Jharkhand High Court
N.G. Projects Ltd vs The State Of Jharkhand Through The ... on 6 January, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.85 of 2020
N.G. Projects Ltd. --- --- Appellant
Versus
1. The State of Jharkhand through the Principal Secretary,
Road Construction Department, Government of Jharkhand, Ranchi.
2. The Engineer-in-Chief, Road Construction Department,
Government of Jharkhand, Ranchi.
3. The Chief Engineer (Commercial), Road Construction
Department, Government of Jharkhand, Ranchi.
4. The Executive Engineer, Road Division, Garhwa, Road
Construction Department, Government of Jharkhand, Garhwa.
5. M/s Vinod Kumar Jain -- --- Respondents
With
L.P.A. No.233 of 2020
1. The State of Jharkhand through the Principal Secretary,
Road Construction Department, Government of Jharkhand, Ranchi.
2. The Engineer-in-Chief, Road Construction Department,
Government of Jharkhand, Ranchi.
3. The Chief Engineer (Commercial), Road Construction
Department, Government of Jharkhand, Ranchi.
4. The Executive Engineer, Road Construction Department,
Road Division, Garhwa. --- --- Appellants
Versus
1. M/s Vinod Kumar Jain
2. M/s N.G. Projects Limited. -- --- Respondents
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan Through: Video Conferencing
---
For the Appellant : M/s. Biren Poddar, Sr. Adv., Deepak Sinha, Ram Subhag Singh, Advocates (in L.P.A. No.85 of 2020) For the Appellants-State : Mr. Piyush Chitresh, A.C. to A.G. For the Respondents : Mr. Sumeet Gadodia, Adv.
(in L.P.A. No.233 of 2020 and Respondent No.5 in LPA No.85/2020) Mr. Biren Poddar, Sr. Adv.
(in L.P.A. No.233 of 2020)
---
19/06.01.2022 These two appeals arise out of the judgment dated 14 th January 2020 passed in W.P.(C) No.5416/2019 which relates to work pertaining to "Reconstruction of Nagaruntari-Dhurki-Ambakhoriya Road (MDR-139)"
which have been referred to as W-2 work by the learned Single Judge.
2. To make the records straight it is pertinent to mention here that out of the common impugned judgment dated 14th January 2020, 3 other writ -2- petitions W.P.(C) No.5408 of 2019 and W.P.(C) No.5689/2019 [pertaining to "Reconstruction of Meral-Bana-Ambakhoriya Road (MDR-14)"] referred to as W-1 work by the learned Single Judge and W.P.(C) No.5894/2019 relating to "Reconstruction of Dandai Bazar to Panghatwa P.W.D. Road via Lawahikala Road" referred to as W-3 work by the learned Single Judge were also decided.
3. By the judgment dated 7th October 2021 passed by this Court comprising one of us (Aparesh Kumar Singh, J.) LPA Nos.112/2020, 113/2020, 119/2020 and 234/2020 arising out of the same judgment in W.P.(C) No.5408/2019 and W.P.(C) No.5689/2019 pertaining to W-1 nature of work were decided. The appeals were dismissed. The order of the learned Single Judge was upheld. The learned Division Bench in the above 4 appeals, upon consideration of the entire material facts placed from the record and the submissions of the parties, arrived at the opinion that the tender evaluation committee did not appear to adopt uniform yardsticks in evaluation of the technical bids as respects the bid security under Clause-7 read with Clause 16.1 and its addendum thereto in the case of not only the writ petitioner but also the successful bidder M/s Agrawal Global Infratech Pvt. Ltd. and also other successful bidders who were not impleaded as party respondents. The infirmity in their bank guarantee was also brought to the Court's notice. One of the successful bidders in technical bid was the appellant herein M/s N.G. Projects Ltd. who had also participated in the tender of W-1 nature of work. The private appellants in the said appeals M/s Agrawal Global Infratech Pvt. Ltd. had also taken a plea that since the substantial work had been executed pursuant to the award of work in their favour and that the agreement was not under challenge, the learned Single Judge has committed a serious error in quashing the consequential action of the State respondent in award of tender in favour of the private respondent M/s Agrawal Global Infratech Pvt. Ltd./appellant therein. However, the learned Division Bench in its judgment dated 7th October 2021 accepted the principle applied by the learned Single judge relying upon the legal maxim "sublato fundamento cadit opus", relying upon the decision in the case of TRF Limited versus Energo Engineering Projects Limited [(2017) 8 SCC 377] to the effect that once the -3- infrastructure has collapsed, the super structure is bound to collapse. The relief granted under the prayer "any other relief" in exercise of discretionary powers under Article 226 of Constitution of India to do