Bombay High Court
Mr. P. M. Umbarkar vs The State Of Maha. Thr. Secretary, ... on 28 May, 2024
Author: Avinash G. Gharote
Bench: Avinash G. Gharote, M. S. Jawalkar
2024:BHC-NAG:5823-DB
1 wp 8433-2023-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.8433 OF 2023
PETITIONER : Mr. P. M. Umbarkar, aged
about 55 years, Occu.:
Business, R/o Laxminagar,
Nandepere Road, Wani,
District Yavatmal.
..VERSUS..
RESPONDENTS : 1. The State of Maharashtra,
through its Secretary, Public
Works Department,
Mantralaya, Mumbai-400032.
2. The Executive Engineer,
Public Works Division,
Pandharkawda, Dist.
Yavatmal.
3. The Superintending Engineer,
Public Works Circle,
Pandharkawda, Dist.
Yavatmal.
4. The Chief Engineer, Public
Works Region, Amravati.
5. Bajoriya Constructions Private
Limited, through its Director,
Mr. Sumeet Rameshchandra
Bajoriya, aged Major, having
its office at Balaji Chowk,
2 wp 8433-2023-J.odt
Yavatmal-445001.
6. M/s. Chiddrawar Construction
Company Private Limited,
through its Director Mr.
Sanjay Arvind Chiddarwar,
aged major, having office at
Girinagar, Waghapur Road,
Yavatmal-445001.
7. M/s. J.P.Enterprises, through
its Director Mr. Rajan Shaha,
aged major, having office at
403, Konark Sharam, 156
Tardeo, Mumbai-400034.
8. M/s. D.C. Gurubakshani,
through its authorized
representative Mr. Rajkumar
Gurubakshani, having office at
Plot No.13, Sainath, New
Colony, Nagpur-440001.
9. M/s. S.R.K. Infra, Proprietor,
Mr. Shagun Shaha, Aged
major, having office at
1301/A, Rajul Apartment
Nepancy Road, Mumbai-
400006.
-----------------------------------------------------------------------------------
Mr. R.M. Bhangde, Advocate for the Petitioner.
Mr. D.V. Chauhan, GP for the Respondent Nos. 1 to 4/State.
Mr. A.S. Manohar, Advocate for the Respondent No.7.
-----------------------------------------------------------------------------------
3 wp 8433-2023-J.odt
CORAM : AVINASH G. GHAROTE AND
SMT. M. S. JAWALKAR, JJ.
RESERVED ON : 9TH MAY, 2024.
PRONOUNCED ON : 28th MAY, 2024.
ORDER (PER : AVINASH G. GHAROTE, J.)
1. Heard Mr. Bhangde, learned counsel for the petitioner, Mr. Chauhan, learned Government Pleader for the respondent Nos. 1 to 4/State and Mr. Manohar, learned counsel for the respondent No.7. None appears for the respondent Nos.5, 6, 8 and 9 though served.
2. The petition questions the decision dated 20.12.2023 (page 164), whereby the Bid of the petitioner for the work of construction of Cement is rejected.
3. Mr. Bhangde, learned counsel for the petitioner, insofar as the rejection on point number (ii) invites our attention to page 57 Clause 3, which indicates that tenderers who do not have the ownership of the slip form paver machinery but intend to purchase it, shall upload.
4 wp 8433-2023-J.odt 3.1. Insofar as the Firm Purchase Order is concerned, he relies upon the Government Resolution dated 27.09.2018 and specifically Clause 4.5.2 (4) (page 239), to contend that in case any deficiencies were found in the Tender submitted by the Contractor they are permissible to be cured, in view of which the copy of the Purchase Order which was placed with Apollo Infratech Private Limited, Gujrat, for purchase. 3.2. Insofar as the rejection on the ground that Single work done by the petitioner was not adequate, he invites our attention to page 92, the certificate issued by the Executive Engineer, Public Works Department, Pandharkawada which is on the basis of the certificate issued by M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune of whom the petitioner was a Sub- Contractor, which certificate dated 23.12.2022 indicates the Quantity and Workdone by the petitioner in his capacity as a Sub-Contractor. He also relies upon the communication issued by the Tendering Authority dated 30.11.2023, to the Sub- Divisional Engineer P.W. Sub-Division, Wani (page 267) making an enquiry regarding the details of the cement road constructed by the petitioner and the reply of the Sub-Divisional Engineer, 5 wp 8433-2023-J.odt P.W. Sub-Division, Wani, dated 05.12.2023 (page 268) supplying the details of the concrete road work done by the petitioner. It is contended, that by comparing the items is the chart accompanying with the reply dated 05.12.2023 with the items indicated in the certificate dated 23.12.2022. 3.3. It is therefore contended, that considering the certificate issued by the Sub-Divisional Engineer, P.W. Sub- Division, Wani, the reasons for rejection of the offer of the petitioner, were clearly unwarranted, and therefore, could not be countenanced. He also points out, that the offer of the respondent No.3 which has been accepted was for the sum of Rs.10.99 Crores, whereas the offer of the petitioner was Rs.9.40 Crores, which has resulted in a loss of Rs.1.59 Crores to the public exchequer.
