Aqua shay one a AQUA, SUZ Duchy lic er Shri.K.C.Purohit, a Chairman & Managing Director, Evcued 26.12.2014 Nuclear Power Corporation of India Limited, § Nabhikya Urja Bhavan, Epccepkecd Anushakthinagar, . 5 Mumbai-400 094 For nonien) and Surtable Phonoe..022..25993000,25993334 . pect Ref: comes Raw 1, Engineer in Charge’s decision dated 27.10.2014 vide letter no NPCIL/KKNPP/O8&M/SCE(ME)/2014/226 Sirs, We are in receipt of EIC’s decision as mentioned supra and since we are aggrieved by the same, we are hereby in terms of Clause 17.2 wish to proceed further and accordingly we are enclosing our grounds of appeal as against the decision of the Engineer in Charge. As per the terms and conditions, if the disputes are not resolved at the level of Engineer in charge, the dispute has to be referred to the Committee appointed by CMD, NPCIL, before the matter is referred to Dispute resolution board. Accordingly we are hereby referring the matter to your good self ~ CMD, NPCIL for further action - vis a- vis to form a committee to resolve the disputes in a amicable manner. We also request to give us an opportunity to come and present our case orally and effectively. We request you to do the needful at the earliest Kindly acknowledge the receipt of the same. [Managing Director] Encl: Statement of facts and grounds of appeal as against the order of the Engineer in Charge. ADC fered) — A pie } 1 EDCO- Lest) : Pl: clive ae Aqua Designs India Private Limited Phone : +9144 37171717 Foto ay ae ‘ane ret Rand, Kotor Pe Shea aiai37 Chennai = 600 088, india. mal: sales@aquadesigns in ooeTazo0zProso0a1 Web; www oquadesia Serra es oesSTATEMENT OF FACTS 1. The Appellant Company is into the business of total Water Management with engineering capabilities to undertake and execute turnkey solutions for water and waste water management since 2002. The Appellant had been granted a contract by the Nuclear Power Corporation of India Limited (Corporation) in Work Order No.800387 Dated 19t Sep 2011 to carry out the Operation and Maintenance (O&M) of the Sea Water Reverse Osmosis (SWRO) plant and STP with effect from 01.09.2011 for a period of 2 years. The Appellant had been dutifully carrying out the stipulated work ever since. The Appellant agreed to continue operation and Maintenance for a further period till 31.01.2014 on request of the corporation since the new tender for O&M period 2013 to 2015 was not finalized by the corporation. 2. Due to various disputes that had arisen, the Appellant company had written to the Engineer-In-Charge (FIC) by various letters and finally by letter dated 23.09.2014 raising its contentions. In the said letter various issues were raised including claims and other things. The EIC by his decision in NPCIL/KKNPP/O&M/SCE — (ME)/2014/226 dated 27.10.2014 has come to pass erroneous findings on the heads listed below: 3. Issue relating to Tender No: NPCIL/KKNPP/O&M/PT/306/2013 a) The corporation had floated a tender in Tender No.NPCIL/KKNPP/O&M/PT/306/2013 calling interested parties to carry out the Operation and Maintenance of the SWRO plant and STP for the period 2013 to 2015. The tender notification was published on 13.05.2013 and the pre-bid meeting was conducted on 06.06.2013. Since this Appellant was the contractor for the previous period, the Appellant had submitted its tender containing both the technical bid as well as the price bid on 19.06.2013. 2b) The technical bid was opened on 19.06.2013. After technical evaluation, it was informed that (i) M/s Tatagari Tero Technologies, (i) This Appellant and (iii) M/s Thermax Ltd were technically qualified. The price bids of the above companies including that of the Appellant were opened on 12.08.2013. The rates quoted by the respective companies upon opening of the price bid were as follows: S.No_| Company Name Price Bid Value Status T Tatagari Tero Technologies | Rs.2,23,22,104/- | L1 2 ‘Aqua Design (I) Pvt Ltd Rs.2,74,02,800/- | L2 3 ‘Thermax Ltd Rs.2,77,06,850/- [13 | ©) The corporation found later that M/s Tatagari Tero Technologies was technically unqualified as per the tender criterion which is a flaw. However during that period, the validity of the bid had lapsed on 17.10.2013. Bid validity extension was not asked for and was not extended by any of the eligible bidders. The Bank guarantee of Rs.4,45,120/- for the EMD also expired after 17.10.2013. Since the tender validity period stood expired, this Appellant did not evince further interest in the tender and had left it at that. This Appellant was continuing the O&M for the period 2011 - 2013 which was to expire on 01.09.2013. d) Since the new tender was not finalized, the corporation had requested this Appellant to extend / carry on the operations till the new tender could be finalized and an appropriate applicant selected. In good faith this Appellant had accepted the request to which the corporation had extended the earlier contract until 31.01.2014. The Appellant at the request of the Respondent continued O&M work even after 31.01.2014.e) The Appellant had been called to attend a meeting on 09.01.2014 There was no agenda specified. Since this appellant was carrying on work, this Appellant without knowing as to why the meeting was called for had deputed a representative to attend the meeting thinking the same to be a routine meeting / discussion. The representative of the Appellant had attended the meeting with an authorization letter as well as a power of attorney dated 07.01.2014. The representative had been given a confined power to only enter into a contract in the interest of the company and nothing more. However the corporation misusing its dominant power had made the representative to sign on the minutes of the meeting as if this appellant has accepted to revive the validity of the tender which lapsed 3.5 months ago and extend the bank guarantee. This