complete justice was upheld relying upon the case of Satya Narain Singh versus District Engineer, PWD Ballia and another [1962 Supp. (3) SCR 105]; B.C. Chaturvedi versus Union of India and others [(1995) 6 SCC 749] and also in the case of Shangrila Food Products Ltd And Another versus Life Insurance Corporation of India and Another [(1996) 5 SCC 54]. The learned Division Bench held that when the award of work in favour of the private Respondent M/s Agarwal Global Infratech Pvt. Ltd / appellant therein was found to be flawed on grounds of arbitrariness in matters of qualification in technical bid, the consequential action to award the work in its favour could not have been upheld since it would amount to allowing the appellant to enjoy the fruits of a wrong decision. Learned Division Bench held that the course adopted by the learned single Judge to direct the Respondent State to call for a fresh tender for award of the work in such circumstances, did not call for any interference. In conclusion it was held that the employer did not appear to have adopted uniform standards as professed by it to the case of the individual tenderer while evaluating the technical bid. The selection of one and rejection of another during technical evaluation was neither in consonance with the specific terms of the NIT and SBD read with the Addendum, nor was on uniform yardstick.
4. The aforesaid discussion on the outcome of the analogous matters has been consciously referred to for the reasons that the present challenge also relates to similar rival issues relating to compliance of the bid security conditions under the NIT, the SBD and its addendum by the tenderers of whom the tender of the writ petitioner / private respondent herein had been rejected while the tender of the private respondent / appellant herein had been accepted by the tender evaluation committee. In the instant case also as the facts would disclose hereinafter, appellant a successful tenderer claims to have executed some portion of the work till it was stopped by the interim order dated 14th January 2020 passed by the learned Single Judge and has pleaded equity and principles of public interest. The salient facts relating to the present batch of appeals are now hereinafter referred to in brief.
-4-5. The relevant list of dates and events as are not dispute between the parties are being noticed herein below :-
Date Events 07.06.2019 Respondents - State of Jharkhand vide e-Tender Notice dated 7th June 2019 invited tenders for Reconstruction of Nagaruntari-Dhurki-Ambakhoriya Road (MDR-139).
20.08.2019 Above Tender was cancelled by the State Respondent.
20.08.2019 Fresh Tender Notice issued inviting tender for some work i.e. Reconstruction of Nagaruntari-Dhurki-Ambakhoriya Road (MDR-139).
03.09.2019 Writ petitioner got its original returned BG submitted earlier, got it amended from its banker namely SBI, Jashpurnagar Branch, and submitted the same along with its technical bid.
01.10.2019 Technical bid opened.
03.10.2019 Decision of Technical Committee, interalia, declaring the bid of the writ petitioner as non-responsive to clause-16.3 of SBD.
10.10.2019 Financial Bid opened.
11.10.2019 Writ petitioner filed W.P.(C) No.5416 of 2019 challenging therein the decision dated 03.10.2019 of Technical Committee.
16.10.2019 Letter of Acceptance issued in favour of the appellant.
19.10.2019 Performance security by way of BG submitted by the appellant.
21.10.2019 Notice to proceed to work vide letter no.1021 dated 21.10.2019.
21.10.2019 Agreement no.02 SBD/2019-20 was executed by and between the appellant and the respondent State.
-5-22.10.2019 Execution of work started by the appellant.
14.01.2020 Execution of work was stopped due to passing of the impugned order by learned Single Judge.
6. The relevant clauses of the NIT, the standard biding document and the addendum thereto as are necessary for appreciation of the case of the party as pleaded are also being quoted hereunder :-
"Government of Jharkhand Office of the Executive Engineer Road Construction Department, Road Division, Garhwa INVITATION FOR BIDS (IFB) NATIONAL COMPETITIVE BIDDING Retender (PR-No.-208314 Road (19-20)__D e-Tender Reference No.RCD/Garhwa/727/19-20 (2nd Call) Date: 20.08.2019 The Executive Engineer, R.C.D., Road Division, Garhwa invites item rate bids online for the work detailed in the table given below. The bidder is advised to read and examine carefully all instructions including addendum / amendments to ITB, conditions of contract, contract data, forms, terms, technical specifications, bill of quantities, etc. in the Bid Document before bidding.
