Continental Construction Ltd. Vs. Tehri Hydro Development Corporation Ltd.
& Anr  Insc 377 (5 September 2002)
Babu & P. Venkatarama Reddi. Rajendra Babu, J. :
petition is directed against an order made by the High Court of Delhi in a writ
petition wherein the petitioner prayed for quashing the decision of the first
respondent that the second respondent has the pre- qualification for the
construction of Koteshwar Dam Spillway and Power House Civil work of Koteshwar
Hydro Electric Project pursuant to the tender specification No. THDC/RKSH/CD/197/PQ/99.
The pre- qualification document under clause 10.2 provided as follows :-
"10.2. The minimum pre-qualification criteria for the work of construction
of "Koteshwar Dam, Spillway & Power House Works" would be as under
The bidder should have minimum annual turnover of Rs. 50 crores in anyone of
the last five years.
The bidder should have successfully completed the construction of at least one
concrete dam/barrage involving placement of minimum 2.5 lac cubic meters of all
grades of concrete against a single contract in a Hydro Electric/Irrigation
Project." [Only relevant part extracted] The challenge to the
pre-qualification of the second respondent was met by the first respondent on
the following basis :-
"Amongst the 7 parties, recommended to be pre- qualified for the subject
work, one of the parties recommended was M/s Progressive Construction Limited,
in Joint Venture with the Consortium of Intertech :Lenhydro, Russia (named as
respondent no. 2 in the writ petition). In the Pre-qualification bid documents
submitted by M/s Progressive Construction Limited in Joint Venture with the
Consortium of Intertect Lenhydro, Russia the party had, inter-alia, provided
Memorandum of Understanding (MOU), purporting to be an agreement between M/s
Progressive Construction Limited, with its Head Officer at Hyderabad (India)
and the Consortium of Intertech Service (Head office at Saint Petersberg,
Russia) and Institute Lenhydro Project, (Head Office at Saint Petersberg,
Russia), formed to submit the pre-qualification bids to the THDC in response to
the subject tender. The MOU had described the Intertech Lenhydro Consortium
having experience, skill and specialized experience in construction of dams,
underground tunnels, ports etc.
the said MOU had laid down the detailed obligations, responsibilities and
working arrangements for submission of bids and undertaking the subject works
in the event, the contract was awarded to the Joint Venture.
the documents, the Joint Venture had also provided details concerning
experience and financial status of all the respective Joint Venture partners.
per information provided by the Joint Venture of Progressive Construction
Limited and Consortium of Intertech Services: Institute Lenhydro Project, it
was disclosed that M/s Progressive Construction Limited would be the Joint
Venture lead partner. It was further indicated in the submitted documents that
Institute Lenhydro Project, one of the Joint Venture partners, had successfully
completed Bureya Hydroelectric Project on Bureya River, Far East of Russia, which was a
140 m. high concrete dam. It was further stated that this massive gravity dam
contains 3.5 million cum. Concrete about 30% of which being dry RCC which is
placed into downstream part of the dam. This experience detail was supported by
an Affidavit dated July
31, 1999, signed for
and on behalf of Institute Lenhydro Project, by their Chief Engineer and authorised
signatory declaring that Institute Lenhydro Project had executed the Bureya
Hydroelectric Project, as per details given in the foregoing. It was also
indicated in the affidavit that the work was done for Government of Russia.
answering respondent vide letter no THDC/RKSH/CD-197/2607 dated 18.11.99
intimated to Progressive Construction Limited who were disclosed to be the
leader of Joint Venture, that the claim of meeting the PQ requirements of
having completed construction of Dam involving 2.5 lac cum concrete based on
the credential of their Joint Venture partner, Lenhydro Project, had been laid
on the self certification made by Lenhydro Project to the effect that they have
placed 3.5 million cum concrete in Bureya HEP. Similarly, the claim of having
achieved more than 20,000 cum concrete placement in a single month was also
laid on self certification through an affidavit furnished by Institute Lenhydro
Project. They were required vide this communication dated 18.11.99 to arrange
to furnish a certificate in support of meeting the above PQ requirements.
response to this, Progressive Construction Ltd. vide their letter dated
24.11.99 addressed to Sr. Manager (Contracts) furnished the certificate issued
by Bureya HPP, an open joint stock company "UES of Russia" under
Ministry of Fuel and Power Engineering of Russia. While forwarding the said
certificate by Bureya HEP, it was intimated by Progressive Construction Ltd.
that the certificate was in support of the successful completion of the Project
as well as also the total quantities of concrete/peak month quantity of
concrete executed by their Joint Venture partners M/s Lenhydro Project. The
original letter of confirmation issued by the joint stock company Bureya HPP
under Ministry of Fuel & Power Engineering of Russia was later forwarded by
Progressive Construction Ltd. vide letter No. PCL/ND/Koteshwar/2206 dated
29.11.99 by their letter also it was intimated that the said letter of
confirmation certifies total works of concreting having been done by their
Joint Venture partners M/s Lenhydro Project for Bureya HPP in Russia.
Standing Committee on pre-qualification, on detailed examination of bids
submitted by various parties, had noted in regard to PCL-Intertech : Lenhydro
Consortium based on information/documents furnished by them, that the annual
turnover of M/s Progressive during the year 1998-99 has been Rs. 158.11 crores.