3.4. It is also contended, that the dictum of the Hon'ble Apex Court in N.G. Projects Limited Vs. Vinod Kumar Jain & Others, (2022) 6 SCC 127, has been watered down by the Hon'ble Apex Court in Jai Bholenath Construction Vs. Chief Executive Officer, Zilla Parishad, Nanded and others, 2022 MhLJ Online(S.C.) 13 by holding that where there has been arbitrary 6 wp 8433-2023-J.odt exercise of power in rejecting a bid, interference could be justified, which has been considered by this Court in Nanak Construction, Katol Vs. State of Maharashtra and others, 2023(3) Mh.L.J. 603.
4. Mr. Chauhan, learned Government Pleader for the respondent Nos. 1 to 4/State, submits that the clause regarding qualification is an essential condition of the NIT, and since the petitioner has not fulfilled the same, the rejection is aptly justified.
4.1. He further submits, that the clause regarding work of similar nature/type of work having been completed by the Tenderer was relating to work being completed as an original Contractor and not as a Sub-Contractor, and therefore, on this ground since the work done by the petitioner was as a Sub- Contractor of M/s R.K. Chavan Infrastructure Pvt. Ltd., Pune, (which was disclosed from the certificate at page 92), it cannot be said to satisfy the criteria of successful completion of work. In the alternate he submits, that the certificate annexed by the petitioner with the Tender document (page 111) which is the statement showing the work executed in the last five years of 7 wp 8433-2023-J.odt work done and work in hand would indicate that Work Nos. 2 and 3 as indicated therein were the Works in Progress and only Work No.1 was completed, which according to him would not satisfy the criteria of three works being successfully completed. Further inviting our attention to the statement at page 114 dated 26.10.2023, it is contended, that Work No.2 indicated therein was Work in progress and also indicated that non- satisfaction of having completed three works in terms of the NIT. Further inviting our attention to the communication dated 25.02.2020 (page 86) Clause 6 and 7 therein, it is contended, that the credibility of the petitioner has not been tested by PWD, in the process of sub-contracting.
4.2. Insofar as the second ground of rejection is concerned, it is contended, that in absence of a Firm Purchase Order which was the essential condition of the NIT, in respect of the Slip Form Paver, the bid has rightly been rejected. 4.3. He further submits, that the difference of Rs.1.59 Crores which is being relied upon by Mr. Bhangde, learned counsel for the petitioner, cannot be the basis of an enquiry as such a comparison could only be in respect of two.
8 wp 8433-2023-J.odt 4.4. He relies upon Tata Motors Limited Vs. Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and Others, 2023 SCC OnLine SC 671 para 48 and Agmatel India Private Limited Vs. Resoursys Telecom and Others, (2022) 5 SCC 362 Para 24 to 26. Reliance is also placed upon M/s Sterling and Wilson Private Limited Vs. Gujarat Metro Rail Corporation GMRC Ltd., R/Special Civil Application No.19121/2022, decided on 26.09.2022 para 27 in support of his contention. He also places reliance upon Silppi Constructions Contractors Vs. Union of India and Another,(2020) 16 SCC 489 para 24 & 25.
5. Mr. Atharva Manohar, learned counsel for the respondent No.7, submits that the Work Order at page 84 was not in favour of the petitioner but was in favour of M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune. The requirement according to him regarding successful completion of work has to be of by an original Contractor, whose work is tested and found satisfactory by the Department and not in relation to a Sub- Contractor. Inviting our attention to the Quantity and Workdone Certificate at page 92, it is contended, that it is not a certificate 9 wp 8433-2023-J.odt issued in favour of the petitioner of having successfully completed the work, but is a certificate issued on the basis of the certificate issued by M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune.
5.1. In light of the language of Clause (ii) of the NIT regarding the successful completion of the work (page 59), learned counsel relies upon Shapers Construction (P) Ltd., and Another Vs. Airport Authority of India and Another, (1996) 10 SCC 760 para 5 to contend that the work completed would indicate completion on the date of application for the tenders, of the entire work and not a part of the work. It is contended, that since the original Contractor was M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune, the work completion certificate could only be issued to Ms R.K.Chavan Infrastructure Pvt. Ltd., Pune and not to a Sub-Contractor, and therefore, the certificate at page 92, could not have been considered by the Tendering Authority by holding that the work was successfully completed by the petitioner.
5.2. He further relies upon the language of Clause 1.4.13 (page 60), which contemplates as under:
10 wp 8433-2023-J.odt " 1.4.13 Post Qualification criteria:
(i) Scanned Copy of original Certificate for having Maximum annual turnover of not less than Rs. 1031.11 Lakh in any one year during last Five Years financial years updated to current cost (Such certificate for civil engineering works are required to be obtained from the Chartered Accountant of Maharashtra state/any State of India). For updating to current cost please refer table at the end of this clause.