Sl. Name of work Value of Bid Cost of Period of
work (Rs. in Security Document (in completion
No.
lakh) (Rs. in Rs.)
lakh)
1 2 3 4 5 6
1. Reconstruction of 10571.13019 105.72 Rs.10000.00 19
Nagaruntari-Dhurki- (Nineteen)
Ambakhoriya Road months
(MDR-139) Total including
Length 24.940 km. rainy
under Central Road season.
Fund for the year
2019-2020 (Job
No.CRF-JHR-2018-
19/51)
"
Clause-3 and 7 of the NIT are being quoted hereunder:
"3. Bids must be accompanied by security of the amount specified for the work in the column 4 of the above table drawn in favour of "Executive Engineer, Road Construction -6- Department, Road Division, Garhwa". Bid security will have to be in any one of the forms as specified in the bidding document and shall have to be valid for 45 days beyond the original validity of the bid in accordance with SBD (I.T.B.) Clause-15.1."
"7. Bids shall be strictly treated as non-responsive if
(i) Bid is not accompanied by an acceptable bid security (with validity for a period of not less than 45 days beyond the validity of bid) and not secured as indicated in sub clauses 16.1 and 16.2 of the Bidding Document.
(ii) the undertaking regarding validity of bid, for a period of 120 days after the dead line date for bid submission specified in clause 20 of the bidding document, is not submitted."
Clause-16 of the SBD is being quoted hereunder:
"16. Bid Security 16.1 The Bidder shall furnish, as part of his Bid, a Bid security in the amount as shown in column 4 of the table of IFB for this particular work. This bid security shall be in favour of Employer as named in Appendix and may be in one of the following forms (SECOND SENTENCE IS REPLACED):
a. Receipt in challan of cash deposit in the Govt. Treasury in India.
b. Deposit-at-call Receipt from any scheduled Indian Bank or a foreign bank located in India and approved by the Reserve Bank of India.
c. Indian post office / National Savings Certificate duly endorsed by the competent postal authority in India.
d. Bank Guarantee from any scheduled Indian bank, in the format given in Volume III.
e. Fixed Deposit Receipt, a certified cheque or an irrevocable letter of credit, issued by any Scheduled Indian Bank or a foreign bank approved by the Reserve Bank of India.
16.2. Bank Guarantees (and other instruments having fixed validity) issued as surety for the bid shall be valid for 45 days beyond the validity of the bid (Amended) 16.3. Any bid not accompanied by an acceptable Bid Security and not secured as indicated in Sub-Clauses 16.1 and 16.2 above shall be rejected by the Employer as non- responsive."
Clause-23.3 and its addendum are quoted hereunder:
"23.3 The "Technical Bid" shall be opened. If the bid security furnished does not conform to the amount and validity period as specified in the Invitation for Bid (ref. Column 4 and paragraph 3), and has not been furnished in the form specified in Clause 16, the remaining technical bid and the financial bid will be returned to the bidder. (AMENDED) Addendum 23.3. This sub-clause is replaced by the followings:--7-
"The Technical Bid shall be opened online. If the bid validity period as specified in the Invitation for Bid (ref. Column 4 and paragraph-3), and has not been furnished in the form specified in Clause 16, the remaining technical bid and the financial bid will be deemed as 'Rejected'."
Relevant Clause-26 of the SBD is extracted hereunder:
"26. Examination of Bids and Determination of Responsiveness 26.1. During the detailed evaluation of "Technical Bids", the Employer will determine whether each Bid (a) meets the eligibility criteria defined in Clause 3 and 4; (b) has been properly signed; (c) is accompanied by the required securities and; (d) is substantially responsive to the requirements of the Bidding documents. During the detailed evaluation of the "Financial Bid", the responsiveness of the bids will be further determined with respect to the remaining bid conditions, i.e., priced bill of quantities, technical specifications, and drawings."
Relevant Clause-29.3 of the SBD is extracted hereunder:
"29.3 The employer reserves the right to accept or reject any variation or deviation. Variations and deviations and other factors, which are in excess of the requirements of the Bidding documents or otherwise result in unsolicited benefits for the Employer shall not be taken into account in Bid evaluation."