The joint venture partners, M/s Institute Lenhydro Project, Russia have successfully completed 140 M.
high concrete gravity dam on Bureya river for Bureya Hydroelectric Project, Russia involving 35 Lac cum of concrete
placement. The peak rate of concrete placed by the party in a single month on
this project was more than the required rat eof 20,000 cum. It was also noted
that M/s Progressive achieved a monthly rate of 2,50,307 cum for earth and rock
excavation in the month of June, 1994 for Srisailam Right bank Canal work. M/s Institute Lenhydro Project, having worked on Bureya
HEP, Russia, have adequate experience in
Reinforced Cement Concrete Technology. Based on the information provided, and
documents submitted by this Joint Venture in response to the pre-qualification
tenders, the Standing Committee recommended pre-qualification of PCL-Intertech
Consortium Joint Venture. It was intimated to the applicant that since the
pre-qualifying requirements relating to concreting were being met by the
consortium of Intertech : Lenhydro Project, Intertech : Lenhydro Consortium
needs to be nominated as the leader of the Joint Venture. This was accepted and
confirmed by the applicant vide letter No. PCL/ND/THDC/2000/2275 dated 22nd May, 2000.
Based on the recommendations of the Standing Committee, the answering
respondent, THDC, pre- qualified seven parties in June, 2001, including the Joint
Venture of M/s Progressive Construction Limited and Consortium of Intertech-Lenhydro,
Russia, for submission of bids for the
civil construction works of Koteshwar Hydroelectric Project." In view of
these pleadings, the High Court held that "on consideration of the rival
submissions and pleading on record, it is abundantly clear that respondent No.
2 is fully qualified and eligible to carry out the contract" and the writ
petitioner did not, before the bids were opened, raise any objection regarding
the experience and financial capacity of respondent No. 2. The High Court,
therefore, dismissed the writ petition filed by the writ petitioner.
this case the respondents had entered caveats. We asked them, even at the stage
of preliminary hearing before issuing notice, to address the arguments on the
merits of the matter. Having heard the parties in the case, we have passed this
writ petition filed before the High Court the petitioner contended (i) that one
of the constituents of the second respondent Lenhydro Project is not a company
engaged in actual physical execution/construction of works; rather, it was only
a design firm; (ii) the Intertech Services is not a Construction Company
engaged/having experience in actual execution/construction of concrete Dam,
Spillway and Power House Works; (iii) The statement made by the authorised
signatory of the Lenhydro Project that the said constituent has executed the Bureya
Hydro-electric Project, far east Russia is not correct as in fact the said
project has been built by JSC Buguchangesstroy as turn key contractor.
support of this contention, the learned counsel for petitioner relied upon a
letter issued by the SHC Institute Hydro Projects and letter dated May 25, 2002
by the Chamber of Commerce and Industry of the Russian Federation which stated
that "LENGIBROPROYEKT" is a specialized design engineering company in
the field of hydro-electric projects where it enjoys good standing as a design
firm. This firm does not involve itself in executing projects nor is it known
to associate or act as a turn-key contractor"; that letter dated
22.11.1999 [Annexure P/12] issued by the Bureya Hydro Power Project is
ambiguous inasmuch as it only refers to successful completion of the contract
by the Russian constituent of the second respondent without any details
thereto; that the Bureya Hydro Power Project on Bureya River was, in fact,
constructed by Boguchangesstroy as a turn-key contractor as per the information
obtained from the Reference list of the Project built by the JSC Boguchangesstroy
for the years 1997-2000. It is also contended that during the period from 1993
to 1997 the "Lenhydroproject" merely got executed construction work
project at the Bureya Hydro Power Station even as per certificate dated 15th July,
2002 issued by the Chief Engineer of the Parent Company of the Russian
Constituent of the 2nd respondent. On this basis it is contended that the
second respondent had not placed any satisfactory material to show that it had
necessary experience as required under the pre-qualification documents.
letters issued by the SHC Institute Hydro Projects and the Chamber of Commerce
and Industry of the Russian Federation do not specifically deal with whether
the 2nd respondent had in fact executed the construction work of Bureya
Hydro-Power Station project but makes general reference. The Reference List
obtained from the Internet gives information from 1997 onwards and not for the
earlier period. Therefore, these three documents are not helpful to the
petitioner. The stand of the respondents is that Bureya Hydro-Power Station
project is a multi-stage project; that during period 1993-1997, the Russian
Constituent of the 2nd respondent was entrusted with the construction,
technical support and quality control of Bureya Hydro-Power Station project and
they were providing construction machinery, material, manpower etc. during the
execution of works. Certificate issued on 1.8.2002 in this regard by the parent
company is made available by the 2nd respondent. Another certificate dated June
11, 2002 was relied upon along with the letter dated 22.11.1999 issued in this
regard. Next stage of project from 1998 onwards was executed by a
sub-contractor JSC Boguchangesstroy and Boguchangesstroy had not figured for
the earlier period prior to 1998.
project has nothing to do with the earlier project. The clear stand of the
respondents on the basis of these documents is that apart from general
designing work they were also engaged in actual construction of the project. If
upon the material made available to the 1st respondent by the 2nd respondent
its pre-qualification has been decided, the High Court is justified in not
interfering under Article 226 of the Constitution.
light of this position, we find no merit in this petition and the same stands
dismissed. No costs.