Uttarakhand High Court
M/S Panch Ghati Construction vs State Of Uttarakhand & Others on 9 January, 2020
Equivalent citations: AIR 2020 UTTARAKHAND 135, AIRONLINE 2020 UTR 139
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No.3697 of 2019
M/s Panch Ghati Construction ....Petitioner
Versus
State of Uttarakhand & others .......Respondents
Present:- Mr. D.S. Patni, Senior Advocate assisted by Mr. Dharmendra Barthwal,
Advocate, for the petitioner.
Mr. Anurag Bisaria, Standing Counsel, for the State/respondent no.1.
Mr. S.S. Chauhan, Advocate for respondent nos.2, 3 & 4.
Mr. Subhash Upadhyaya, Advocate, for respondent no.6.
Hon'ble Sudhanshu Dhulia, J. (Oral)
The petitioner has applied for a works contract for construction of a road, namely, Paperseli-Balta Motor Road to Bintola MR Stage-I, in which the petitioner has been declared technically non-responsive and his financial bid has not been opened.
2. By an interim order of this Court dated 05.12.2019, the respondent authorities have been restrained to proceed further with the bid process. However, by that time the financial bid had been opened. According to the petitioner, his bid is Rs.30,00,000/- (Rupees Thirty Lakh Only) lower than the bid of L-1 i.e. respondent no.6.
3. But that is not the main issue before this Court. The only ground on which the petitioner has been declared technically disqualified is that the bank draft which was submitted by the petitioner in the form of bid security, which is to the tune of Rs.6,36,000/- (Rupees Six Lakh Thirty Six Thousand Only), and which was to be given by each of the bidders, was to be given in the name of "EE 2 PIU Almora-2". However, the draft submitted by the petitioner as security was in the name of "EE PMGSY Div Almora".
4. The learned Senior Counsel for the petitioner, however, contends that there is no clarity in the bidding document as to in what name the bank draft has to be drawn. Even the order dated 25.11.2019, by which the petitioner has been declared non-responsive states that the petitioner should have given the bid security in the name of "EE PMGSY PWD Almora-2". Hence, while rejecting the claim of the petitioner, the only ambiguity declared in the draft is that petitioner has not written "2" after "Almora", all other details were given.
5. This the petitioner alleges is in any case an extremely minor discrepancy and submits that it is liable to be ignored.
6. Learned counsel for respondent nos.2 to 4, on the other hand, submit that in the bid documents itself, it was clearly stated that the bid security was to be given in the name of "EE PIU Almora-2" and there are three Divisions and if the Division is not properly mentioned as "Almora-2", the form is liable to be rejected as per Clause 16.1 and 16.2 of the Bidding Document.
7. From the perusal of the Bidding Document, it appears that the bid security was in Clause 16.2 and that has to be given in the name of "EE PIU Almora-2", but while rejecting the claim of the petitioner, it has been stated that the petitioner has not given the bid security in the name of "EE, PMGSY, PWD, Almora 2".
38. Learned Senior Counsel for the petitioner has also pointed out that in the tender details in one column it has been written as "EMD" payable to "EE PMGSY Div Almora". Therefore, at different places, the employer itself has asked the demand draft security to be drawn in different places. Though on closer look of the documents, it has been revealed that indeed the draft has to be given in the name of "EE PIU Almora-2" and there is definitely a mistake on the part of the petitioner but it must also be said that even the respondent/employer has not been clear while asking for specification from the eligible bidders.
9. This Court in the case of Alstom Hydro France Vs. Tehri Hydro Development Corporation & Another, reported in AIR 2009 Uttarakhand 61 has held that the bidding document which asks for detail from a prospective bidder must be clear and unambiguous. In this case it is not clear.
10. In view thereof, the writ petition is allowed. The order dated 25.11.2019 passed by Tender Technical Evaluation Committee/respondent no.3 is hereby quashed and set aside.
11. However, this does not mean that the respondent authorities are liable to accept the bid of the petitioner as it is only in the nature of an offer and under the facts and circumstances of the case, the respondent authorities would always be at liberty to call for a fresh bid.
(Sudhanshu Dhulia, J.) 09.01.2020 Nitesh/