Format of the bid security (bank guarantee) is extracted hereunder:-
"BID SECURITY (BANK GUARANTEE) WHEREAS, ______________________ [name of Bidder] (hereinafter called "the Bidder") has submitted his Bid dated _________________ [date] for the construction of _________________ [name of Contract hereinafter called "the Bid"].
KNOW ALL PEOPLE by these presents that We _____________________ [name of Bank] of __________________ [name of country] having our registered office at _____________________________ (hereinafter called "the Bank") are bound unto _______________________ [name of employer] (hereinafter called "the Employer") in the sum of _______________ * for which payment well and truly to be made to the said Employer the Bank itself, his successors and assigns by these presents. Sealed with the Common Seal of the said Bank this ______ day of _______ 20 ____.
THE CONDITIONS of this obligation are :
(1) If after Bid opening the Bidder withdraws his bid during the period of Bid validity specified in the Form of Bid;
OR (2) If the Bidder having been notified to the acceptance of his bid by the Employer during the period of Bid validity:
(a) fails or refuses to execute the Form of Agreement in accordance with the Instructions to Bidders, if required;-8-
or
(b) fails or refuses to furnish the performance security, in accordance with the Instructions to Bidders; or
(c) does not accept the correction of the Bid Price pursuant to Clause 27.
We undertake to pay to the Employer up to the above amount upon receipt of his first written demand, without the Employer having to substantiate his demand, provided that in his demand the Employer will note that the amount claimed by him is due to him owing to the occurrence of one or any of the three conditions, specifying the occurred condition or conditions.
This Guarantee will remain in force up to and including the date ___________ ** days after deadline for submission of Bids as such deadline is stated in the Instructions to Bidders or as it may be extended by the Employer, notice of which extension(s) to the Bank is hereby waived. Any demand in respect of this guarantee should reach the Bank not later than the above date.
DATE ____________ SIGNATURE __________
WITNESS _____________ SEAL ________________
__________________________________________________ (Signature, name and address) * The bidder should insert the amount of the guarantee in words and figures denominated in Indian Rupees. This figure should be the same as shown in Clause 16.1 of the Instructions to Bidders.
** 45 days after the end of the validity period of the Bid.
Date should be inserted by the Employer before the Bidding documents are issued.
Addendum prescribing the format and conditions of affidavits and undertakings is extracted herein below :
"Addendum Clause 3.1(i) Affidavits:- (As per sample format at page-
35) shall be submitted on Rs. 100.00 non Judicial stamp paper duly notarized.
(ii) Undertakings as per sample format at Page-36) shall be submitted on Rs. 100.00 non Judicial stamp paper duly notarized."
7. The case of the appellant M/s N.G. Projects Limited as canvassed by the learned Senior Counsel for the appellant is as under :-
That the writ petitioner had led challenge to the summary of an order of rejection dated 3rd October 2019 of the tender evaluation committee wherein it was indicated that the tender of the writ petitioner was rejected on the ground "non-responsive due to Clause 16.3 of Instructions to Bidders (ITB) to the Standard Bidding Document (SBD)". However, the detailed decision dated 1st October 2019 of the tender committee containing the -9- reasons for rejection of technical bid of the writ petitioner on 2 grounds: (A) amended bid security was furnished; (B) bid security was in violation of the notification of RBI were not specifically under challenge. In absence thereof the writ petition ought not to have been entertained. It is the case of the appellant that he being an eligible bidder was entitled to show additional reasons which may not have been within the contemplation of the authority as to why the technical bid of the writ petitioner was rightly rejected. He relies upon the decision rendered in the case of Afcons Infrastructure Limited versus Nagpur Metro Rail Corporation Limited and another [(2016) 16 SCC 818 para-18]. The writ petitioner did not fulfill the requisite criteria himself and was therefore not entitled to any judicial relief by the Writ Court.
In support, the decision of Raunaq International Ltd. Vrs. I.V.R. Construction Ltd. & Ors. reported in (1999) 1 SCC 492, para-27 has been placed for assistance.
