(1988)1988September, 24 [MALACHTOS, J.] INTHEMATTEROFARTICLE 146OFTHECONSTITUTION SATURN BUILDINGCO. LTD., Applicant, v. THESEWAGEBOARDOFNICOSIA, Respondent. (CaseNo.521/86). Timewithin which tofilea recoursefor annulment—Tenders—Letter dated 245.86informing applicantthatitstenderwascontrarytolaw—Letterdated18.6.86informing applicant that the tender wasawardedto somebody else—Recoursefiledon21.8.86—Outoftime. Wordsandphrases:"Total valueoftheworks" intheFirst Schedule to the BuildingContractors( RegistrationandControl)Law, 1973(Law97/73), asamendedbyLaw
- Theapplicantcompanywasatallmaterialtimesacontractorregistered intheFourth Scheduleinaccordancewith section9of theaforesaid law. Consequently, the applicant could undertake works not exceeding £152,
- Theapplicant submittedatendertotherespondentsfor installationof sanitary sewage.Theamountofthetenderwas£119,295.60,excludingthe valueofthepipes(£37,200). Byletterdated24.5.86respondentsinformed counselforapplicantthat thetenderwascontrary totheaforesaid law.Byletterdated 18.6.86theapplicantwasinformed ofthedecisiontoaward thelendertosomebodyelse. Thisrecoursewasfiledon21.8.
- Held,dismissingtherecourse:
(1)Therecourseisoutoftimeashaving beenfiledafter theexpirationof75 daysfrom thedaywhentheapplicant 1794 3'C.L.R.· ' -Saturn Building Co. v.' Sewage Board N'sia acquiredknowledgethatitstendercouldnotbeaccepted. ·.'*»*' ' · ;if; 5 in • i' " . · • l · '.- • '• ' '•
(2)Theexpression "totalvalueoftheworks"intheFirstScheduleto , Law32/82,asitisworded,shouldmean"ThetotalamountwhichisrequiredfortheconstructionOftheprojectasawhole",whichincludesthe ' valueofall'thematerialsandfixturesaswellaslabourandother^relatedand "* incidental'expenses.Itcannotbejusfthe valueoftheworksagreedtobe executedbythecontractor. *·''>• Recoursedismissed. Noorderastocosts. Casesreferredto: . ' 4 Pissas(No.2)viElectricityAuthorityofCyprus
(1966)3C.L.R.630; Plousiou v. TheCentralBankofCyprus
(1982)3C.L.R.230. - Recourse. 15 t Recourse against the decision of the respondent to award the tender for theinstallation of thesanitary sewage system,stage 1, Pallouriotissa totheinterested party insteadof theapplicant. A. SkordiswithA.Papacharalambous, for theapplicant.K.Michaelides, for the respondent.Cur. adv. v'ult. 20 , MALACHTOS J. read the following judgment. In this recourse the applicant company claims a declaration of the Court thatthedecision oftherespondent Board of 18.6.86not toaccept itstender for theinstallation of the sanitary sewage system, stage 1,Pallouriotissa,is nullandvoid andofnolegal effect whatsoevTherelevant facts of thecasearethe following: On 17.4.86 the respondent Board of Nicosia invited tenders 1795 Malachtos J. Saturn Building Co. v. Sewage Board N'sia
(1988)for theinstallation of sanitary sewers and other related works in the areaof Pallouriotissa. Oneof thetenderers was the applicant company who submitted its tenders within the time limit prescribed by the aforesaid invitation. The tender of the applicant company was for the amount of £119,295.60 c. excluding the 5 value of the pipes to be included in the works the total valueof which was £37,200.The applicant company was at all material times acontractor registered in theFourth Schedulein accordance withsection 9of the Building Contractors (Registration and Control) Law, 1973 IQ (Law 97/73) and theFirst Schedule thereto, asamended byLaw 38/82 and was under theaforesaid legal provisionsentitled toundertake technical works of a total value of not exceeding £120,000 and asreadjusted bysection 10of Law 32/82of a total value of not exceeding £152,880.,c The respondent Board rejected the tender of the applicant on the ground that under the aforesaid legal provisions thelatter was not entitled to construct the works as their total value in accordance with itstender would havebeen £156,495.60c. Theapplicant company wasinformed ofthedecision of therespondent to award the contract to a third person by letter dated 18.6.86 and as aresult, filed thepresent recourseon21.8.86. 20 Before embarking to consider the recourse on its merits,it is pertinent to consider first as to whether it was filed within the time limit of75days prescribed by Article 146.3of theConstitu- 25 tion which in any case, isamatter thatcan beraised bythecourt ex proprio motu (See Pissas (No.2) v. Electricity Authority of Cyprus
(1966)3 C.L.R. 630 atpage 636). Asitappears from thedocuments before me,therespondent's advocate wrotetocounselfor applicanton the24th May, 1986in- 30 forming him that theextentoftheworks whichtheapplicantcompany could undertake, was lessthan theamount of histender and so it wascontrary to law. It is,therefore, obvious that the appli1796 3 C.L.R. 5 Saturn Building v. Sewage Board cantcompanyhadknowledge thatits tendercould notbeaccepted by the respondent. See in this respect Plousiou v. The Central Bank of Cyprus
(1982)3 C.L.R. 230 at page
- So, on 21.8.86 when the applicant filed his recourse, it was after the lapse of 75 days time limit prescribed by the Constitutionand, therefore, therecourse should be dismissed. f *u * . IQ 15 20 Malachtos J. • •" ' I shall now proceed very briefly todeal with themerits of the recourse on the assumption that it has been filed within thepre scribed time.Itwas contendedon behalf of theapplicant thatits tenderwas wrongly considered as exceeding theamount specified by section 9 of theLaw, which is of thetotal value of £152,
- It was also argued on behalf of the applicant thattherespondent wrongly countedthevalue of thepipes as thesaid pipes were go ing tobe supplied by therespondentBoard. Iconsider that in theabsence of any provision tothecontrary theexpression "total value of theworks", in theFirst Scheduleto Law 32/82, as it is worded, should mean "The total amount which is required for theconstructionof the project as a whole", which includesthevalue of all thematerials and fixures as well as labour andotherrelated andincidentalexpenses. Itcannotbejust thevalue.of the works agreed tobeexecuted by the contractor. For all theabove reasons thisrecourse fails andis hereby dis^ missed with noorderas tocosts. ν . . " •. Recoursedismissed. . .-'Ήοorderas to costs. *..' . ι • J· 1797 *t " •