considered this clause, it seems that prima facie the possibility of the contractor being paid less than the agreed amount in an arbitrary manner by OP-1 by virtue of this clause cannot be ruled out. Though OPs have explained that the payment being made as per HSR+CP rates or on the basis of L-2, L-3 rates would only be in case of interim bills, but a plain reading of the clause indicates that the clause is applicable to final bills also. Another argument that OPs have made is that the clause is not unfair as the Informant had knowledge of this condition at the time of submitting the bid. In this regard, it is pertinent to note that both Informant as well as OP-1 have submitted that often HSR+CP rates turned out to be the lowest thereby becoming the criterion for payment to the contractor. In such a scenario, if the applicable HSR+CP rates were not known to bidders at the time of submitting the bid, then the bidders would not be in position to calculate the amount payable to them as per this condition. Accordingly, during hearing OPs were specifically asked whether the HSR+CP rates applicable to the bidders such as Informant were known to them by virtue of same having been communicated or displayed on the website, but this was neither clarified during hearing nor any reply was received subsequently. Further, it is noted that L-2, L-3 rates can in any case not be known prior to submission of the bid. Accordingly, it appears that even though the Informant may have been aware of the clause but the implications of the clause could not have been ascertained by the Informant at the time of submission of the bid. All the more when the design and drawings in respect of the project can be changed mid-way, how the successful bidder can be paid on the basis of L-2, L-3 or HSR rates against his quoted rates. Thus, the Commission is of the view that prima facie this clause provides scope for arbitrariness and the actual conduct of OP-1 with respect to this clause requires investigation.