8. As to how the writ petitioner was ineligible in other respects as regards the bid security, it has been argued as under :-
That it was only the writ petitioner who submitted the amended bank guarantee and his technical bid was rejected on this ground only. Out of a total of 13 bidders who had participated the writ petitioner had only submitted the amended bank guarantee. The format of the bid security and Clause-16 of the N.I.T. providing for bid security have been referred to. So far as the validity of the bid submitted by the writ petitioner is concerned, it has been stated that the same was also not in consonance with the second call notice dated 20th August 2019 as the validity of the bid security of the writ petitioner was effective from 8th July 2019. Resolution of the State of Jharkhand dated 24th January 2002 has been relied upon to show that the bank guarantee should be updated. As far as bid amount in the bank guarantee is concerned, it has been argued that instead of the bid security amount of Rs.105.72 lakhs the writ petitioner had submitted a bank guarantee of Rs.106.00 lakhs. The figures in digits were different from that in words and as such it did not conform to Clause-3 of the invitation to bidders. As per Clause-7 of the invitation to bidders it was rightly declared as non-responsive since the bid was not accompanied by acceptable bid security and not secured as indicated in Sub-Clause 16.1 and 16.2 of the bidding document. It has been -10- submitted that where there is a variation in the amounts stated in words with that of the figures, as per Section 18 of the Negotiable Instruments Act, the amount stated in words shall be the amount undertaken and ordered to be paid. In the petitioner's bank guarantee the amount was indicated as Rs.1,06,00,000/- and in words it was written as "One Crore Lakh only". This was in breach of the bid security format. As per Clause 23.3 of instruction to bidders, if the bid security furnished did not conform to the amount and validity period as specified in the Invitation for Bid and has not been furnished in the format specified in Clause 16, the bid shall be deemed as rejected as per the addendum to Clause-23.3, quoted above.
9. Learned Senior Counsel for the appellant submits that besides serious discrepancies in the bid security document i.e. bank guarantee, the writ petitioner's affidavit and undertaking, both were not as per the prescribed format but were only attested and not duly notorised. The appellant's affidavit and the undertaking in support of the tender document were duly notorised. It is submitted that under Clause-29.3 of the NIT the employer has the right to accept any variation or deviation in the tender document by the bidder. The deviations which were there in the bid security of the writ petitioner were distinct as compared to other bidders. The bid security i.e. the bank guarantee submitted by the writ petitioner was not rejected on the ground of having added the 'notwithstanding clause' in the format which deviation was ignored in the case of the appellant also. Since the employer had the right to accept any variation or deviation under Clause 29.3 of the NIT, rejection of the technical bid of the writ petitioner on the distinct deviations did not amount to adopting a pick and choose policy vis-à-vis other successful bidders including the appellant since the bid security document of the appellant did not suffer from the same infirmities. As such, the 'notwithstanding clause' relating to the validity period of bid security, in the case of the writ petitioner had not been made a ground for rejection of his technical bid. As such, the learned Single Judge was not right in holding that in acceptance of bid security, the employer had indulged in pick and choose method in evaluating the technical bids of the private respondents as well as other bidders which suffered from arbitrariness and unreasonableness which is not permissible in the eyes of law to satisfy the requirement of Article 14 of the Constitution of India.
-11-10. Learned Senior Counsel for the appellant Mr. Poddar has further submitted that it was well within the capacity of the employer to declare the technical bid of the appellant as substantially responsive as provided for under Clause-26.1. He relies upon the case of Tejas Constructions and Infrastructure Private Limited versus Municipal Council, Sendhwa and another: [(2012) 6 SCC 464, para-34].
