TECHNICAL / CONTRACTUAL POINTS FOR REJOINDER OF CASE NO.

23 OF
2018 OF M/S P.DAS & COMPANY

Claim No: 4 Compensation against excess expenditure incurred due to receipt of

cement of grade inferior to what was stipulated in the tender. The claim amount: RS
85, 53,463.00/-

A. FACTS OF CLAIM:

The claimant submits that B.O.Q. of the tender had provision for 2 (two) grades of
concrete i.e., M-15 and M-20. Rates for these two grades of concrete were quoted
by the claimants in their bid. The technical specification of the concrete under
Cl.7.1.0 of Module –IV, Technical specification, Vol-II had indicated consumption
pattern of cements ranging between 170kg and 550kg per cum for M-7.5, M-10, M-
15, M-20 and M-30 grade of concrete even though only M-15 and M-20 grade
concrete were provided in the BOQ. The Claimants submit that it has been specified,
under Cl.6.1.0 of Module -3 that cement to be issued for use be 53/43 grade
Ordinary Portland Cement. It had also been mentioned that Portland pozzolona
cement may be permitted.

B. DISPUTE:

The claimants submit that although 43/53 grade O.P.C was specified in the technical
specification of the Tender to be used in the concrete, the Respondents issued only
33 grade O.P.C to the claimant, for the work.

The claimant submits that after the award of work, they started to prepare trial
mixes for different grades of concrete to determine the most economic and workable
mixes. However, the results of the suitable trial mixes prepared with the 33 grade
O.P.C issued by the Respondents showed consumption of cement much more than
what a concrete for the same strength with 43/53 grade cement would require and
which was actually a prime factor in working out the rates of different grade of
concrete of the claimants.

The claimants submit that mix design is a process of selecting suitable ingredients of
concrete and determining their relative properties so as to produce concrete of best
possible strength and durability within most economical cost.

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The claimants submit that all these had caused the claimants to incur heavy extra
expenditure not contemplated by them while framing the rates. They therefore
submitted a claim of Rs. 85,53,463.00/- as compensation towards cost of excess
cement and of super plasticiser that had to be used by them because of failure on
the part of the Respondents to issue cement as per tender stipulation.

THE IMPUGNED JUDGMENT

The finding of Court, the impugned award of para 8.4 states” … petitioner
corporation was required to issue grade 53/43 of grade cement as per clause 6.1.0
of module - 3, Vol-II (Technical specification) which they did not and instead they
issued 33 grade of cement which resulted in excess consumption of cement by the
claimant to attend the same strength of concrete for the loss suffered the claim was
allowed”.

The Impugned Judgment essentially alters and rewrites the contract, which is
impermissible as per settled law. The impugn award favoured the contractor and
misrepresented the facts, essentially, this observation by Ld. Judge’s in the
impugned Judgment is much like the findings in the arbitral award by the
Arbitrators. Further, the Claimant nowhere/ never used High strength concrete
conforming to IS: 8112 (i.e., OPC 43 Grade cement) and IS: 12269 (i.e., OPC 53
Grade cement), which ranges from M60 to M80, though the provisions were
incorporated in the contract to meet any contingencies if that would have arisen.

Therefore, the contention of Claimant regarding issuing of inferior grade of cement

by the Respondent was totally baseless and specious as no High grade concrete
was ever used by Claimant for concreting works. Moreover, the Contract/
Respondent never instructed Claimant to use very High strength concrete apart from
use of ordinary concrete grade of M-15 and M-20, so issue of 53/43 grade of
cement by Respondent does not arise at all.

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THE STATEMENT OF DEFENCE

The Statement of Defence of the herein denied the contentions in the Statement of
Claim and the impugned award, and attributed breach to the Claimant. The following
provisions of contract further supports the arguments of the Respondents:

Cl. No: 6.1.0 of Module-3, Technical specification, Vol-II:

“Cement shall be ordinary Portland cement, 53/43 grade conforming to

IS: 269. The Engineer-in-charge may permit the use of Portland pozzolana
cement conforming to IS: 455. However, OPC, PPC and PSC should never
be mixed. High grade (strength) ordinary cement conforming to IS:
8112 and IS: 12269 shall be used only for producing very high
grade concrete. The contractor should ensure while taking delivery that
the quality, quantity and freshness of cement are upto the specified
standards. No complaint later regarding the quality of cement supplied
by the NEEPCO shall be entertained”.