(ii) Scanned Copy of original Certificate for having Successfully completed Three Works of Similar type & nature, each work value not less than Rs. 451.98 Lakhs updated to current cost, in last Five financial years. For updating please refer table (Such certificate are required to be obtained from the officer not below the Rank of Executive Engineer (Completed Work Carried out In Govt/ Semi Govt Bodies such as MHADA, MSEB, MIDC, CIDCO Etc. will only be considered.) OR Scanned Copy of original Certificate for having Successfully completed Two Works of Similar type & nature, each work value not less than Rs. 564.98 Lakhs updated to current in last Five financial years and current year. For updating please refer table (Such certificate are required to be obtained from the officer not below the Rank of Executive Engineer (Completed Work Carried out In Govt/ Semi Govt Bodies such as MHADA, MSEB, MIDC, CIDCO Etc. will only be considered.) OR Scanned Copy of original Certificate for having Successfully completed one Works of Similar type & nature, each work value not less than Rs. 903.97 Lakhs updated to current cost, in last Five financial years and current year. For updating please refer table (Such certificate are required to be obtained from the officer not below the Rank of Executive Engineer (Completed Work Carried out In Govt/ Semi Govt Bodies such as MHADA, MSEB, MIDC, CIDCO Etc. will only be considered.)
(iii) Scanned Copy of certificate of satisfactorily executed minimum quantities of following items in any continuous twelve calendar months in Five years prior to current year and current year. (Such certificates are required to be obtained from the officer not below the rank of Executive Engineer or Equivalent) and the certificate shall specifically mention the period of execution as continuous twelve calendar months.
11 wp 8433-2023-J.odt S.No. Item of Work Quantity Unit 1 GSB 808.00 Cum 2 WBM Grade-I & Grade-II 1714.00 Cum 3 Cement Concrete M-40 Grade 2533.00 Cum (PQC) 4 TMT Fe 500, 10.00 MT For (i) above the tenderer shall provide authenticated proof of information given therein. This shall include a certificate from his Chartered Accountant.
For (ii) and (iii) above, the criteria mentioned is for works carried out in Govt. / Semi Govt. Bodies such as MHADA, MSEDCL, MIDC, CIDCO.
For other than Govt. / Semi Govt. works the criteria of amount of single work and quantities above shall be double of the mentioned above. Certificates are required to be obtained from the officer not below the rank of Executive Engineer (Work Carried out in Govt/ Semi Govt Bodies such as MHADA, MSECDL, MIDC, CIDCO) or equivalent competent authority.
In case of other than Govt./Semi Govt./PSU's/Autonomous Bodies etc. certificates are required to be obtained from Director/CEO/or Office in Charge of Project or equivalent, and the work valuation certificate by the Chartered Engineer (Civil) (registered with Institute of Chartered Engineers, India) also to be attached.
"
5.3. He further relied in this regard on Shaikh Wasim Shaikh Firozlala Tamboli Vs. Food Corporation of India, Through its General Manager, 2021 SCC OnLine Bom 9238 para
12. Reliance is also placed by him upon Sarr Freights Corporation Vs. CJDARCL Logistics Ltd. and Others, 2023 SCC OnLine SC 1578 para 16 and N.G. Projects Limited (supra) para 11 in support of his contention.
12 wp 8433-2023-J.odt 5.4. Insofar as the other ground of rejection, it is contended, that there is no justification, as to how and in what manner, the Purchase Order, which is now been placed on record (page 146) is claimed to have been placed with the original supplier, as it is of the same date of 27.10.2023, as a perusal, of the same according to him does not disclose in what manner the same has been placed upon the supplier. 5.5. He further submits, that there is no prayer in the petition to quash the Work Order which has already been issued and 35% of the work under the same already stands completed by the petitioner in which background it is contended, that considering the limited scope of interference by this Court under Article 226 of the Constitution of India, the petition needs to be dismissed.
6. Mr. Bhangde, learned counsel for the petitioner, in rebuttal submits as under :
6.1. Insofar as the Purchase Order of Slip Form Paver, it is contended, that the same was psychically placed with the 13 wp 8433-2023-J.odt supplier on 27.10.2023 itself, and therefore, the question of it being sent by any mode did not arise.
6.2. He further relies upon Carona Ltd., Vs. Parvathy Swaminathan & Sons, (2007) 8 SCC 559 to contend, that the rights of the parties, have to be decided as on the date on which the grievance has been filed and therefore, even if the work order has been issued since that is during the pendency of the petition, absence of a challenge to the same, would not adversely affect the right of the petitioner.