11. As per the appellant he had already started the execution of work and part of the work had already been completed. Quashing of the entire tender and the work allotted to the appellant not only imposed heavy administrative burden on the administration but has also led to increased and unbudgeted expenditure. The appellant had completed the earthwork of 21 K.M. out of total 24 K.M. Therefore re-tendering of the work was not in the public interest. Reliance is placed on the case of Tata Cellular versus Union of India [(1994) 6 SCC 651, para-94(6)] and Sanjay Kumar Shukla Vrs. Bharat Petroleum Corpn. Ltd. [(2014) 3 SCC 493, para-19] in support of the submission. Learned counsel for the appellant submits that the work to the extent of Rs.75 Lakhs were executed as per the specific statements made in para-13 of their counter affidavit whereas by the time the work was stopped on 14th January 2020 the appellant had executed work to the tune of Rs.8.5 Crores on account of earth work in 21 Kms. out of total length of 24.940 Kms. Writ petitioner had not preferred any reply thereto. The work was started by the appellant after issuance of letter of acceptance by the State and submission of additional security; performance security and issue of notice to proceed the work. Moreover, the agreement was executed on 21st October 2019 after the financial bid was opened on 10 th October 2019. As such, quashing of the entire work allotted to the appellant did not serve public interest. He has submitted that the impugned judgment suffers from serious errors of law and on facts in appreciating the case of the parties and deserves to be set aside. It is further submitted that the decision rendered by this Court in the batch of other Letters Patent Appeals led by L.P.A. No.112/2020 relating to W-1 nature of work are distinguishable on salient features of the present case as has been demonstrated earlier. Mr. Poddar, Learned Senior Counsel for the appellant M/s N.G. Projects Limited has also tried to show from the counter affidavit of the appellant that the writ petitioner was -12- disqualified on account of bid capacity as per the formula prescribed by the employer which is quoted in para-18 of the counter affidavit of the State. As per Clause- 2.6.8 of the SBD the writ petitioner was disqualified on account of bid capacity which ought to have been more than the estimated cost of the work which is to be assessed as per the formula mentioned in the same.
12. Learned counsel for the appellant State has adopted the arguments urged by learned senior counsel for the private appellant. He has also referred to the various clauses of the NIT, the standard bidding document and its addendum. It is submitted that the bank guarantee was submitted in the name of Executive Engineer, Road Construction Department, Road Division, Garhwa in place of the Executive Engineer, Road Division, Garhwa. The bank guarantee submitted by the writ petitioner was an amended bank guarantee which was not acceptable as per the terms of the NIT and the SBD. The amount of bank guarantee submitted by the writ petitioner also differed in figures and in words which was not permissible under the standard bidding document. For all these reasons the tender of the writ petitioner was rejected. The learned Single Judge however failed to appreciate that if the tender of the writ petitioner did not conform to the specifications of the NIT and the SBD, he had no locus to challenge the award of work in favour of a successful tenderer who had qualified the terms of the NIT and the standard bidding documents including its addendum.
13. Learned counsel for the State has also placed reliance upon the decisions of the Apex Court as have been placed by the learned senior counsel for the private appellant.
14. Learned counsel for the writ petitioner/private respondent has inter-alia made the following submissions :-
At the outset it is submitted that on the salient features of the present case relating to W-2 nature of work there are no valid distinctions with the case of the appellants in the batch of the appeals decided by this Court vide judgment dated 7th October 2021. Learned counsel for the writ petitioner submits that the principles on which the judgment of the learned Writ Court has been upheld by the Coordinate Bench of this Court in the batch of letters patent appeals led by LPA No.112/2020 are equally applicable -13- to the present case. He has profusely relied upon the findings recorded by the learned Division Bench in the judgment dated 7 th October 2021 in particular at paragraph-23 to 25 and 32 to 35. He submits that on the principles laid down by the Apex Court in the case of Ramana Dayaram Shetty versus International Airport Authority of India and others [(1979) 3 SCC 489] the case of the parties has been judged. The employer i.e. the executive authority has been found to have deviated from the standards which it professed as per the terms of the NIT which it was under an obligation to scrupulously observe on pain of invalidation, if such decision making process was found in violation of the professed standards. It is submitted that if the bid security document of the writ petitioner did not conform to certain specifications and clauses of the NIT, the SBD and the addendum, the bank guarantee submitted by the appellant i.e. the successful bidder also did not conform to the format prescribed and the terms of the NIT and the SBD. The appellant had introduced a clause relating to the validity period of bid security which was not in conformity with the format prescribed.
15. The respondent State in its counter affidavit at para-14 categorically stated that the bank guarantee of every tenderer should be in the prescribed format. It did not indicate that the tender evaluation committee had made certain deviations acceptable and certain deviations/ variations as impermissible. Therefore, learned Writ Court while appreciating the case of the parties found that the employer had not adopted uniform standards in technical evaluation of the bids of the respective bidders. In such a case the entire tender process had got vitiated and was rightly quashed.
16. Learned counsel for the respondent has also referred to the decisions of the tender evaluation committee dated 1st October 2019 wherein though the tenders of the writ petitioner and other bidders like A.K. Construction; M/s Raja Ram Construction, Jalor were disqualified on certain counts, whereas there was no discussion on the eligibility of the appellant and other successful bidder both of whose technical bids were held to be substantially responsive. As such the decision making process had suffered warranting interference by the Writ Court under powers of the judicial review.
