A successful bidder is bound by subsequent Government orders modifying tender conditions if the Notice Inviting Tender expressly incorporates such future orders, provided the modification occurs before the final contract execution.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.1.2020, THE COURT ON 21.8.2024 DELIVERED THE FOLLOWING:

JUDGMENT

(Dated this the 21st day of August 2020)

The petitioner is a Government contractor, who participated in the tender invited by the 2nd respondent for the construction of a new building for Government ITI, Vengoor. The Notice inviting Tender is produced as Ext.P1 dated 31.10.2019. The estimated cost of civil work was for an amount of Rs.4,23,47,786/-. The period of completion is one year and six months. The last date for submission of the bid document was 18.11.2019, and the tender opening was fixed on 22.11.2019. It is stipulated in Ext.P1 that the terms and conditions of the contract shall be as per the bid documents published in the e-government procurement website www.etenders.kerala.gov. Ext.P2 is part – IV of the bid document, wherein, as per serial No.23, the defect liability period is fixed as 3 years.

2. The bid was opened, and the petitioner was awarded the tender as per Ext.P3 selection notice dated 27.12.2019 for an amount of Rs.3,75,11,340/-. In Ext.P3, the defect liability period is fixed at 60 months. On receipt of Ext.P3, he met the 2nd respondent and informed him that since the defect liability period is enhanced to 60 months, he is not ready to accept the tender. Thereafter, he sent a letter dated 14.1.2020 stating that he is not acceptable for doing the work with a defect liability period of 60 months. The 2nd respondent, by Ext.P4 dated 18.1.2020, replied that the defect liability period is re-fixed based on Ext.P5 Government Order dated 25.11.2019. The petitioner challenges Ext.P3, P4 and P5 to the extent it enhances the defect liability from 36 months to 60 months and for a direction to the respondents to allow the petitioner to execute the agreement ignoring the defect liability period as per Ext.P5.

3. A statement is filed by the 2nd respondent contending that at the time of inviting tenders as per Ext.P1, the defect liability period of the work was 36 months. But the contractor is bound to follow the Kerala State Government Orders and circulars issued till the execution of the contract and thereafter, as per para 5.2 of the Standard Bid Document, which is a part of the Notice Inviting Tender (NIT). The request of the petitioner to cancel the tender condition regarding the defect liability period of 60 months and to issue a fresh notice with the defect liability period of 36 months, was replied stating that it cannot be accepted as it is against the Government Order. The petitioner was directed to execute the agreement in time in order to evade the fine. Ext.P5 Government Order enhancing the defect liability period is issued prior to the issuance of the selection notice and prayed for dismissal of the Writ Petition.

4. A reply affidavit is filed to the statement filed by the 2nd respondent, wherein it is contended that Ext.P5 was issued after the tender notice dated 31.10.2019, the date of submission of bid on 18.11.2019 and the bid opening date on 22.11.2019. Clause 5.2 of the General Conditions of Contract, which is part of the Standard Bid Document, is not relevant in this case, as there is a specific provision dealing with the defect liability period in the contract itself and orders/circulars applicable are at the time of the contract connected to the execution of work under the contract and not terms of the contract.

5. Heard Sri. Lal K Joseph for the petitioner and the senior Government Pleader Shri K V Manoj Kumar for the respondents.

6. The short question to be considered in this Writ Petition is whether the defect liability period of 36 months in Ext.P2 can be varied to 60 m