of Bridge across Puzhakkalthodu in Kurinjikkal Puthurkkara in Thrissur District” for an estimated cost of Rs.4,11,42,054/-. Petitioner bid for the work and his tender was accepted for an amount of Rs.3,92,70,000/-.

2. Ext.P1 was the Notice Inviting Tender (for short 'NIT') for the said work. Interpretation of Clause 3.3.3 in the said NIT is called for, in this writ petition. For the purpose of easier comprehension the said Clause is extracted as below:-

“3.3.3. The rates quoted by the Bidder shall include cost of all materials and conveyance, labour charges, hire charges of plant and machinery, overheads and all incidental charges for execution of the contract. The rate quoted shall also include all statutory taxes and other mandatory remittances payable by the contractor as per existing tax systems and government orders which are applicable to the contract, except Goods and service Tax (GST).”

(emphasis supplied)

Petitioner contends that when he quoted for the tender he had not included the component of tax for GST as the tender document stipulated so, as per Clause 3.3.3 of Ext.P1. It is also pleaded that the prescribed format of BoQ also did not contain any clause to incorporate the GST component of tax.

3. Petitioner contends that thereafter, when the bill was submitted, respondents refused to pay the component of GST. Immediately, petitioner approached this Court in W.P.(C) No.22433 of 2020 and by judgment dated 23.10.2020, this Court directed a decision to be taken on the representation submitted by the petitioner. Pursuant to the said direction Ext.P9 order was issued by the 3rd respondent, declining the claim put forth by the petitioner. For the purpose of reference, the order in Ext.P9 is extracted as below:-

“Regarding the matter of GST, KLDC is a Government owned company which adopts rules and regulations of government, especially PWD orders and circulars from time to time. The estimate for the works before 15.03.2019 is prepared based on the cost indices as per circular in reference cited (1), which is inclusive of GST provision and hence, the rate of each item includes GST component also.

As per the reference (2) cited, the base estimate is prepared based on rates devoid of GST with effect from 15.03.2019. Hence for tenders invited based on estimate prepared after 15.03.2019, the contractor can quote rate without taxes, and taxes will be given extra.

Thus, for the agreements executed prior to the circular date in reference (3), the contractors are not entitled to obtain any additional claim by way of any other tax including GST.”

4. In this writ petition while impugning Ext.P9, petitioner claims for a declaration that the terms of Ext.P1 govern the contract, apart from a direction to the respondents to clear all the bills raised by the petitioner. The contention raised by the petitioner is that, when the respondents put forth Ext.P1 tender, inviting bids to be submitted without including GST, they cannot thereafter turn around and canvas the proposition that the bids ought to have included the GST component.

5. The 3rd respondent has filed a counter affidavit stating that the payment of GST is a statutory obligation of the person who render the service or carry any work of contract for the Government. It was also stated that the word 'Except' in Clause 3.3.3 of Ext.P1 was intended to avoid a separate GST amount in the bid, but that it was always included in the estimate and further that all other bidders quoted their bid by including the GST amount and also that other bidders had not interpreted the word 'Except' in Clause 3.3.3 of Ext.P1 in the manner interpreted by the petitioner. It was also pleaded that if other bidders had not included GST in their quotes their bids would have been lower than that of the petitioner. The counter affidavit further goes on to state that by order dated 27.01.20