7. We would first like to consider the ground of rejection of the bid of the petitioner which was "Ownership of slip form paver not established". The machinery which we are concerned is 'Slip Form Paver' at Sr. No.2 of the table (a) (page
55) which details the minimum and mandatory machinery to be owned by the Contractor, which table, along with the terms in that regard, documents in relation to which are part of what has to be enclosed in Envelope No.1 (Sr. No.1.4/page 55) for the sake of ready reference are reproduced as under:
"(Minimum and Mandatory Machinery)
a) MACHINERY TO BE OWNED BY CONTRACTOR:-
14 wp 8433-2023-J.odt Sr. Name of equipment Quantity Own / No. Hire
1. RMC (Ready Mix Concrete Plant) 1 Own Plant/Concrete Batch Mix Plant of minimum 30 cum/hr Capacity of any standard company equipped with computerized SCADA arrangement
2. Slip Form Paver 1 Own
3. Plate Vibrator / Screed Vibrator 4 Own
4. Transit Mixers 6 Cum./hr. Capacity 2 Own
5. Needle Vibrator 6 Own
6. Vibratory Road Roller 1 Own Note 1. The machineries specified under Sr. No.1 to 6 shall be owned by the contractor. Scanned from original copy of Registered Sale Deed in case of second hand purchase of machinery/ plant should be uploaded. Scanned from original copy of Manufacturer/ Supplier / Tax Invoice in case of First hand purchase of machinery / plant should be uploaded, Proforma Invoice / Retail Invoice shall not be accepted.
Note : 1. The bidder must upload scanned from original copy of the following documentary evidence in support of his availability of the above machinery & equipments. : Purchase Voucher, current valid RC Books, Ownership documents & certificates, etc. Note : 6. -------
1. For effective execution of work the machinery as mentioned at Sr. No.1 to 6 above must be owned by the tenderer.
2. The tenderer who already has ownership of the above stated at Sr. No.1 to 6 machinery shall upload following scanned copies of the original documents in the Technical Bid.
(i) Purchase Voucher, Receipts/Ownership documents, Tax Invoice.
15 wp 8433-2023-J.odt
(ii) Registered (Stamp Duty Paid) Sale Deed & Receipt of the original owner (If purchased old machinery/ Second Sale).
3. The tenderers who do not have the ownership of the above stated at Sr. No.1 to 6 machinery but intends to purchase the m he shall upload the following scanned copies of the original documents in the Technical Bid.
(i)The necessary "Firm Purchase Order" placed on a reputed manufacturer with payment not below 25% of the cost of the said plant/machinery alongwith the Proforma Invoice.
(ii) For machinery at Sr. No.1 to 6 only- the tenderer shall furnish Assured Performance Security of Rs.20.00 lakhs in the form of FDR/TDR in the name of the said Executive Engineer, payable at his office headquarter for the "Trial Run" and Commissioning of the machinery at Sr. No.1. Copies of the Firm Order/Proforma Invoice/ FDT/TDR shall be uploaded...."
7.1. A perusal of both these clauses would indicate that they relate to the quantity of work performed by the tenderer and so also the machinery which the tenderer owns and are inserted to test the capacity and capability of the tenderer to perform the work and thus are essential conditions, which were required to be mandatorily complied with by the tenderer. That this is so, is also spelt out from what has been stated below Note-6, above, which states that for effective execution of work the machinery as mentioned at Sr. No.1 to 6 in the table above must be owned by the tenderer.
16 wp 8433-2023-J.odt 7.2. Admittedly the petitioner had not uploaded with the tender the 'Firm Purchase Order', for the Slip Form Paver, which was supplied by the petitioner only with the reply dated 27/11/2023 (page 115) through his Counsel. The contention in this regard is that the GR dated 27.09.2018 (page 222) permitted the defect to be rectified.
7.3. Thus so far as this point is concerned the entire issue, basically revolves around the scope and ambit of the Government resolution dated 27.09.2018 (page 222) and whether it permitted rectification of only minor discrepancies or permitted a tenderer to rectify even substantial defects in the bid as submitted by a tenderer. The relevant Clause is Clause 4.5.2 (page 239), which for the sake of ready reference is quoted as under :
"४.५.२ निविदा पडताळणी समितीने निविदा उघडल्यानंतर त्यां नी निविदे ची छाननी करुन यासाठी निविदे च्या पात्रते/अपात्रतेविषयी काही शंका निर्माण झाल्यास, विशेषतः खालील बाबीवं र त्यां नी कत्राटदारां कडू न स्पष्टीकरण मागविणे अनिवार्य राहील.
