Core Exclusive by Rajib Maitra

Oh what an Ash! 

The disposal of ash generated by the thermal power plants is a contentious issue around the world. An issuethat has come into sharper focus in response to the increasing awareness about pollution and the need to embrace cleanergreener technologies. While world overnewer and more efficient means are being used to handle this ashthe Damodar Valley Corporation (DVC) is seemingly digging its own grave in the ash reports Rajib Moitra.

52 lakh cubic meter. Yesthat is roughly the amount of ash that DVC is supposed to move annually from its various power plants. Ashthat they are supposed to movefrom the various ash ponds to the nearest abandoned mines of Coal India Limited following what the legalese says“nuisance –free transportation”. The point to be noted here is that this ash has to be transported through densely populated areas and requires a special kind of expertise to ensure the least contamination of the environment not only during the loading and unloadingbut also during the actual transportation. The material has to be properly covered and adequately sprinkled to ensure the least amount of sip page causing environmental degradation.

Naturally all this is expected to be contracted out to “competent” contractors through a process of tendering. Prod a little and the skeletons comes tumbling out of the cupboard. Let’s take one case at a time:
Bokaro Thermal Power Station:

The BTPS initiated the tendering process on 21/01/2010. Quantity: 16 lakh cubic meter per annumextendable by one more year. Estimated value of contract over Rs 19 crores (plus another Rs 19 crores in case of extensionwhich is normal).

One BKB Transport was found to have been the lowest bidder (L1) and should have received the order under normal circumstances. Yetfor reasons best known to itDVC cancelled the tender vide its letter no BT/B (O&M) PH ©/TR/ 314 dated 30/8/2010. Citing victimizationBKB moved the Calcutta High Court (WP No. 18884 (W) of 2010) where it could not obtain a stay in the single bench and appealed before the Division bench comprising of Hon. Justice B Bhattacharrya and Hon. Justice Dr. S Chakravorty (AST 607 of 2010 dated 4/10/2010) where they obtained a stay order which directed that – work order cannot be issued till the dismissal of the case.

Undaunted by the Court Order DVC went in for re-tendering adding a new twist to the sordid saga. DVCfor the uninitiatedhas two tender committees – one at the plant level and at the other in the HQ at the director level. The new tenderinitiated at the director levelchanged the rules of the game by invoking Post Relaxation and allowing even Joint Venture parties and those with experience of Over Burden (OB) removalwhere earlier only contractors with past experience of ash handlingthat too with “nuisance-free transportation” were only eligible. What is moreit also allowed the opening of price bids of those with faults in the technical part. Skeptics point out that the Chief Vigilance Officer (CVO) was involved to push the process with total disregard to and in clear contravention of the CVC Rules.

Again BKB moved the HC against Post Relaxation on 11/05/2011 (AST no 190 of 2011). This time aroundon the first hearing itselfthe Hon. Court instructed DVC to file affidavit. 

The curious fact here is that DVC’s own plant level 1 committee had already intimated about the inherent faults in the credential of various parties which was overlooked and sought to be forced through by involving the CVO.

The 2nd hearing on 20/05/2011 was as per expected route and the Hon. Court allowed the tender process to continue but no work order to be issued.

As we prepare to go to the presson 25/5/2011 another aggrieved partyPLR Projects Pvt. Ltd of Hyderabad has approached the Hon. High Court for justiceciting the same grounds.

 

DTPS
Tendering process was initiated on 1/10/2010 for the removal of 750000 cubic meter per annum at estimated value over Rs 12.30 crores to be extendable by one year that is15 lakh cum over two years involving about Rs 25 crores.

Here the case takes a quirky turn. Dr Manash BhuiyanLeader of Congress Legislature partyWest Bengal Legislative Assembly wrote a letter to DVCrequesting the enhancement of the eligibility criterion. DVC’s response was emphatic “… any change in the tendering process at this stage may lead to serious legal implication and the aggrieved parties may take legal action against DVC and may obtain stay order to stop the tendering process leading to stoppage of evacuation and transportation of work.” (no. Sect/co-ord/VIP/10/vol.20/681 dated June 28th 2010.)

In a similar course of eventsCISC another aggrieved partychallenged the QR (WP no 21790 /10) raising a valuable point – Why did DVC change the QR based on the letter of a contractorwhen they had earlier informed Dr. Manas Bhuiyan about their inability?

The 1st hearing was held on 11/Nov/2010 before Justice Jayanta Biswas. Court ordered – tender process to continue but work order cannot be issued till the completion of the case.

DVC retendered with post relaxation with JV and OB added. Same relaxations were incorporated about technical bid faults. Ambe Mining moved high court (ast 80/2011 on 6/05/2011). In the very 1st hearingthey secured a virtual stay order – DVC restrained till further hearing. 20/05/2011 – Justice Jayanta Biswasallowed Ambe Mining to take part in the tender. The Pandora’s Box was opened and other contractors were in fact encouraged to move court.

Mejhia –mtps 

Similar is the case of Mejhia. Tender appeared on 18/09/2010 for the removal of 15 lakh cu meter per annum extendable by one year– amount Rs 34 crs. Extendable to about Rs 68 crs.).
Here too the QR was changed. CISC went to the HC on 21/10/2010 (AST 925/2010).Seeking justice against the change in the QR. BKB also moved court (AST 1153/2010) at vacation bench. Same ruling. Again post relaxation. JV and OB added.BKB again moved court challenging the post relaxation on 10/05/2011 (AST 186/11). Second hearing was held on 20/5/2011 resulting in the same order being passed.
 

Chandrapura CTPS

Tender appeared on 14/09/2010 – 13.1 lakh cum amounting to Rs 19 crores extendable by one yearie.Rs 38 crores. A similar tender was called in which Naveen and RK Transport were the L1 bidders. This too was cancelled. Naturally Naveen and RK moved the Calcutta High Court separately (AST 921AST 923 / 10). Similar order was granted here too. 

Now the Questions. 

Why can’t DVC have a coherent tendering policywhich is capable of meeting its needs? Why temper with the tendering processthat tooby flouting important provisions? Post relaxation is not done by any of DVC’s peers like CILNTPCPDCL etc. Then why is DVC venturing into territories where angels fear to tread?
The DVC manual (as amended in 2009) on page 21 clearly specifies that any change in the NIT has to be incorporated in the pre bid meeting only. Once tender is floatedno change is permitted. Were the powers that be in DVC not aware of this? Or were other factors at play that compelled the total disregard of the writs?
Sources close to the management in DVC pointed out their desperation to keep the wheels of ash clearing moving explaining that overburden removers and those with Joint Venture qualification were sought to be included with a view towards having more parties to do the job. But skeptics scoff at their lame defense by pointing out that had it been the true casesuch parties would have been included in the first placeand not surreptitiously by the back gate. They also point outthat had intentions were as honest as is being made out to be nowsuch parties would have been included when Dr. Manash Bhuiyan had repeatedly argued their casealbeit to deaf ears.

The ham handed manner in which the entire sordid saga has been allowed to unfold point at either the total lack of legal knowledge or the complete disregard to the law with a devil may care attitude on part of the DVC management. As one lawyer put itDVC has on its own calling opened itself for legal scrutiny and has given virtually all the concerned parties a chance to sue itself.

But in the muck that is flowing in the air is clouding one important concern – with its ash ponds full to the brim and no other place to dump its wastehow will DVC continue with its generation? Gone are the days when the ash could just be released in the atmosphere with scant regard to the people or pollution – todayit has to be adequately transported to safety. Will this not force DVC to a standstill? Whose fault is it anyway? Who is going to pay for the consequencesin such a scenario? Watch this space.