Gauhati High Court
Page No.# 1/28 vs M/S Badri Rai And Company And 3 Ors on 28 February, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/28
GAHC010194652024
2025:GAU-AS:2055
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./170/2024
TRIBENI CONSTRUCTION LTD
TRIBENI COMMERCIAL COMPLEX, 2ND FLOOR GS ROAD, ULUBARI,
GUWAHATI-781001, ASSAM
REP. BY MR. ANUP KUMAR AGARWAL, SON OF LATE M. P AGARWALLA,
AGED ABOUT 43 YEARS, DIRECTOR OF TRIBENI CONSTRUCTION LTD.
RESIDENT OF HOUSE NO. 36, ANIL NAGAR, BYE LANE NO. 4, GUWAHATI
KAMRUP M ASSAM 781024
VERSUS
M/S BADRI RAI AND COMPANY AND 3 ORS
STATION ROAD, P.O. DULIAJAN-786602, DIST. DIBRUGARH, ASSAM,
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE.
2:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY
GOVERNMENT OF ASSAM
ASSAM SECRETARIAT
DISPUR
GUWAHATI-05.
3:THE DEPARTMENT OF PWD
GOVERNMENT OF ASSAM
REPRESENTED BY CHEF ENGINEER
OFFICE OF THE CHIEF ENGINEER
PWD BUILDING
ASSAM
CHANDMARI
GUWAHATI-03.
4:THE SPL. CHIEF ENGINEER
DEPARTMENT OF PWD
PWD BUILDING (HEALTH AND EDUCATION)
Page No.# 2/28
ASSAM
CHANDMARI GUWAHATI-3
For the review petitioner : Mr. I. Chowdhury. ... Sr. Advocate.
Mr. T. Das. .... Advocate.
For the respondent no.1 : Mr. K.N. Choudhury. ...Sr. Advocate.
Mr. P. Buttan. .... Advocate
For the respondent PWD : Mr. B. Gogoi. ... Advocate.
Linked Case : WP(C)/4789/2024
M/S BADRI RAI AND COMPANY
STATION ROAD
P.O. DULIAJAN-786602
DIST. DIBRUGARH
ASSAM
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE CHIEF SECRETARY
GOVERNMENT OF ASSAM
ASSAM SECRETARIAT
DISPUR
GUWAHATI-05.
2:THE DEPARTMENT OF PWD
GOVERNMENT OF ASSAM
REPRESENTED BY CHIEF ENGINEER
OFFICE OF THE CHIEF ENGINEER
PWD BUILDING
ASSAM
CHANDMARI
GUWAHATI-03.
3:THE SPL. CHIEF ENGINEER
DEPARTMENT OF PWD
P.W.D. BUILDING (HEALTH AND EDUCATION)
ASSAM
Page No.# 3/28
CHANDMARI
GUWAHATI-3.
4:TRIBENI CONSTRUCTION LIMITED
TRIBENI COMMERCIAL COMPLEX
2ND FLOOR
G.S. ROAD
ULUBARI
GUWAHATI-781001
ASSAM
------------
For the petitioner : Mr. K.N. Choudhury. ... Sr. Advocate.
Mr. P. Button. .... Advocate.
For the respondent no.4 : Mr. I. Chowdhury. ... Sr.
Advocate. Mr. T. Das. .... Advocate.
For the State respondents : Mr. B. Gogoi. ... Advocate.
Date of hearing : 17.02.2025
Date of Judgment : 28.02.2025
JUDGMENT AND ORDER (CAV)
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
1. Heard Mr. I. Chowdhury, learned Senior Counsel assisted by Mr. T. Das, learned counsel for the review petitioner in Review Petition No.170/2024 arising out of order dated 29.08.2024 allowing WP(C) No. 4034/2024. Also heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. P. Buttan, learned counsel for the writ petitioner in WP(C) 4789/2024 and respondent no.1 in the review petition. Mr. B. Gogoi, learned counsel appears for the PWD in Review Petition no.170/2024 and WP(C) 4789/2024.
2. The two cases are being disposed of by this common judgment and order Page No.# 4/28 in view of the fact that the issue that has arisen pertains to the NIT dated 23.02.2024, for "Construction of Dedicated Training, Monitoring, Administrative Centre "Swasthya Bhawan" (2B+G+8) Storeys at Sixmile, Guwahati (Assam) involving Civil, MEP Works, External Development Works, Ancillary Buildings and including Operation & Maintenance (O&M)."