(१) नोंदणी विषयक कागदपत्रे (२) पॉवर ऑफ vW टर्नीबाबतची स्पष्टीकरणे (३) बँक प्रतीभूती हमी मधील त्रुटी (४) कंत्राटदाराने सादर केलेल्या तां त्रिक व आर्थिक विवरणात संदिग्धता व त्रुटी आढळत असल्यास त्याबाबत स्पष्टीकरण (५) पुलाची लां बी व विनिर्देश, समान कामे, इमारतीचं ी उं ची व कामाचे गुणवत्ता निकष, रस्ते बां धकामातील कामां चे/बाबींचे परिमाण व शुल्क (६) जॉइं ट व्हें च्यूअर (Joint Venture) असल्यास त्यासंबंधी 17 wp 8433-2023-J.odt करारनाम्यात त्रुटी असणे, प्रमाणित नसणे , करारनामा नोंदविलेला नसणे, भागीदाराचे शेअर नमूद नसणे (७) आर्थिक ताळे बंद व विवरणातील त्रुटीबाबतचे स्पष्टीकरण (८) तां त्रिक लिफाफ्यातील सादर केलेले प्रस्ताव/कागदपत्रातील अटी /शर्ती व पत्र व्यवहारातील संदिग्धता, अस्पष्टता इत्यादि.
याबाबत निविदा उघडणाऱ्या सक्षम अधिकाऱ्यां नी (कार्यकारी अभियंता/ अधीक्षक अभियंता) संबंधीत कंत्राटदारास पात्र/अपात्र ठरविण्यापूर्वी त्यां चेबरोबर लिखित स्वरुपात पत्रव्यवहार करावा व कंत्राटदाराकडू न लिखित स्वरुपात स्पष्टीकरण घेऊन ते पडताळावे. किरकोळ व महत्व नसलेल्या अटीमुळे निविदाकरास अपात्र करण्यात येऊ नये . अशा ठिकाणी कंत्राटदाराकडू न लेखी स्पष्टीकरण घ्यावे व अटीनुसार दु रुस्त कागदपत्रे प्राप्त करुन समितीसमोर ठे वून त्याची छाननी करुन कंत्राटदाराच्या निविदा पात्रता/अपात्रतेविषयी निर्णय घ्यावा. याबाबतचे सर्व अभिलेख धारिकेत व संकेत स्थळावर ठे वावे व निविदा स्विकृतीसाठी सादर करण्याच्या प्रस्तावात या सर्व पडताळणी पध्दतीचा स्पष्ट उल्लेख करावा.
बऱ्याचदा एक निविदा उघडण्यावेळी पात्र असलेल्या कंत्राटदार दु सऱ्या निविदावेळी सुध्दा अपात्र ठरविण्यात येते. यात कदाचित कंत्राटदाराचे संगनमत (CARTEL FORMATION) होण्याची शक्यता नाकारता येत नाही. यास्तव ज्यां नी दे शात / राज्यात अथवा सा.बां . विभागात सक्षमपणे कामाच्या स्वरुपानुसार जसे की, इमारतीच्या कामासाठी इमारतीचे समतुल्य काम, पुलाच्या कामासाठी पुलाचे समतु ल्य काम इत्यादी केले आहे अशा कंत्राटदारास निविदा किरकोळ कारणास्तव (जसे की, PTC, Machinery, आयकर कागदपत्रे , Similar work condition इ.) अपात्र करु नयेत. अश्या कंत्राटदारां नी त्यां ची पुर्वीची कागदपत्रे उपलब्ध केल्यास ती पडताळू न पात्र ठरविण्याबाबत कळवावे व आर्थिक लिफाफा क्र.२ उघडावा." 7.4. Mr. Rahul Bhangde, learned Counsel for the petitioner, has placed reliance upon sub-clause (4) of the above said clause to contend that It is mandatory for the tender committee to scrutinise the tender, and in case it finds any defects in the technical and financial bids of a tender, an opportunity has to be granted to such tenderer to rectify the defects and only upon such rectification the further process has to commence.
