Orissa High Court
Afr vs State Of Odisha & Others ........ Opp. ... on 2 August, 2018
Author: Vineet Saran
Bench: Vineet Saran
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.2698 of 2018
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR M/s Rutuparna Construction ........ Petitioner versus State of Odisha & others ........ Opp. Parties For Petitioner : M/s B.K.Routray, R.P.Mohapatra, A.Routray, B.Panigrahy, K.C.Rath, R.K.Bhoi and K.C.Sahoo, Advocates For Opp. Parties : Mr. B.P. Pradhan, Addl. Government Advocate (O.Ps. No.1 to 4) M/s Sidharth Prasad Das and L.N.Sahoo, Advocates (O.P. No.6) PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HON'BLE DR. JUSTICE B.R.SARANGI Decided on : 02.08.2018 VINEET SARAN,CJ. The Superintending Engineer, P.H. Circle, Cuttack-opposite party no.3 invited Percentage Rate Bid 2 through e-procurement, vide Bid Identification No. SEPHCTC- 05/2017-18 dated 30.10.2017, in conformity with the terms and conditions mentioned therein, for the work "Laying of Distribution System in Un-covered Areas and Laying of dedicated feeder Line from Chandabali Chhak to Banikanthnagar and Hemamalapur in Athagarh Town". The Detailed Tender Call Notice (DTCN), which contained two bid system (Part-I:General and Technical Bid and Part-II: Price Bid), invited bids from 'B' Class or 'A' Class contractors registered with the State Government and contractors of equivalent grade/class registered with Central Government/ any other State Government/MES/Railways and Reputed Engineering Firms fulfilling minimum eligibility criteria as prescribed in the DTCN itself. The bid was directed to be submitted on-line by eligible class of contractors. The bidders were to have the necessary Portal Enrolment (with their own digital signature certificate). The approximate value of the work was Rs.136.64 lakhs and EMD Rs.1.37 lakhs. The cost of documents was Rs.10,000/- which should be deposited by 3 way of demand draft in favour of Executive Engineer, P.H. Division-II, Cuttack and the required period of completion was 4 (four) months. The last date/time of receipt of bids in the portal was 22.11.2017 up to 5.00 P.M. and the date and time of opening of bids was 25.11.2017 at 12.30 P.M.
2. The petitioner, being a registered 'A' Class contractor and otherwise eligible in all respects, pursuant to the conditions stipulated in the DTCN, submitted his bid for the aforesaid work with all required documents. Besides the petitioner, opposite party no.5-Raghumani Sethi and opposite party no.6-Saroj Kumar Singh also submitted their bids. On opening of the technical bids, the petitioner, as well as opposite parties no.5 and 6, having been qualified, their financial bids were opened in which petitioner was found L-1, having quoted 3.06% less than the tender value, whereas opposite party no.5 was found the second lowest bidder. The tender inviting authority-opposite party no.3, did not issue work order in respect of first lowest bidder, the petitioner herein. Instead of doing so, opposite party no.3 decided to 4 award the work in favour of opposite party no.5, on the ground that he belonged to Scheduled Caste community, hence this writ petition.
3. Mr. B.K. Routray, learned counsel for the petitioner contended that all the three tenderers, being found to be technically qualified, their price bids were opened, in which the price of the petitioner was found to be lowest at 3.06% less than the estimated cost. The price offered by opposite party no.5-Raghumani Sethi was 0.00% less than the estimated cost, that means, at par with the estimated cost, and the price offered by opposite party no.6-Saroj Kumar Singh was 4.99% above the estimated cost. The estimated cost of the work in question being Rs.136.64 lakhs, the offer of the petitioner, which was at 3.06% less, came to Rs.132.45 lakhs. But opposite party no.3, instead of awarding the work in favour of the petitioner, on 20.01.2018 awarded the same in favour of opposite party no.5, illegally, arbitrarily and unreasonably by calling opposite party no.5 for negotiation, at the price which was offered by the petitioner, 5 i.e., 3.06% less than the estimated cost, as he is a Scheduled Caste Contractor. Therefore, interference of this Court is warranted.