appellant had never given an authorization / power to the representative to “revalidate the lapsed tender or the power to extend a lapsed bank guarantee”. The fact remains that the Bank Guarantee was never extended beyond 17.10.13 nt_pen st Invoices for the period 01.01.2014 to 20.05.2014 (Ad-hoc O&M extension period): ‘The O&M for the year 2011 - 2013 initially set to expire on 01.09.2013 was extended until 31.01.2014 on the request of the respondent till the new tender could be finalized and an appropriate tenderer selected thereupon. In good faith this appellant had also accepted to such an ad- hoc extension despite successful completion of the full tenure. Even thereafter this appellant carried on work after 01.09.2013 on the request of the respondent. After realizing that the respondent was attempting to fasten a liability on this appellant in relation to the previously explained expired tender and for other actions, this appellant stopped work on 21.05.2014. The communication on stopping work had also been informed to the EIC by various letters. Invoices bearing number 1314 KO&M 2000010 Dt:12.02.14, OAM 10021/1/14-15, OAM 10021/2/14- 15, OAM 10021/3/14-15, OAM 10021/4/14-15 dated 12.08.2014 for the ad-hoc work done by the appellant for the period commencing 401.01.2014 until 20.05.2014 were also submitted for payment of Rs: 65 Lakhs, However payments amounting to approximately Rs.65 Lakhs have still not been done by the respondent. These aspects have been ignored by the EIC and therefore the necessity to file this appeal before the concerned authority as per the conditions of contract. . Therefore this Appellant is preferring this Appeal among other grounds: Grounds . The Impugned decision is against law, erroneous and suffers from serious infirmities, violation of the principles of natural justice & unqualified understanding of the correct position of the law of contracts. . The decision of the EIC stating that the new tender for the period 2013 ~ 2015 had been accepted by the appellant is totally erroneous. . The price bid had lapsed on 17.10.2013 and there was no award of tender to any party. The Bank guarantee of Rs.4,45,120/- pertaining to the EMD for the tender had expired on 17.10.2013. The tender had been allowed to lapse. No extension of the bank guarantee was sought by the department nor was the same extended by this Appellant. The tender had been allowed to lapse by the department. The attempt of the department to saddle a lapsed tender as an accepted one on this Appellant is nothing but fraught with malafide to cover its own mistake and wrong doings. . Clause 34.1 of the tender pertaining to “Notification of award and signing of agreement” in which the relevant paras are extracted below: 34.1 The Bidder whose bid has been accepted will be notified of the award by the corporation prior to the expiration of the Bid validity period by issue of Work order. The notification may also be made through letter, wherein the work order shall follow.34.2 The Work order will constitute the formation of the contract subject only to the furnishing of a performance guarantee within 30 days of Work order. From the above, it can clearly be seen that notification of the award has to be done by the corporation PRIOR to the expiry of the Bid validity period and not after its expiry. Therefore any subsequent action by either of the parties on a lapsed tender does not amount to a legally valid contract. . The Appellant had been called for a meeting on 09.01.2014. There was no agenda specified. Since this Appellant was carrying on work, this appellant without knowing as to why the meeting was called for had attended the meeting thinking the same to be a routine meeting / discussion. The representative of the appellant had attended the meeting with an authorization letter as well as a power of attorney dated 07.01.2014. The representative had been given a confined power to only enter into a contract in the interest of the company and nothing more However the corporation misusing its dominant power had made the representative to sign on the minutes of the meeting as if this appellant has accepted to revive the validity of the lapsed tender and extend the bank guarantee. This Appellant had never given an authorization / power to the representative to “revalidate the lapsed tender or the power to extend a lapsed bank guarantee”. . The respondent ought to have seen that the act of the respondent in making the representative sign on something which was beyond his authority is hit by the Doctrine of unconscionability and such an acceptance is invalid in the eye of law. Further the appellant is not a superior party in this and it is the Respondent who is the dominating party and the appellant does not have any bargaining means whatsoever. . The fact that this appellant had not acted upon the afore said minutes of the meeting either by taking up the work or having extended the bank 6guarantee would show that the representative had no such authority to do so. . The finding of the EIC that since the L1 tenderer was disqualified by reason of technical qualification, the tender was allotted to this appellant who was the L2 bidder. This position would have been correct only if the said confirmation was done during the validity period of the tender period (on or before 17.10.2013) and not after its lapse. The tender had expired on 17.10.2013 and the EMD had expired on 17.10.2013. The Corporation claims to have confirmed the tender to this appellant in a meeting at its office on 07.01.2014 after a period of 3 and 1/2 months from the lapse of the tender itself. This is an utter violation of the Transparency in Tender transparency Act. Even assuming but not admitting that the action of the representative of the appellant company in signing the letter, this does not create valid acceptance