The above clause of contract unequivocally stated that the cement to be used for
concreting works shall be of ordinary Portland cement of OPC 33 Grade of
specification conforms to IS: 269, OPC 43 Grade of Specification conforms to IS:
8112 and OPC 53 Grade of specification conform to IS: 12269. The contract
further stipulates the use of very high grade cement, conforming to IS: 8112 (i.e.,
OPC 43 Grade cement) and IS: 12269 (i.e., OPC 53 Grade cement) for
producing very high grade cement concrete. Though the provision of high

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grade cement was stipulated in the contract agreement but the Claimant never used
high grade cement for the construction works and issuing of 53/43 grade cement by
Respondent did not arise.

Further, the IS: 456 categorically stated the grade of concrete i.e., the ordinary
concrete ranging from M10 to M20, Standard concrete ranging from M25 to M55
and High strength concrete ranging from M60 to M80 detail is annexed in
Annexure-I.

BOQ Item No. 8,

“Supplying and laying design mix cement concrete (PCC or RCC) at all
levels and all places as specified/ shown in drawings including blockouts
etc., for any kind of works, …… complete in all respect as per
specification”.

(a) M-20

(b) M-20 (2nd stage)

(c) M-15

As per the above BOQ item No.8, the maximum M-20 grade of concrete to be used
by the Claimant for construction works, which was an ordinary concrete as per IS:
456 and do not come under High grade concrete. It is reiterated that the contract is
very much specific and unequivocal regarding use of OPC 33 Grade conforming to
IS: 269, for production of ordinary concrete of M-20 grade.

Further, as per Clause: 7.1.0 of Module – 4, Technical specification, Vol-II, The

bidder had priced his bid for grade of concrete ranging from M-7.5 to M-30, that
comes under ordinary and standard concrete grade. The Claimant nowhere/ never
used High strength concrete that ranges from M60 to M80, though the
provision were incorporated in the contract to meet any contingencies if that would
have arisen.

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The contention of Claimant regarding issuing of inferior grade of cement by the

Respondent i.e., OPC 33 grade was totally baseless and specious as no High grade
concrete was ever used by Claimant for concreting work. Moreover, the
Respondent never approved and instructed Claimant to use very High strength
concrete apart from use of ordinary concrete grade (i.e., M-15 and M-20 grade).
Further, in this regard trial mixes /design mixes were done for only M-15 and M-20
grade same was approved by Respondent.

The Ld. Judge’s rationale and Arbitrator’s impugned award that “petitioner
corporation was required to issue grade 53/43 of grade cement as per clause 6.1.0
of module - 3, Vol-II (Technical specification) which they did not and instead they
issued 33 grade of cement which resulted in excess consumption of cement by the
claimant to attend the same strength of concrete for the loss suffered the claim was
allowed”.

The impugned award and finding of the court directly vitiated the stipulations of the
contract agreement between the parties, while awarding the judgement. The award
was based on mala fide/ mischievous and false statements of Claimant. The
contractors claim is merely a concoction, fabrication and highly speculative, which
goes clearly against the provisions stipulated in the contract agreement.

Further, as per GTC Vol-I, Section-K, Memorandum of materials states Cement of

Bag of 50kg @ Rs. 175/- issued from Corporation store at project site subject to the
following conditions,

(e) CEMENT:

i. Cement will be issued to the contractor in bags as received from the

suppliers or by weight at the rate specified above and will be consumed
in work as per mixed designed approved by the Engineer-in-
Charge.
…….”.

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As per the above stipulation of contract agreement the mix designs shall be
approved by the Engineer-in-Charge. In order to approve different mix designs of
concrete by Corporation, different trial mix samples were required to be tested in
terms of weight of cement, coarse & fine aggregate. The concrete design mix of
grade M-20 (i.e., 20 N/mm2) and M-15 (i.e., 15 N/mm2) represents the
compressive strength of 150mm size cube of concrete block after 28 days of casting.

