Orissa High Court
Ms. Debabrata Samal vs State Of Odisha And Others on 9 May, 2017
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.22315 of 2016
In the matter of an application under Articles 226 and 227 of
Constitution of India.
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M/s Debabrata Samal ...... Petitioner
-Versus-
State of Odisha & others ...... Opp. Parties
For Petitioner : Mr.Milan Kanungo
M/s. S.Mishra & S.R.Mohanty
For Opp. Parties : Addl. Government Advocate
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Heard and disposed of : 09.05.2017
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P R E S E N T:
THE HON'BLE THE CHIEF JUSTICE SHRI VINEET SARAN
AND
THE HON'BLE SHRI JUSTICE K.R. MOHAPATRA
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VINEET SARAN, CJ. In response to the Tender Call Notice dated
12.08.2016issued by opposite party No.2-Chief Engineer (DPI and Roads), Works Department, Bhubaneswar for the work "Improvement of Badachana-Balichandrapur Road From 7/200 KM to 11/980 Km under State Plan" for estimated cost of Rs.5,38,43,202/, the petitioner as well as four other contractors had applied. The technical bids of all the five tenderers were considered by the Tender Evaluation Committee on 18.11.2016. Except the technical bid of the petitioner, the bids of other four 2 bidders were found to be technically disqualified and the petitioner alone was found to be qualified bidder. The proceedings of the Tender Evaluation Committee dated 18.11.2016 reveals that the Committee recommended for cancelation of the tender on the following grounds:
"After detail scrutiny of the bid documents furnished by the bidders and complain and compliance received by this office, the findings of the Committee are as follows:
Sl. Name of the Findings
No Bidder
1. M/s Gourav The bidder has not furnished the existing
Construction, commitment and ongoing works in Schedule-G
Special Class format. Hence, the bidder is disqualified for the
Contractor aforesaid work on the ground of submission of
such false statement of declaration as per Clause 117 outlined in the DTCN
2. M/s Divine The available bid capacity is less than the Construction, required Bid Capacity. Hence, the bidder fails Super Class to meet the eligible criteria as per Clause-122 (f) Contractor of DTCN and hence, disqualified
3. Sri Debarata The bidder has submitted all the required Samal, 'A' Class documents as per the clauses of DTCN. Engineer Contractor
4. Bhagabati Build The bidder has not furnished the ongoing work & Constructions i.e. "Improvement such as widening and (P) Ltd., Super strengthening to Rajngar-Dangamal-Talchua Class Contractor road from 13/315 Km to 17/914 Km in the district of Kendrapara for the year 2015-16 under State Plan" in Schedule-G format. Hence, the bidder is disqualified for the aforesaid work on the ground of submission of such false statement or declaration as per Clause 117 outlined in the DTCN.
5. M/s B.L. The bidder has not furnished valid VAT Construction, Clearance Certificate as per Clause 7 and Super Class 122(b) of the DTCN and hence, disqualified.
Contractor 3 After detailed discussion, the Committee unanimously decided to cancel the tender and retender the work for competitive bidding".
2. Pursuant thereto, the opposite party No.2 cancelled the tender vide its order dated 25.11.2016. This petition is thus filed with the prayer for quashing the recommendation of the Tender Evaluation Committee in its meeting dated 18.11.2016 and for cancelation of bid by order dated 25.11.2016 and to open the financial bid of the petitioner so as to settle the tender in its favour. Pursuant to order dated 25.11.2016, the opposite parties issued fresh tender call notice dated 26.11.2016, which has also been challenged in this writ petition.
3. We have heard Sri Milan Kanungo, learned Senior Counsel appearing along with Sri S.Mishra and Sri S.R.Mohanty, learned counsel for the petitioner, as well as learned Additional Government Advocate appearing for the opposite parties. Pleadings between the parties having been exchanged and on consent of the parties, this writ petition is disposed of at the admission stage.
4. The facts, as narrated above, are not disputed by the parties. It is also admitted by the parties that the Orissa Public Works Department Code (for short, 'OPWD Code') would be applicable to the grant of contracts by the opposite parties. The question to be considered by this Court is as to whether the tender of the petitioner, which was submitted along with four 4 other tenders, but was the only qualified tender, would be considered as single tender or not. The relevant Clause of the OPWD Code is Clause-29. The pre-amended Clause-29 of the OPWD Code is as follows:
"29. When in response to a notice calling for tenders, only a single tender is received the approval of the next higher authority should be obtained if the tender is otherwise in order and is acceptable."
After amendment in the year 2015, the said Clause-29 of the Volume-II of the OPWD Code stands as under:
"29. When in response to a notice calling for tenders, only a single tender is received in the first time, the tender shall be cancelled without opening of the bid and fresh tender be invited publicity. If single tender is received, even after retendering then the approval of the next higher authority should be obtained, if the tender is otherwise in order and acceptable."
