Gujarat High Court
Ascent Electrification Engineers vs Indian Institute Of Management, ... on 16 December, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2493/2021 ORDER DATED: 16/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2493 of 2021
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ASCENT ELECTRIFICATION ENGINEERS
Versus
INDIAN INSTITUTE OF MANAGEMENT, AHMEDABAD
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Appearance:
JIGER K MEHTA(7548) for the Petitioner(s) No. 1
MR NANDISH Y CHUDGAR(2011) for the Respondent(s) No. 1
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 2
PRANAV D THAKKAR(8501) for the Respondent(s) No. 2
VIJAYKUMAR B LIMBACHIYA(8763) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 16/12/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)
1. By way of this Writ Application filed under Article 226 of the Constitution of India, the writ applicant has approached this Court, challenging the action of the respondent No.1 - Indian Institute of Management, Ahmedabad in disqualifying the writ applicant from the tender process being Tender No.IIMA/Contracts/TW-38/2020 and also sought direction to open the price bid of the writ applicant.
2. The facts giving rise to the present Writ Application are as Page 1 of 8 Downloaded on : Wed Jan 12 11:00:45 IST 2022 C/SCA/2493/2021 ORDER DATED: 16/12/2021 under:
2.1 The respondent No.1 - Indian Institute of Management, Ahmedabad invited the tender being Tender No.IIMA/ Contracts/TW-38/2020 dated 3.11.2020 for Electrical work and Electrical Low Voltage of Louis Kahn buildings, Faculty block at main campus IIM, Ahmedabad.
2.2 The writ applicant, being interested in the aforesaid work contract, submitted all the details online with necessary annexures and documents.
2.3 Initially, 6 bidders including the writ applicant submitted their bids. It appears that the technical committee, while undertaking the technical evaluation, sought some details from the writ applicant with regard to the earlier contract, which came to be furnished by the writ applicant accordingly. 2.4 On 11.1.2021, the respondent No.1 opened the name of unsuccessful bidders in technical evaluation, wherein the name of the writ applicant was not declared as successful bidder in Page 2 of 8 Downloaded on : Wed Jan 12 11:00:45 IST 2022 C/SCA/2493/2021 ORDER DATED: 16/12/2021 technical evaluation.
2.5 It appears that the respondent No.2 - M/s. Evercast Projects Pvt. Ltd. found as L1, as it quoted Rs.2,59,83,893/- and accordingly, on 17.2.2021, the work order came to be issued. 2.6 As per the writ applicant, the price bid submitted by it was Rs.2,58,50,103.97 ps. which was lowest than the L1. Thus, being aggrieved by the aforesaid, this Writ Application has been filed by the writ applicant.
3. We have heard Mr.Jigar K. Mehta, the learned counsel appearing for the writ applicant and Mr.Nandish Chudgar, the learned counsel appearing for the respondent No.1 and Mr.Pranav D. Thaker, the learned counsel appearing for the respondent No.2.
4. Mr.Jigar K. Mehta, the learned counsel appearing for the writ applicant, submitted that the action on the part of respondent No.1 in disqualifying the writ applicant without assigning any reason is most arbitrary and, therefore, the same Page 3 of 8 Downloaded on : Wed Jan 12 11:00:45 IST 2022 C/SCA/2493/2021 ORDER DATED: 16/12/2021 deserves to be quashed by this Court. Mr.Mehta submitted that had the writ applicant not been disqualified in technical evaluation, his quote would have been lowest than the L1 declared by the respondent No.2. He, therefore, submitted that because of arbitrary action undertaken by the respondent No.2, the public exchequer has suffered. He further submitted that the writ applicant is "A" Class registered Government approved contractor and is well qualified than the respondent No.2 i.e. L1. However, only with a view to help the respondent No.2, the writ applicant has been arbitrarily disqualified from the technical evaluation process. Mr.Mehta, therefore, submitted that the action of the respondent No.1 is thereby of nepotism. In view of the aforesaid, the writ applicant urged to this Court that the action of the part of respondent No.1 disqualifying the writ applicant deserves to be quashed and set aside and further, requested to issue consequential order and/or direction appropriately.