3. The facts of the case is that the review petitioner and the writ petitioner had both participated in the NIT for the above contract work, by submitting their bid documents before the last date fixed for submission of bids, that was 15.03.2024. The Technical Bids of the tenderers were then opened on 14.06.2024.
4. The writ petitioner "M/s Badri Rai & Company's" Technical Bid was disqualified on 01.08.2024, vide the Bid Evaluation Committee meeting minutes dated 01.08.2024, on the ground that discrepancies were found between the submitted credential documents in respect of the work experience criteria required under Clause 2 of the Instructions to Tenderers (ITT). The Bid Evaluation Committee having come to a finding that the writ petitioner had misrepresented facts in their bid documents, the writ petitioner's Technical Bid was disqualified as per Clause 6(a) of the ITT.
The relevant portion of the bid evaluation committee meeting minutes dated 01.08.2024 states as follows:
"Committee gone through the documents thoroughly and found discrepancies in between the submitted credentials documents for support of Work, Experience criteria as per ITT Clause No. 2 by M/S Badri Rai & Company Station Road PO Duliajan- 786602 Dist-Dibrugarh Assam along with their bid, with the information from Page No.# 5/28 Meghalaya PWD After threadbare discussion the Bid Evolution Committee found that the bidder namely Mrs. Badri Rai & Company: Station Road, P.O. Duliajan 786602 Dist Dibrugarh Vesain has misrepresented their documents. Therefore committee decided to technically disqualify the bidder as per ITT Clause No. 6(a)."
5. The Financial Bids of the remaining valid tenderers were opened on 05.08.2024, wherein the bid of the review petitioner, i.e. "M/s Tribeni Construction Ltd." was found to be the lowest, i.e., L1.
6. The writ petitioner being aggrieved by the disqualification of it's Technical Bid, vide the Bid Evaluation Committee meeting minutes dated 01.08.2024, put the same to challenge vide WP(C) 4034/2024. The writ petitioner's case in WP(C) 4034/2024 was that the writ petitioner had all the requisite experience criteria required of a valid tenderer, as the writ petitioner fulfilled the requirements of Clause 2(a)(i), 2(b)(i) and 2(b)(ii) of the work experience clause provided in the qualifying criteria for the works contracts under Clause-2 of the ITT.
7. The work experience required of a tenderer in terms of Clause 2 states as follows:-
"WORK EXPERIENCE
a) Similar Works Experience The Bidder should have completed in his own name or proportionate share as a member of a Joint Venture, i. at least one (80% of Estimated cost) similar work of minimum value of Rs. 150.761 Page No.# 6/28 Crore during the last 7 (Seven) years prior to the last stipulated date for submission of the Bid OR ii. at least two (60% of Estimated cost) similar works each of minimum value of Rs.
113.07 Crore during the last 7 (Seven) years prior to the last stipulated date for submission of the Bid.
OR iii. at least three (40% of Estimated cost) similar works each of minimum value of Rs. 75.380 Crore during the last 7 (Seven) years prior to the last stipulated date for submission of the Bid.
Works completed prior to the cut-off date shall not be considered.
Similar Works Similar Works shall mean the work of Construction of Institutional residential building(s)/non-residential building(s) with RCC framed structure having minimum G+4 with allied works viz. internal water supply & sanitary installations, internal/external electrical installations, Fire Fighting ete, carried out in India under a single contract (including additional work carried out under the contract), Mumty, machine room and basement shall not to be considered in storey. Own works/ work under the same management/own certification of the bidder shall not be considered.
In case the Bidder (Indian Company) wishes to rely on a work completed abroad, the value of such completed work in foreign convertible currency shall be converted into Indian Rupees. The conversion rate shall be decided by the Tender Inviting Authority based on the rates of currency on the date of completion of work (the bidder to also submit the currency conversion rate as on completion date of the Credential Certificate relied upon by the bidder for the purpose of work experience). Further, such a bidder (Indian Company) should have also completed at least one Similar work of value minimum 60% of estimated cost of work ic Ks.113.07 Cr., in India in the last seven years prior to the last stipulated date for submission of The Bids and also satisfy the similar work experience criteria as stated in the Annuxure-1 Para.