17. Learned counsel for the writ petitioner has placed reliance upon several decisions rendered by the Apex Court as has also been relied upon in -14- the judgment dated 7th October 2021 rendered in the batch of Letters Patent Appeals led by LPA No.112/2020. He submits that the present case is squarely covered under the said decision of the Coordinate Bench. Learned counsel for the writ petitioner has also countered the plea of equity raised by the appellant on the ground that it had executed substantial amount of work after the agreement was executed and till the work was stopped on 14 th January 2020 by the interim orders of the Writ Court. He submits that the statements made in its counter affidavit filed on 9th December 2019 shows execution to the extent of Rs.75 Lakhs whereas by 14th January 2020 the appellant has professed to have executed the earth work to the tune of Rs. 8.5 Crores which is simply not believable. It is further submitted that the appellate court in its judgment dated 7th October 2021 has also taken into account the legal maxim of "sublato fundamento cadit opus", as referred to in the case of TRF Limited versus Energo Engineering Projects Limited [(2017) 8 SCC 377] and upheld the decision of the learned Single Judge in quashing all consequential action of the State respondent in award of tender in favour of the said appellant M/s Agrawal Global Infratech Pvt. Ltd. Learned Division Bench had also taken note of the decisions rendered in the case of Satya Narain Singh (supra); B.C. Chaturvedi (supra) and Shangrila Food Products Ltd And Another (supra) which enabled the Writ Court to do complete justice in exercise of discretionary powers under Article 226 of Constitution of India even though such specific relief may not have been prayed at the threshold while the writ petition was filed. Based on these submissions learned counsel for the writ petitioner has prayed that the appeals deserve to be dismissed as being without merit and covered by the judgment dated 7th October 2021 in identical circumstances.
18. We have heard learned counsel for the parties at length and also considered the submissions of the learned counsel for the parties and taken note of the relevant material pleadings relied upon from the records. We have also gone through the impugned judgment.
19. In the opening paragraphs of this judgment the material clauses of the NIT, the Standard Bidding Document and its addendum have been profusely quoted as they are relevant and necessary to consider the questions raised by the parties in these appeals. While the appellant has pleaded that the -15- technical bid of the writ petitioner was rejected as non-conforming to Clause- 16.3 of the SBD and suffered from uncondonable deviations such as in the name of the addressee, the bid security amount as also the fact that an amended bank guarantee was submitted by the petitioner, on the other hand, the deviation in the format of the bank guarantee by the appellant was same as that of the writ petitioner so far as the validity period of the bank guarantee is concerned. However, that was not the reason as to why the technical bid of the writ petitioner was rejected. Clause-7 of the NIT is once again reproduced hereunder :-
"7. Bids shall be strictly treated as non-responsive if
(i) Bid is not accompanied by an acceptable bid security (with validity for a period of not less than 45 days beyond the validity of bid) and not secured as indicated in sub clause 16.1 and 16.2 of the Bidding Document.
(ii) The undertaking regarding validity of bid, for a period of 120 days after the dead line date for bid submission specified in clause 20 of the bidding document, is not submitted."
20. It prescribes that bid shall be strictly treated as non-responsive if
(i) it is not accompanied by an acceptable bid security and (ii) The undertaking regarding validity of bid, for a period of 120 days after the dead line date for bid submission specified in clause 20 of the bidding document, is not submitted. The format of the bid security, as quoted in foregoing paragraphs, shows that the employer had reserved its right to get the bank guarantee extended and notice for such extension had been waived. The relevant portion of the bank guarantee of the appellant which is not as per the prescribed format is being extracted as under:
"This Guarantee will remain in force up to and including the date 02/05/2020 after deadline for submission of Bids as such deadline is stated in the instructions to Bidders or as it may be extended at bank's sole discretion upon request by the Employer. Any demand in respect of this guarantee should reach the Bank not later than the above date."
That last relevant portion of the bank guarantee of the writ petitioner/respondent which is also not as per the prescribed format is extracted hereunder :
"Notwithstanding anything contained hereinabove:
1. Our liability under this bank guarantee shall not exceed Rs. 1,06,00,000/- (Rupees One Crore six Lacs Only).-16-
2. This bank guarantee shall be valid up to 07.03.2020; and
3. We shall be liable to pay the guaranteed amount or any part thereof under this bank guarantee only if we receive (if you serve upon us) a written claim or demand under this guarantee on or before 07.03.2020."