However, a purposeful reading of the entire Clause 4.5.2, above would indicate that though it requires the tender committee to 18 wp 8433-2023-J.odt give an opportunity to the tenderer to cure any defects in the technical and financial bids, such opportunity, is to be granted only in respect of non-essential (महत्व नसलेल्या) and trivial (किरकोळ) conditions and not otherwise. The entire GR dated 27.09.2018, does not indicate that where a tenderer fails to comply with the essential conditions, of the NIT and thereby renders his bid non-responsive, an opportunity has to be granted to such tenderer to cure the defect. Such a contention in fact goes against the very spirit of the entire tender process, which necessarily mandates that while submitting the technical information in Envelope-1 and the commercial information in Envelope-2, the tenderer has to comply with all the requirements as laid down in the NIT. Any other meaning to Clause 4.5.2 of the GR dated 27.09.2018, will render the entire tender process meaningless and without any end and finality, which is impermissible. 7.5. That this is so, in the instant matter too, is evident from the fact that the relevant clause of the NIT indicates that a Slip Form Paver is one of the minimum and mandatory machinery to be had by the tenderer. The NIT requires the 'Purchase Order' to be uploaded by the tenderer. Though it also contemplates a situation where a tenderer may not have the ownership of the mandatory machineries 19 wp 8433-2023-J.odt but intends to purchase them, however in this situation also, it mandatorily requires the tenderer to upload the scanned copy of the original 'Firm Purchase Order', placed by the tenderer upon the reputed manufacturer. Though it is true that the petitioner had uploaded the proforma invoice along with the receipt of 25% of payment of the cost of Slip Form Paver, (page143 and 144), and these documents may indicate the petitioner having placed an order with the manufacturer for its supply, however it equally remains a fact that the 'Firm Purchase Order', was not uploaded by the petitioner. The terms of the NIT, initially indicate that where a tenderer who claimed to have owned the mandatory machineries, what was required to be uploaded by him was a scanned copy of the original Purchase Voucher, current valid RC Books, Ownership documents & certificates etc. and a Proforma Invoice / Retail Invoice was specifically stated to be not an acceptable document. At the same time the clause which permits the tenderer who indents to purchase the mandatory machinery, was required to upload the 'Firm Purchase Order'. That this was not uploaded is an admitted position as the 'Firm Purchase Order', as is stated above was only sent by the petitioner to the tendering committee, on 27/11/2023 under the reply sent through Counsel. This would indicate that either the 'Firm 20 wp 8433-2023-J.odt Purchase Order', was not available with the petitioner when the bid was uploaded, otherwise, that being an essential document, the petitioner would have uploaded it with the bid, or if the petitioner had it, did not uploaded it. In any case, absence of the 'Firm Purchase Order', would clearly make the bid unresponsive as indicated above, as we have already held that uploading of a 'Firm Purchase Order', was an essential term of the NIT, which could not have been rectified under the terms of the GR dated 27.09.2018 and therefore the rejection of the bid of the petitioner on this ground, cannot be held to be unjustified.
7.6. Though Mr. Rahul Bhangde, learned Counsel for the petitioner, has contended that the GR dated 27.09.2018, should be taken at its face value as meaning affording an opportunity to the tenderer to cure all and any defects in the bid and we should not opine as to its meaning, we however are unable to accept the contention as the very actions of the petitioner, as well as the tendering authority have to be tested on the basis of the meaning of Clause 4.4.2 of the said GR or for that matter any other clause which according to him, empowers the tenderer to rectify the defects in the essential conditions of the NIT.
21 wp 8433-2023-J.odt
8. That takes us to the other ground of rejection of the bid of the petitioner that the Single work which was claimed to have been done by the petitioner to meet the criteria of experience was found not to be adequate. The relevant clause in this regard in the NIT is as under :
" 1.4.13 Post Qualification criteria:
(i) .....
(ii) Scanned Copy of original Certificate for having Successfully completed Three Works of Similar type & nature, each work value not less than Rs. 451.98 Lakhs updated to current cost, in last Five financial years. For updating please refer table (Such certificate are required to be obtained from the officer not below the Rank of Executive Engineer (Completed Work Carried out In Govt/ Semi Govt Bodies such as MHADA, MSEB, MIDC, CIDCO Etc. will only be considered.) OR Scanned Copy of original Certificate for having Successfully completed Two Works of Similar type & nature, each work value not less than Rs. 564.98 Lakhs updated to current in last Five financial years and current year. For updating please refer table (Such certificate are required to be obtained from the officer not below the Rank of Executive Engineer (Completed Work Carried out In Govt/ Semi Govt Bodies such as MHADA, MSEB, MIDC, CIDCO Etc. will only be considered.) OR Scanned Copy of original Certificate for having Successfully completed one Works of Similar type & nature, each work value not less than Rs. 903.97 Lakhs updated to current cost, in last Five financial years and current year. For updating please refer table (Such certificate are required to be obtained from the officer not below the Rank of Executive Engineer (Completed Work Carried out In Govt/ Semi Govt Bodies such as MHADA, MSEB, MIDC, CIDCO Etc. will only be considered.)
(iii) Scanned Copy of certificate of satisfactorily executed minimum quantities of following items in any continuous twelve calendar months in Five years prior to current year and current year. (Such certificates are required to be 22 wp 8433-2023-J.odt obtained from the officer not below the rank of Executive Engineer or Equivalent) and the certificate shall specifically mention the period of execution as continuous twelve calendar months.
S.No. Item of Work Quantity Unit
1 GSB 808.00 Cum
2 WBM Grade-I & Grade-II 1714.00 Cum
3 Cement Concrete M-40 Grade 2533.00 Cum
(PQC)
4 TMT Fe 500, 10.00 MT
"
The requirement in this regard is for the tenderer to have successfully completed one work of similar nature, which certificate is to be obtained from an officer not below the rank of Executive Engineer. The satisfaction in this regard of having successfully completed works of a similar nature is of the Executive Engineer, under whom, the work is claimed to have been completed by the tenderer. The petitioner in order to satisfy this requirement has submitted the certificate dated 23.12.2022 at page 92, which is issued by the Executive Engineer, PWD, Pandharkawda Division. A perusal of the language of this certificate, would indicate that nowhere it mentions that the work in question was successfully completed by the petitioner. Rather on the contrary, it is a quantity and work done certificate, which would indicate that the petitioner as the sub-contractor of M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune, under a sub-contract, which had been approved, had 23 wp 8433-2023-J.odt completed the quantity of work to the extent of Rs.23,51,59,261.00, the work being 'Improvement to Wani Kayar Purad Road SH-319 Km 0/00 to 23/500 (Length 23.500 KM) Under CRF Tq. Wani'. This certificate which is termed as a Quantity Certificate by the Executive Engineer, PWD, Pandharkawda, nowhere states that the work, of a similar nature as required under the NIT has been successfully completed by the petitioner. That apart this certificate also does not indicate that it is an independent certificate, issued by the Executive Engineer regarding his own satisfaction, but is a quantity certificate issued on the basis of certificate issued by M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune on 14.12.2022 and on the request of the petitioner.