5. Prior to 2015, in case of single tender, the approval of next higher authority was to be obtained before accepting the tender. After amendment of the OPWD Code in 2015, the said option of accepting the single tender after obtaining approval of the next higher authority was left open only in the case of retendering, and not in the first tender. As such, if it is held that the tender of the petitioner was to be treated as a 'single tender', then after the amendment of Clause-29 of the OPWD Code 2015, the only option left with the opposite parties is to retender, as even after obtaining approval of the next higher authority, the 5 tender could not have been accepted, as such 'single tender' was in response to the first tender call notice and not retender.
6. The purpose of not accepting the single tender or bid is to ensure competition among the bidders. The exception to accept the single tender is now provided only in case of retendering, where in the initial tendering process also there was a single bid or tender. Thus, the object is very clear that there should be competitive bidding between the parties before the tender is accepted. Merely because five tenders were filed, it would not mean that it is a case of multiple tenders, unless two or more tenders are found to be in order and accepted. If the submission of learned counsel for the petitioner is accepted that since there were five tenders, thus even if only one tender was found to be in order, then too it should not be treated as 'single tender', the same would not serve the purpose as there would be no competitive bid for the work proposed to be done. If there is only one tender which remains valid, and the financial bid of the single tender is to be opened, then there would be absolutely no competitive price bidding and if the same is accepted, it would actually amount to be a case of 'single tender', even though there may have been five tenderers at the threshold, out of which one remains valid.
7. Similar view was taken by a Division Bench of this Court in the case of Arun Kumar Mohanty Vs. State of Odisha 6 [W.P.(C) No.13334 of 2014 decided on 27.08.2014], wherein when only one tender was found to be valid and others were rejected on technical grounds, then the Technical Evaluation Committee had recommended for approval of next higher authority and consequently the Collector rejected the said tender process and directed for retendering. In such circumstances, the Division Bench of this Court found the action of the Collector to be correct as it held that the "the tender of the petitioner had been reduced to single tender".
Another Division Bench of this Court in the case of M/s Kalinga Order Supplier Vs. State of Orissa, reported in 2014 (I) ILR-CUT 382, has also taken the similar view. In almost similar facts, the Hon'ble Supreme Court in a recent decision reported in AIR 2016 SC 3366 (State of Jharkhand and others Vs. M/s CWE-SOMA Consortium) has also held that even though several tenders may have been filed, but when only one tender was found to be valid, the same should be treated as 'single tender'.
8. Learned counsel for the petitioner has vehemently argued that in the similar cases the same Tender Evaluation Committee has accepted the single tender, which was found to be valid, even though other tenders filed for the same work were found to be disqualified. In his support, learned counsel has relied on certain decisions of the Tender Evaluation Committee 7 filed along with the additional affidavit. He also relied upon a communication of the Government of Odisha in Works Department dated 6th December, 2014, wherein the Government has written to the Chief Engineer in a particular case, where there were two tenders and only one tender qualified, then the same could be accepted in terms of the OPWD Code, and the same was not to be treated as 'single tender' since two numbers of bids were received in response to the tender call notice. It is noteworthy that the aforesaid communication was in a particular case which was being considered by the Government, and cannot be taken as a rule, as the same would be against the provisions of the amended OPWD Code. The said order was also not passed after taking into consideration the judgment passed by this Court, referred to above.
9. It has been submitted by learned counsel for the petitioner that the cases being considered by the High Court were not covered by the OPWD Code, whereas the Tender Evaluation Committee, while deciding the matter in other cases, has after considering the OPWD Code, decided and confirmed the tender even in case where only one tender is found to be valid. The same cannot be treated as a precedent as we have already held hereinabove that in view of the provisions of the OPWD Code, in the given facts, the tender of the petitioner is to be treated as a 'single tender'.
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10. In view of the aforesaid facts of the case, we hold that the bid of the petitioner is to be treated as 'single tender', and further hold that even when there may be several tenders filed, but only a single tender is found to be qualified, the same should be treated as 'single tender', as there would be no competitive price bidding. As such, according to amended Clause-29 of the OPWD Code, in case of there being 'single tender', as in the present case, the opposite party No.2 has no option but to cancel the tender and direct for retendering, which has been so done. Accordingly, the reliefs prayed for in the present writ petition do not deserve to be granted. The writ petition stands dismissed.
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(VINEET SARAN ) CHIEF JUSTICE ...............................
(K.R. MOHAPATRA) JUDGE Orissa High Court, Cuttack.
Dated the 9th May, 2017/ss/bks