21. There are other significant deviations in the bank guarantee submitted by the writ petitioner as has been taken note of herein before, such as in the name of addressee where instead of the Executive Engineer, Road Division, Garhwa , the same is addressed to the Executive Engineer, Road Construction Department, Road Division, Garhwa and that Bank Guarantee is an amended Bank Guarantee. Besides that there is difference in the amount in words and in figures in the bank guarantee submitted by the writ petitioner. However, the issue which falls for consideration in the present matter as well, is whether the employer conformed to the specifications of the NIT Clause-7, Clause-16.1 to 16.3 of the SBD and the format of the bank guarantee while evaluating the bid security documents of the individual bidders and whether it permitted any specific deviations on a uniform basis vis-à-vis all tenderers or it chose to accept deviations of individual bidders while refusing to permit deviations or variations in the technical bid of other bidders.
22. On a comprehensive comparison of the bid security document submitted by the writ petitioner and the appellant, we gather that the bid security document submitted by both the tenderers failed to adhere to the specifications professed by the employer. While the appellant in the final paragraph of the bid security document made the bank guarantee extendable at the bank's sole discretion contrary to the requirement of the format and the bid document whereunder the employer had the right reserved to get the bank guarantee extended and notice for such extensions to the bank waived, the writ petitioner had also deviated on this count by introducing a notwithstanding clause which was not part of the format. As has been held in the case of Ramana Dayaram Shetty (supra), an executive authority must be rigorously held to the standards by which it professes its action to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. The decision making process of the employer in the instant case therefore does not conform to uniform yardsticks -17- in evaluating the tender of respective bidders, specifically the bid security document. As such, the action of the respondent Government cannot be said to be free from arbitrariness which is the very essence of the rule of law. This Court on those counts finds that the decision making process relating to award of W-2 nature of work also suffers from the same vice as that in the W- 1 nature of work.
23. The principles of law as enunciated by the Apex Court and profusely relied upon by this Court in the judgment dated 7th October, 2021 therefore do squarely apply to the facts of the present case as well. If the opinion of the learned Single Judge on those counts do not suffer from any perversity, there is no reason for the appellate court to take a different view of the matter and substitute its opinion.
24. We are also in agreement with the principles relying upon which the learned Single Judge quashed the entire consequential action of the respondent State in award of the tender in favour of the appellant M/s N.G. Projects Limited. The principles relied upon by the learned Single Judge relying upon the legal maxim "sublato fundamento cadit opus", as also relied in the case of TRF Limited (supra) have been accepted by this Court in its judgment dated 7th October 2021. We are also in agreement with the view of the learned Single Judge that in order to do complete justice in exercise of discretionary powers under Article 226 of Constitution of India the consequential action of the State respondent in award of work to the appellant deserved to be quashed in such circumstances, since once the infrastructure has collapsed, the super structure is bound to collapse, otherwise it would amount to allowing the appellant M/s N.G. Projects Limited to enjoy the fruits of a wrong decision. We are not convinced with the plea of equity raised by the appellant M/s N.G. Projects Limited on this count. In this context, the writ petitioner had shown from the pleadings on record that while it had quoted a financial bid of Rs.77.64 Crores while the appellant had offered a financial bid of Rs.94.62 Crores for completion of the W-2 nature of work. We however do not wish to make any comment upon the financial bids quoted by the rival parties as the issue at hand is confined to the rejection of the technical bid of the writ petitioner while accepting that of the appellant on the part of the employer State.
-18-25. Having analyzed the reasonings rendered by the learned single Judge in the conspicuous facts of the case, we are of the view that the decision of the tender evaluation committee in accepting the technical bid of the successful tenderer M/s N.G. Projects Limited while rejecting the technical bid of the petitioner did not conform to uniform standards as professed by it. The selection of one and rejection of another was neither in consonance with the specific terms of the NIT and SBD read with the addendum, nor was on uniform yardstick.
26. As a result of the aforesaid discussions and for the reasons recorded hereinabove, we do not find any merit in these appeals warranting interference. Accordingly, these appeals are dismissed. Pending interlocutory applications are closed.
(Aparesh Kumar Singh, J.)
Shamim/ (Deepak Roshan, J.)