8.1. It is also material to note that this certificate, on the face of it, did not indicate that the petitioner had done the work of a similar nature to the tune of Rs.907.97/- Lakhs, but was a certificate of the entire work done by the petitioner, under sub-contracting with M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune. The tendering authority was therefore required to write a letter to the Sub- Divisional Engineer, Wani, on 30.11.2023 (page 267) requiring from him, to immediately by return post, reply as to what was the quantity 24 wp 8433-2023-J.odt of cement road, which was constructed by the petitioner. The Sub- Divisional Engineer, Wani, by his communication dated 05.12.2023 (page 268) replied with a table annexed to the reply regarding the quantity of cement road constructed by the petitioner. The calculation of the works in the table annexed to his reply indicated that cement road works undertaken by the petitioner as a sub-contractor of M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune, was more than what was the quantity of a single work which was required to be completed by a tenderer. This however would indicate that the certificate dated 23.12.2022 (page 92), as submitted by the petitioner, originally did not satisfy the criteria of the quantity of work of a similar nature being performed by the petitioner, because of which the tendering authority was required to write to the Sub- Divisional Engineer, Wani, asking for its reply. As we have stated earlier, such a course of action was not permissible for the Tendering Authority, as the requirement was for the original certificate, submitted to satisfy the criteria laid down in this regard of successful completion of one work of a similar nature by the petitioner. The Tendering Authority could not have resorted to soliciting the mode of information in this regard from the Sub- Divisional Engineer, Wani, to determine what was the quantity of similar nature of work done 25 wp 8433-2023-J.odt by the petitioner. The certificate in this regard, in fact, on the face of it, ought to have reflected this position. As indicated earlier, Clause 4.5.2 of the GR dated 27.09.2018 (page 222) does not permit the tendering authority to permit the tenderer to rectify defect in the essential conditions of the NIT. It would be equally correct to say that the terms of the GR dated 27.09.2018, also do not permit the tendering authority to undertake an exercise of soliciting information on behalf of a tenderer, to enable him, to satisfy the criteria. All that the tendering authority can do is to undertake an exercise of verifying the correctness of the certificate of experience uploaded by the tenderer, and in case it finds that the certificate is vague, or does not disclose with sufficient clarity the quantity of similar nature of work done by the tenderer, on the face of it, it would be justified in rejecting the certificate and consequently disqualifying the tenderer in the technical round itself. In our considered opinion, the very fact that the tendering authority was required to call upon the Sub- Divisional Engineer, PWD, Wani, by its letter dated 30.11.2023 (page
267) to clarify as to the exact nature of cement road work done by the petitioner, itself points out that the work done certificate dated 23.12.2022 (page 92) uploaded by the petitioner in support of the similar work done criteria, was not to the satisfaction of the 26 wp 8433-2023-J.odt tendering authority, as it was not able to ascertain from a reading of the same, as to whether the requirement in the NIT in this regard stood satisfied by the petitioner, considering which, without going any further the same ought to have been been rejected by the tendering authority.
8.2. The certificate of successful completion of work, could not have been issued by the concerned authority in favour of the petitioner, as the petitioner, had performed only a part of the work, under an approved sub-contract, the contract for which was given to M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune. The certificate for successful completion of the work of 'Improvement to Wani Kayar Purad Road SH-319 Km 0/00 to 23/500 (Length 23.500 KM) Under CRF Tq. Wani', was given to M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune, and therefore it was M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune, which was entitled to the certificate of successful completion of work, from the concerned Department. That is why the certificate dated 23.12.2022 (page 92), does not state that the work has been successfully competed by the petitioner, but is termed as a quantity Certificate.