Page No.# 7/28 Physical Experience Criteria i. The Bidder should have completed in his own name at least one Construction of Basement works in last 7 years.
ii.The Bidder in his own name should have completed at least one construction work with 700 nos. Of piles or more 500 mm dia or more and depth of 16 meters or more in single project in last 7 years"
8. The writ petitioner being desirous of participating in the NIT dated 23.02.2024, had submitted it's work experience as required under Clause 2 of the NIT. The writ petitioner thus submitted his documents pertaining to work experience in respect of its work as a Sub-Contractor under the Principal contractor, i.e., the Uttar Pradesh Rajkiya Nimran Ltd. (hereinafter referred to as the 'U.P.Contractor') who had been allotted the construction work for the new Meghalaya Legislative Assembly Building and the IIT, Guwahati.
9. That the U.P. Contractor had been awarded contract work for construction of the new Meghalaya Legislative Assembly Building at the initial estimated value of Rs.127,75,98,465/-. The U.P. Contractor thereafter gave information to the Meghalaya PWD that it intended to engage the writ petitioner as a Sub- Contractor for the contract work, which would be limited to 40% of the contract value i.e. Rs. 51.08 crores. The Meghalaya PWD, vide letter dated 09.07.2020 replied to the U.P. Contractor's letter dated 10.07.2019, stating that the proposal for subletting the contract to the petitioner upto 40% of the contract value, i.e., Rs.51.08 crores, in terms of Clause 39.1 of the ECC had been accepted, subject to certain conditions. Despite the above two letters, the U.P. Contractor had written a letter dated 19.08.2019 to the petitioner issuing a final work order amounting to Rs.85,03,23,212/-. Subsequent to the above, the U.P. Contractor Page No.# 8/28 also issued a certificate dated 24.11.2023, stating that the petitioner had executed the work order for construction of the new Meghalaya Legislative Assembly Building as follows:-
"1) Total value of work awarded: Rs.85,03,23,212.00/-
2) Total value of work completed: Rs.170,67,05,058.00/".
10. The case of the State respondents is that the value of the contract work for building the new Meghalaya Legislative Assembly building was revised from Rs. 127, 75, 98, 465/- to Rs. 242,14,00,000/- . As such, the writ petitioner could only have been awarded sub-Contract work limited to 40% of Rs.242, 14,00,000/-, which would be approximately be less than Rs.100,00,00,000/-. However, as the writ petitioner had submitted the UP Contractor's Certificate dated 24.11.2023, which stated that the petitioner had executed the total work value of approximately Rs.1,70 /- crores, the same cast a doubt as to the authenticity of the documents submitted by the petitioner, with regard to the value of the sub-contract work done by the petitioner for the new Meghalaya Legislative Assembly building.
11. This Court thereafter disposed of WP(C) 4034/2024, after hearing the counsels for the writ petitioner and the PWD. Though the review petitioner had been impleaded as respondent no.4 in WP(C) 4034/2024, no notice had been issued to the respondent no.4. As such, there was no occasion for this Court to have heard the respondent no.4, prior to disposing of WP(C) 4034/2024. This Court, while disposing of WP(C) 4034/2024 vide order dated 29.08.2024, held Page No.# 9/28 that the basic issue to be decided was whether the writ petitioner had submitted false information to the State respondents, along with it's bid documents pertaining to the work experience required of a bidder, in terms of Clause 2(a)
(i), 2(b)(i) and 2(b)(ii) of the ITT.
12. This Court on considering the issues raised in WP(C) 4034/2024, held that though the writ petitioner was a sub-contractor under the Uttar Pradesh Rajkiya Nimran Nigam Ltd. (hereinafter referred to as the 'U.P. Contractor'), who was the Principal Contractor, who had been awarded the contract for construction of the new Meghalaya Legislative Assembly Building, the issue to be decided was not with regard to whether the petitioner could/should have done sub-contract work limited to 40% of the contract work, the issue to be decided was as to whether the writ petitioner had completed sub-contract work worth Rs.170,67,05,058/-. If the petitioner was found to have done the above value of work, the petitioner could be said to have the work experience as required under Clause 2(a) of the ITT. As such, the State respondents were required to verify as to whether the sub-contract work done by the writ petitioner qualified the writ petitioner to participate in the NIT as per 2(a)(i), 2(b)(i) and 2(b)(ii). This Court thus held that the only issue that had to be decided was whether the petitioner had actually done the work amounting to Rs.170,67,05,058/-, as had been stated in the Certificate dated 24.11.2023 issued by the U.P. Contractor. If the State respondents came to a finding that, the writ petitioner had done the work value of Rs.170,67,05,058/- as per certificate dated 24.11.2023 given by the U.P. Contractor, the stand of the State respondents that the petitioner had given a false/ fraudulent information in his bid documents would not attract Clause 6(a) of the ITT. This Court thus held that the disqualification of the writ Page No.# 10/28 petitioner's technical bid was arbitrary and not sustainable, as the reason for disqualification did not come within the ambit of Clause 6 (a) of the ITT.