of an already lapsed tender. It is settled law of contracts and tender norms that no subsequent action can revive a contract which has already lapsed / expired. The proper recourse of the authority is to have called for a fresh tender, invited bids and selected a bidder thereon. . The Corporation has erred in relying on an acceptance said to have been done by the appellant’s representative during a meeting held on 07.01.2014. There had been no communication / letter from the Corporation asking this Appellant to attend a meeting that is being called to discuss about the expired tender. The representative had neither the power to negotiate or revalidate the bid validity of the new tender. The representative had attended the meeting honoring the request of the Corporation without knowing the agenda of the meeting assuming the same to be a discussion. The action of the Corporation in getting the signature of the representative who had no powers of authorization to revalidate an expired tender is nothing but erroneous and flawed. A perusal would show that the signature has been obtained on a minutes of the meeting sheet which states that the validity of the expired bid has been extended retrospectively. This is further flawed as atender that has already expired by efflux of time and inaction cannot be revived by one subsequent event. 10.The EIC ought to have seen that the price bid of this Appellant (L2) was quoted at Rs. Rs.2,74,02,800/- which is approximately 50 Lakhs more than the L1 bidder. Assuming that the contract was said to have been awarded to this appellant, the price quoted by this appellant ought to have been awarded as quoted. The Corporation time and again relies on the signature of the appellant’s representative that the price was accepted to be lowered to that of the L1 bidder which is Rs.2,23,22,104/- is totally unbelievable and false chiefly because the tender validity expired long back in the month of October 2013 itself. 11.The Bank guarantee for the EMD did not exist on 09.01.2014 as the same which had an expiry date of 17.10.2013 had already lapsed and been cancelled. The Bank guarantee clearly states as follows ‘Our guarantee shall remain in force until 17.10.2013. Unless a demand or claim under the guarantee is made on our bank in writing on or before 17.10.2013, all your rights under the said guarantee be forfeited and we shall be relieved and discharged from alll liabilities thereunder’. When such is the case, there is not even a remote possibility to perform an act which cannot be done. 12.The Letter of Intent (LOI) in ref No.NPCIL/KKNPP/CTC/2014/S/160 dated 27.01.2014 & the Work Order in ref No. NPCIL/KKNPP/CTC/2014/S/368 dated 20.02.2014 issued in pursuance to the Minutes of the meeting dated 09.01.2014 is not legally valid as the same have been issued in relation to an expired tender which was not supported by any EMD / bank guarantee. An LOI and a work order are issued in pursuance to a tender called for, bidder selected and procedures duly complied with as required under the clauses of the ‘Transparency in Tender Act. In this case however, the LOI and the work order have been issued without calling for a 2» tender after the 1% process having failed which is completely against the act and public policy.13.The respondent ought to have seen that this appellant by letter dated 31.03.2014, 01.04.2014, 09.04.2014 and other further letters refused to accept the suo moto work order dated 20.02.2014 on the reasons explained supra. Further, during the ad-hoc O&M period, the employees who were engaged by this appellant on the recommendation of the corporation staff from the local villages had resorted to manhandling of this appellant's staff at the work site. Even upon communication of the incident to the corporation, the corporation had not taken any action but brushed aside the issue stating that the same was an HR issue of this appellant. Even after filing an FIR, the police have not taken any action till date which led to this appellant stopping work on the ad-hoc period. The respondent has erroneously cited that the General conditions of Contract (GCC) were applicable to labor issues, ete which is a complete misnomer. When the tender itself is not applicable and not accepted by this appellant, the application of the tender conditions does not arise. 14.The respondent has refused to pay the invoices of this appellant stating that the invoices do not conform to the rates, order no, etc mentioned in the work order dated 20.02.2014 which is erroneous. The work order dated 20.02.2014 was never accepted by this appellant nor was any work carried out in pursuance of the same. This appellant has raised invoices for the period of work carried on during the ad-hoc period of the 2011 ~ 2013 contract. 15.The EIC ought to have further seen that for any contract to be valid, the parties have to have the same understanding of the terms of the agreement. That such mutual comprehension or ad-idem is essential to a valid contract. In this case, the respondent has clandestinely been trying to fasten the appellant with a liability of an expired tender. There has never been a meeting of the minds nor valid consent given ever since the lapse of the tender.Prayer: For the averments pleaded in the facts and grounds referred to above, the Appellant therefore seeks the following reliefs: a. That the order of _~—the_-—‘«Engineer-In-Charge in NPICL/KKNPP/O&M/SCE (ME)/2014/226 dated 27.10.2014 to be set aside and the Appeal may be allowed. b. That the sum of Rs.60,019,012 (Sixty Lakhs Nineteen Thousand and Twelve Only) pending against invoices, Service Tax Reimbursement, Security Deposit and EMD for the work actually done be released by the Corporation. Invoice details are as given below in the Annexure. Date: 2éfi2ls : tna Place: CAenn@ Signature of the Appellant 10