27 wp 8433-2023-J.odt 8.3. The expression 'Successfully completed one Work of Similar type & nature', has to relate to completion of the entire work and not a piece or portion of such work, [See : Shapers Construction (P) Ltd. (supra)] for on account of completion of a part of the work, the person, so completing such part, would not become entitled to be issued a certificate of having completed the work. As indicated above it is an admitted position that the work of 'Improvement to Wani Kayar Purad Road SH-319 Km 0/00 to 23/500 (Length 23.500 KM) Under CRF Tq. Wani'', was given to M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune and therefore it was M/s R.K.Chavan Infrastructure Pvt. Ltd., Pune which was entitled to the certificate of successful completion of work, from the concerned Department, which is why such a certificate has not been issued in favour of the petitioner, as the Certificate dated 23.12.2022 (page 92) indicates, as the work was not allotted to the petitioner, in view of which the petitioner would not be entitled to the benefit of certificate issued in favour of R.K.Chavan Infrastructure Pvt. Ltd. [See :Shaikh Wasim Shaikh Firozlala Tamboli (supra)].
9. Even if we consider the reason for rejection that the work done was inadequate, to be not spelt out from the communication by 28 wp 8433-2023-J.odt the Sub-Divisional Engineer, PWD, Wani, however the fact remains that the certificate dated 23.12.2022 (page 92), could not have been accepted by the tendering authority in view of what has been discussed above. That apart even if rejection on this ground is ignored, still as held above, the bid of the petitioner not having complied with the essential condition of having uploaded a 'Firm Purchaser Oder', of the Slip Form Paver, with his bid, the rejection will have to held to be proper.
10. Though it contended by Mr. Bhangde, learned Counsel for the petitioner, that the terms of the NIT, do not prevent considering of work done under sub-contract and it being not the ground for rejection of the bid of the petitioner, and therefore the Court ought not to go into anything else, however we cannot shut our eyes to the manner in which the tendering authority has acted in interpreting the GR dated 27.09.2018 and therefore it was necessary for us to lay down what we understand to be correct position in that regard, so that the tendering authority does not continue to belabour under the same, impression, regarding Clause 4.5.2 of the GR dated 27.09.2018.
29 wp 8433-2023-J.odt
11. Similarly though Mr. Atharva Manohar, learned counsel for the respondent No.7, would be right is saying the requirement of completing a similar nature of work, has to be as an original contractor, on account of which the contractor would be entitled to a successful work completion certificate, and not as a sub-contractor, however, since the tendering authority in this regard, has not raised any objection to the work done by the petitioner under the sub- contract, but has actually understood and accepted it to be permissible under the terms of the NIT, what the tendering authority has understood, should hold the field [See : Sarr Freights Corporation and Agmetal India Private Limited (supra)] and thus we are not dismissing the petition on this count.
12. The contention that since the work order has been issued and in absence of any challenge thereto the petition has to be dismissed on this count alone, of Mr. Atharva Manohar, learned counsel for the respondent No.7, is untenable as the work order has been issued during the pendency of the petition on 29/12/2023, the petition having been filed on 28.12.2023, and the rights of the parties have to be decided as on the date of filing of the petition as rightly contended by Mr. Rahul Bhangde, learned counsel for the 30 wp 8433-2023-J.odt petitioner, by relying upon Carona Ltd., Vs. Parvathy Swaminathan & Sons (supra).
13. The contention that there has been a loss to the public exchequer on account of the improper rejection of the bid of the petitioner which was for a sum of Rs.9.40/- Crores, as against the acceptance of the bid of the respondent no.3, which was for Rs.10.99/- Crores, is a question which has to be looked into in light of what has been held above, that the bid of the petitioner was non- responsive on account of non-compliance with the essential conditions of the terms of the NIT. The plea of loss to the public exchequer can only be considered, had the petitioner been held to have successfully complied with the essential conditions of the tender, however that being not so, the plea of loss to the public exchequer on account of the bid of the petitioner being less than that of the respondent no.3, cannot be considered, more so, as the commercial envelope-2 of the petitioner was never opened, due to the petitioner having held not to have satisfied the technical criteria in terms of the conditions of the NIT.
14. N.G. Projects Limited (supra) as well as Tata Motors Limited (supra) ; Agmatel India Private Limited (supra); M/s 31 wp 8433-2023-J.odt Sterling and Wilson Private Limited (supra) and Silppi Constructions Contractors (supra) have been relied on by Mr. Chauhan, learned Government Pleader for the respondent Nos. 1 to 4/State, there cannot be any quarrel with the propositions as laid down in these judgments, which hold that there should be minimal interference by the Courts in tenderer matters. Though what has been held in N.G. Projects Limited (supra) as contended by Mr. Bhangde, learned counsel for the petitioner, that the scope thereof has been watered down in Jai Bholenath Construction (supra) what is material to note is that the exercise of the powers under Article 226 of the Constitution, cannot be put in a straight jacket formula and can be exercised, where there has been arbitrary, unreasonable or capricious exercise of power, in which case it would be open for this court to interfere. This however would depend on each individual case.
15. Thus considering what has been discussed above, we do not feel that a case of interference has been made out. We therefore do not see any merit in the petition and the same is accordingly dismissed. Considering the circumstances parties to bear their own costs.
32 wp 8433-2023-J.odt
16. Pending application/s, if any, shall stand disposed of accordingly.
(SMT.M. S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.) Khunte Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 29/05/2024 11:30:14