13. This Court thus set aside the Bid Evaluation Committee meeting minutes dated 01.08.2024, disqualifying the writ petitioner's Technical Bid and directed the Technical Bid Evaluation Committee to re-consider the writ petitioner's technical bid, after the writ petitioner submitted a representation to the State respondents.
14. Pursuant to the order dated 29.08.2024 passed in WP(C) 4034/2024, the writ petitioner submitted a representation dated 02.09.2024, giving reasons as to why it fulfilled the work experience criteria, as required in the NIT/ITT and prayed that a review of the writ petitioner's tender documents should be made. Consequent to the decision of this Court in WP(C) 4034/2024 and the petitioner's representation dated 02.09.2024, the Bid Evaluation Committee held a meeting on 09.09.2024, wherein the writ petitioner's technical bid was reconsidered. The Bid Evaluation Committee thereafter came to a decision that the writ petitioner (M/s Badri Rai & Company) was a sub-contractor and as the work experience criteria provided in Clause 2 of the NIT/ITT required that the similar/physical work experience should have been on the part of the bidder "in his own name", which was lacking on the part of the writ petitioner, as it was a sub-contractor, the writ petitioner's Technical Bid was found to be not qualified. As such, the writ petitioner's Financial Bid remained unopened.
15. Being aggrieved with the Bid Evaluation Committee meeting minutes dated 09.09.2024, by which the petitioner's Technical Bid was rejected on the ground Page No.# 11/28 that the similar/physical work experience required of a bidder was not met/fulfilled by the writ petitioner, the writ petitioner has filed the present writ petition, i.e WP(C) 4789/2024, challenging the Bid Evaluation Committee meeting minutes dated 09.09.2024. The relevant paragraph of the Bid Evaluation Committee Meeting Minutes dated 09.09.2024 states as follows:-
"The bidder M/s Badri Rai & Company has submitted its credentials of similar works experience as follows :
(i) Construction of 160 units G+9 F Type Residential
Towers at IIT G campus amounting to Rs.156.41
crore
(ii) Construction of New Meghalaya Legislative Assembly
Building, Mawdiangdiang, Shillong, amounting to
Rs.170.67 crore
(iii) Construction of DTP Drain Box culverts and allied
works in Dibrugarh from Ch.5625m to 9515m,
amounting to Rs.90.89 crore
Out of three works, the first two works considering their amounts, were checked whether the required criteria in Clause 2 of Qualification Criteria for Similar works experience are fulfilled.
The verification reply letter received from Meghalaya PWD vide letter no. PW/CE/BD/107/2023/15 Dated 23rd July, 2024 for the work "Construction of New Meghalaya Legislative Assembly Building, Mawdiangdiang Shillong"
mentions that M/s Badri Rai & Co was a Sub-contractor. The work was actually awarded to Uttar Pradesh Rajkiya Nirman Nigam Limited (UPRNNL). Similarly, in respect of the qualification criteria in Clause 2(b)(i) of the Bidding Document relating to Physical experience, the Page No.# 12/28 bidder should have completed in its own name at least one Construction of basement work. The experience of the bidder cannot be considered towards fulfillment of this criteria also, as the aforesaid work in Meghalaya is in the form of sub-contract.
In consideration of the above facts, the bidder M/s Badri Rai & Co. cannot be said to have fulfilled the qualifying criteria contained in the Bidding Document. Therefore, the bidder is considered to be technically not qualified. His financial bid shall remain unopened as per the procedure laid down in the Bidding Document."
