ORDER

The petitioner has sought for a Writ of Mandamus, forbearing the respondent from awarding the de-scoped portion of work of the petitioner to any third party, without following due process of law in awarding the works by issue of a public open tender in a transparent manner.

2. The petitioner is the contractor, who was awarded with the contract of construction of Pamban Bridge, parallel to the existing bridge No.346 at Km.655/000 - 657/200, including vertical lift span between Mandapam and Pamban Railway stations in Madurai Division of Southern Railway.

3. The Letter of Acceptance was given on 02.08.2019. Now, the challenge is to the unilaterally de-scoped part of the works as per the Letter of Acceptance. The petitioner is a contractor, who is specialised in construction of Rail Over Bridges/Bridges/Fly-overs and road works including water supply projects.

4. The respondent had issued a Notice Inviting Tender on

02.01.2019 for the re-construction of the famous Pamban Bridge, which was originally built in the year 1914. The present bridge is a parallel one to the existing bridge. The earlier tender was in two folds, namely technical and financial and the petitioner bagged the contract work involving construction of 3.36 Km long railway bridge over Pamban river that has the Bay of Bengal on one side. On receipt of the Letter of Acceptance, a bank guarantee towards Performance Security was furnished and a contract agreement was executed on 06.03.2020. The petitioner blames the respondent for certain deficiencies from the beginning. It is alleged that the respondent did not provide the critical details for carrying out the works or had provided details misguiding the petitioner. In addition to the above allegation, the petitioner also had blamed the respondent for:

(i) Failing to clarify the date of commencement;

(ii) The petitioner was required to take up the work from both the approach ends of the project i.e. from Mandapam end and the Pamban end, as per the contract provisions;

(iii) The petitioner proceeded with the work only from Mandapam end for which the respondent declined to provide facility to cross the railway track;

(iv) The petitioner had to wait for removal of hindrance and encroachment for enabling movement of heavy and massive mechanical equipments to reach the actual work site;

(v) The geo-technical details furnished by the respondent did not match as shown in the tender documents. The respondent was also not ready with the design and drawing for the retaining wall at the Mandapam end.

(vi) The start and end points were unavailable;

(vii) The information regarding the depth of the sea is false and vague and the petitioner had to commence piling works despite there being various deviations, mismatch etc. The depth of the pile was actually different from what was indicated in the work drawing, as the pile has to rest on the rock, the petitioner had to conduct SPT test for the same pile at various depths to decide upon the pile termination. The date of commencement was also not clear and it was contrary to the bid provisions.

5. It is further stated by the petitioner that several details, such as change in the location, access to site, change in geography/depth of the sea water available etc. were at variance from what was given at the time of tender and that there was a delay in furnishing the same. In addition to the above, the nation- wide lock-down due to COVID-19, brought the work to a standstill. The petitioner had been informing the respondent about the difficulties faced by it, by various letters. Despite pointing out the above difficulties and the unforeseen circumstances like COVID-19 Pandemic situation, the respondent had issued a Notice to Correct on 08.10.2020. A reply was sent by the petitioner on 19.10.2020 reiterating the issues faced due to the respondent's lack of clarity and inertness in the tender.

6. While so, on 30.10.2020, the respondent had issued a Notice of Part Termination of the contract thereby