4. Mr. B.P. Pradhan, learned Additional Government Advocate, with reference to the pleadings made in the counter affidavit filed by opposite party no.3, justified the action taken by the authorities. It is contended that following Sl. No.7 of Executive Instructions regarding calling for and acceptance of tender in e-procurement of Govt. of Odisha, vide Office Memorandum No.7885/W dated 23.07.2013, which is a part of DTCN and Statutory Govt. Instruction for granting of concession to Scheduled Caste and Scheduled Tribe Contractors in relaxation of Rule-18 of OGFR, Vol-1 and Para-3.4.14 of OPWD Code vide Govt. Resolution No.16/37-27748 dated 11.10.1977 of Govt. of Odisha at Para
(a), Raghumani Sethi-opposite party no.5, who belonged to Scheduled Caste category and whose rate was within 10% of the rate quoted by L-1 bidder, the petitioner herein, for the work in question was accepted, after negotiating his quoted 6 rate to that of the 1st lowest bidder. Accordingly, the agreement was executed with opposite party no.5, vide Agreement No.424 P1/2017-18, and the work order was issued, vide letter No.1068 dated 07.02.2018, by Executive Engineer, P.H. Division-II, Cuttack-opposite party no.4. Consequentially, the work has already been started by opposite party no.5 in shape of procurement of pipes. Therefore, no illegality or irregularity has been committed in awarding the work in question in favour of opposite party no.5, and as such, the evaluation has been made in strict adherence to statutory Government Instructions, Codal Provisions/Rules and e-procurement guidelines, for which the same may not be interfered with at this stage.
5. Notices were issued to opposite parties no.5 and 6 and the same were made sufficient against them. But, opposite party no.5 did not choose to appear and opposite party no.6 appeared through Sri S.P. Das, learned counsel who states that opposite party no.6 is a formal party and does not propose to file any counter affidavit. 7
6. We have heard Mr. B.K.Routray, learned counsel for the petitioner, Mr. B.P.Pradhan, learned Addl. Government Advocate for the State-opposite parties no. 1 to 4 and Mr. Sidharth Prasad Das, learned counsel for opposite party no.6 and have perused the record.
7. On 6.4.2018, a detailed interim order was granted to the effect that no agreement be executed in favour of opposite party no.5 in pursuance of the order dated 20.1.2018.
8. Admittedly, the petitioner is a general caste contractor whereas opposite parties no. 5 and 6 are Scheduled Caste contractors. In the counter affidavit filed by the State-opposite parties, it is contended that the benefit of the notification of the State Government dated 11.10.1977 is to be given to the Scheduled Caste contractors, according to which 10% price benefit is to be given to such class contractors, meaning thereby that when the offer of the Scheduled Caste contractor is at par with the estimated cost, the same is to be treated as 10% less than the estimated 8 cost. Since the opposite party no.5 is a Scheduled Caste contractor, his offer has been treated as lowest and after negotiation, the contract has been awarded to him, not at par with the estimated cost but at par with the offer made by the petitioner, which was 3.06% less than the estimated cost.
9. From the record, it is clear that the notification dated 11.10.1977 was not specifically made applicable to the present Tender Call Notice. In the absence of the notification dated 11.10.1977 having been made applicable, which grants benefit of 10% price preference in favour of Scheduled Caste and Scheduled Tribe contractors, the benefit of the said notification cannot be given to the Schedule Caste candidates for awarding contract in pursuance of such Tender Call Notice, which did not specifically make the notification applicable.
10. A Division Bench of this Court has, by judgment and order dated 18.12.2017 passed in W.P.(C) No. 20802 of 2017 (Tarun Mohanty Vrs. State of Odisha and others), specifically held that in the absence of the Tender Call Notice specifying the applicability of the 9 notification dated 11.10.1977 granting benefit of 10% price preference to the Scheduled Caste and Scheduled Tribe contractors, the said benefit cannot be given.
11. Nothing has been placed on record with regard to applicability of the codal provision, notification issued by the Government granting relaxation to Scheduled Caste and Schedule Tribe contractors nor the learned Additional Government Advocate has pointed out for extension of benefit to the Scheduled Caste and Scheduled Tribe contractors with reference to DTCN issued by opposite party no.3. In such view of the matter, when the notification dated 11.10.1977 is not applicable in the present case, no such benefit could have been given to the opposite party no.5, who is a Scheduled Caste contractor. Once the price offered by the petitioner was the lowest, which was 3.06% less than the estimated cost, there was no occasion for the State-opposite parties to invite opposite party no.5 for negotiation and thereafter on the opposite party no.5 matching the price offered by the petitioner, award the contract in favour of opposite party 10 no.5. As such, the acceptance of the offer of opposite party no.5 to work at 3.06% less than the estimated cost put to tender is totally illegal and liable to be quashed. The contract if any, awarded to opposite party no.5 is thus to be quashed and is accordingly quashed, and it is directed that the petitioner would be entitled to be awarded the said contract.
12. The writ petition stands allowed to the extent indicated above.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R.SARANGI) JUDGE Orissa High Court, Cuttack The 2nd August, 2018/DM/Alok True Copy P.A.