5. Per contra, Mr.Nandish Chudgar, the learned counsel appearing for the respondent No.2, has vehemently opposed the writ application. Mr.Chudgar submitted that the present writ applicant has been declared unsuccessful in the technical Page 4 of 8 Downloaded on : Wed Jan 12 11:00:45 IST 2022 C/SCA/2493/2021 ORDER DATED: 16/12/2021 evaluation bid because the writ applicant could not secure cut-
off marks of 70 so as to qualify and enter the second round of financial bid. Learned counsel submitted that the work in question is a complex work involving many technicalities from the engineering point of view. Thus, the Technical Committee was constituted so as to verify the technical bids of the bidders, however, as stated herein-above, the writ applicant could not secure minimum cut-off marks in technical qualification analysis held by the experts of the committee. Mr.Chudgar submitted that over and above, the respondent No.1 had bitter experience with the writ applicant in earlier contract where he was declared as L1 but, he withdrew from the said contract. Mr.Chudgar further submitted that even in the instant tender process, the writ applicant vide e-mail dated 1.1.2021 informed the respondent No.1 that in the tender, by mistake, he had submitted the price bid without considering the GST amount and without filling up the GST column. Mr.Chudgar, therefore, submitted that the approach of the writ applicant was so casual, coupled with the fact earlier bad experience, the respondent No.1 lost confidence on the writ applicant and thereby, disqualified the writ applicant from the technical bid. In view of Page 5 of 8 Downloaded on : Wed Jan 12 11:00:45 IST 2022 C/SCA/2493/2021 ORDER DATED: 16/12/2021 the aforesaid, Mr.Chudgar submitted that the nature of work is of a complex nature and involving many technicalities from the engineering point of view and thereby, having lost the confidence in the writ applicant, the respondent No.1 has rightly disqualified the writ applicant from the tender process. Learned counsel, therefore, requested this Court to dismiss the writ application.
6. We have heard the learned counsel appearing for the respective parties. No other submissions have been made by the respective counsel, except what is stated herein-above.
7. Having considered the submissions of the respective parties and having gone through the records of the case, the question that has come up for our consideration is whether the writ applicant has been rightly disqualified at the stage of technical bid evaluation or not?
8. At the outset, it is pertinent to note that the writ applicant had participated in a tender floated by the very respondent No.1 in the year 2019, wherein although he was declared as L1, but for some reasons, he had backed out and withdrawn from the Page 6 of 8 Downloaded on : Wed Jan 12 11:00:45 IST 2022 C/SCA/2493/2021 ORDER DATED: 16/12/2021 tender process. It is also pertinent to note that the nature of work of a tender is highly complex in nature involving many technicalities from the engineering point of view. Thus, the expert body came to be constituted and the expert body was required to allot marks to the respective bidders while undertaking technical bid evaluation of the respective bidders. It was further decided that those who obtained minimum 70 marks, would be further eligible for the financial bid. In the case of writ applicant, the technical expert committee evaluated the technical bid of the writ applicant and assigned only 56.25% marks which is less than 70 marks which was the bare minimum requirement for the eligibility for further financial bid process.
9. In view of the aforesaid, we are not inclined to sit over the judicial review of the technical expert committee's decision with regard to the evaluation undertaken of the writ applicant's technical bid, exercising power under Article 226 of the Constitution of India. We also find that the respondent No.1 had a bad experience with the writ applicant in past and even in the present tender also, the financial bid of the writ applicant as envisaged from its own e-mail dated 1.1.2021, serious mistakes have been committed by not mentioning anything about GST Page 7 of 8 Downloaded on : Wed Jan 12 11:00:45 IST 2022 C/SCA/2493/2021 ORDER DATED: 16/12/2021 amount. According to us, the approach of the writ applicant appears to be very casual in nature. Therefore, when the respondent No.1 has already lost his confidence upon the writ applicant, in such circumstances, it would not be desirable that we direct the respondent No.1 to consider the writ applicant as qualified in technical bid. The eligibility of the writ applicant considered by the expert committee and the past incident as well as casual approach in submitting the price bid would itself suggest that the writ applicant is not worthy to be considered for such a nature of work, involving high technicalities in nature.
10. In view of the aforesaid discussion, the present writ application is bereft of any merits and thereby, liable to be dismissed and is hereby dismissed accordingly, with no order as to costs. Notice is discharged. Interim relief, if any, granted earlier stands vacated, forthwith.
(J. B. PARDIWALA, J) (NIRAL R. MEHTA,J) V.J. SATWARA Page 8 of 8 Downloaded on : Wed Jan 12 11:00:45 IST 2022