The Claimant was asked by Respondent to submit the cement requirements against
various grades of concrete as per trial mixes, Claimant performed only trial mix
design of M-15 and M-20 by using OPC 33 Grade of specification conforms to IS:
269, for ordinary concrete of M-15 and M-20 grades as per the provision in the
BOQ / scheduled rate.

Cl. No: 4.1.0 of Module-4, Technical specification for Cast-in-situ concrete, Vol-II:

(i) “…the contractor will start the testing of materials, propose the
composition of concrete mixes and prepare trial mix of each of the
proposed concrete class. The contractor will prepare the trial mixes
using the cement, water, aggregates and admixtures intended for the
work…..”

(iii)”…These tests will be carried out until the concrete mixes show
appropriate strength…….without the use of excessive cement”.

(v)” …The mixes for different grades of concrete will be selected by

the Engineer-in-charge and conveyed to the Contractor”.

(vi)” …During the progress of the work, the mixes may be changed
whenever, in the opinion of the Engineer-in-charge….”.

The above contract clauses unequivocally instruct contractor to prepare the trial
mixes of proposed concrete classes. The different grades of concrete will be selected
by the Engineer-in-charge only and the design mixes may be changed as per his
opinion. The Engineer-in-charge decision in this regard will be final & binding to the
contractor.

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The claimant never done the trial mixes using different grade of cement, infact
claimant only prepared trial mixes with 33 grade cement of ordinary concrete of M-
15 and M-20 as per site requirement and same was approved by the Corporation.

Clause: 7.1.0 of Module – 4, Technical specification, Vol-II:

“The bidder shall price his bid on the basis of the following cement
contents for various grades of concrete.

Grade of concrete Cement content (Kg per Cubic metre)

M-7.5 170

M-10 230

M-15 300

M-20 400

M-25 550

M-30 700

As per the above clause, the cement contains per cubic meter for M-15 grade of
concrete is 300Kg (i.e., 6 bags) of cement and the cement contain per cubic meter
for M-20 grade of concrete is 400Kg (i.e., 8 bags). Further, according to the
approved mix design, the actual cement contains for M-20 Grade of concrete was
only 320 Kg per cubic meter i.e., 6.4 bags of cement, which is 80 Kg (i.e.,1.6 bags)
less than the stipulated cement content in the contract and which was less than the
basis of price bidding of bidder.

Clause 24.7.0 (ii), Clause 24.8.0 (i) of Module- IV, Vol.-II Technical Specification,
Vol-II:

(i) The Unit Rates for various grades of concrete shall include the cost of
the cement contents specified therein.

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(ii) The difference in the cement contents of the original mix (es) on
which the bid has been priced and the mix (es) finalised after trial mix
stage may take place. However, no separate payment will be made to
the Contractor for such difference in the cement contents.

As per the above clause, the contract unequivocally states there may be difference
in the cement contents original mix and the final design mix and that no separate
payment will be entertained by the Respondent on account of difference in the
cement contents.

Further, the contention of the claimant that the BOQ item No.8 has become unviable
since there was excess consumption of cement is totally misleading. Once the rate
had been fixed in the contract for a particular concrete work, the claimant was not
entitled to claim additional amount merely because of some difference in the cement
contents between trial mix / mix design and the cement contents of the original
mixes on which the bid has been priced.

Therefore, given such specific stipulations in the Contract, there can be no claim on
this account. The Ld. Judge’s rationale and Arbitrator has thus acted with material
irregularity in having ignored express provisions of the contract which renders the
award bad as being contrary to public policy.

The award is totally misleading and perverse, which is far away from the actual facts
and it seems that Hon’ble court has succumb to the misrepresentation of technical
facts regarding 53/43 grade of cement that required only for production of very High
grade of cement concrete (i.e., M60 to M80), which the claimant never used for
construction works.

Moreover, if the award goes beyond the reference or there are technical errors
apparent on the face of the award it would certainly be open to the Hon’ble court to
interfere with such an award. The Ld. Judge’s rationale and Arbitrator’s award ought
to be set aside as a whole for compensation against excess expenditure incurred due
to receipt of cement of grade inferior to what was stipulated in the tender.