16. The learned Senior Counsel for the writ petitioner submits that when the writ petitioner's Technical Bid had initially been rejected, on the ground that the writ petitioner had misrepresented facts in their documents in support of their work experience criteria required under Clause-2 of the NIT, vide Bid Evaluation Committee meeting minutes dated 01.08.2024, the subsequent Bid Evaluation Committee meeting minutes dated 09.09.2024 could not have enlarged the scope of rejection of the writ petitioner's Technical Bid, on the ground that a "
sub-contractor" would not come within the bidder "in his own name", in terms of Clause 2(a)(i), 2(b)(i) and 2(b)(ii) of the NIT/ITT, inasmuch as, the same was hit by res-judicata. In this regard, the learned Senior Counsel has relied upon the decisions of the Supreme Court in the case of State of U.P. vs. Nawab Hussain, reported in (1977) 2 SCC 806 and Samir Kumar Majumder vs. Union of India & Others, reported in 2023 SCC OnLine SC 1182.
17. `The petitioner's counsel submits that while the NIT required the bidders not to conceal any information or document which could result in the bidders' disqualification, the review petitioner had withheld information from the State respondents, regarding the fact that there was a criminal case pending against the employees of the review petitioner company and the review petitioner Page No.# 13/28 company itself. He submits that the criminal case is registered as CBI/AC-II/New Delhi (FIR No. RC 2172023A0004 dated 04.02.2023).
18. The learned Senior Counsel for the writ petitioner further submits that Note-VII of Cause 2 of the Work Experience Clause of the ITT/NIT provides that "works carried out by another contractor on behalf of the bidder on a back to back basis will not be considered for satisfaction of the qualification criterion by the bidder". He submits that said Clause only bars the bidder from taking advantage of the contract work done by a sub-contractor and not vice versa.
19. The learned Senior Counsel for the writ petitioner further submits that when the writ petitioner has done a part of the contract work on behalf of the U.P. Contractor, while constructing the new Meghalaya Legislative Assembly Building and the IIT, Guwahati, the work done by the writ petitioner as a sub- contractor would have to be construed to be the work of the writ petitioner as a contractor/bidder "in his own name". He submits that the concept of principal contractor cannot be read into the facts of this case. As the petitioner has done work amounting to 170,67,05,058, as per the certificate issued by the UP Contractor, the disqualification of the writ petitioner's technical bid, vide the Bid Evaluation Committee Meeting Minutes dated 09.09.2024 being arbitrary and unreasonable, should be set aside.
20. The senior counsel for the writ petitioner has also challenged the maintainability of the Review Pet. No. 170/2024, on the ground that the impugned order dated 29.08.2024 passed in WP(C) 4034/2024, had already addressed all the issues sought to be raised by the present review petitioner in Page No.# 14/28 the review petition. As such, the present review petition was unnecessary and the same was a futile exercise. The learned senior counsel submits that in terms of the judgment of the Supreme Court, an error which is not self evident and has to be detected by a process of reasoning cannot be said to be an error apparent on the face of the record, justifying a review. Further, the power of review can be exercised for correction of a mistake, but not to substitute a view. He also submits that review cannot be an appeal in disguise. In support of his submissions, the learned senior counsel has relied upon the judgments of the Supreme Court in the case of Parison Devi vs. Sumitri Devi (1997) 8 SCC 715, Lily Thomas vs. Union of India (2000) 6 SCC 224 and in the case of Kerala State Electricity Board vs. Hitech Electrothermics & Hydropower Ltd. and others (2005) 6 SCC 651.
21. The learned senior counsel for the writ petitioner submits that in terms of the guidelines for banning of business dealings, the NIT states that if a Director or Owner of an agency, proprietor and partner of the firm is convicted by the Court of law for offences involving moral turpitude, in relation to its business dealings with the Government or any other private sector enterprises or PWD (Health & Education), during the last five years and any information/documents, which may result in the tenderer's disqualification, is concealed by the tenderer or any statement/information/documents furnished by the tenderer or issued by a bank/agency/third party and submitted by the tenderer, is subsequently found to be false or fraudulent or repudiated by the said bank/agency/third party, a bidder can be banned from business dealings. The learned senior counsel submits that as a number of employees of the review petitioner company and the company Director having been made an accused in a criminal case under Page No.# 15/28 the Prevention of Corruption Act, 1988, the review petitioner should be banned from having any business dealings with the State respondents.
22. Due to the disposal of WP(C) 4034/2024 vide order dated 29.08.2024, without hearing the respondent No.4/review petitioner, the review petitioner who was the respondent no.4 in WP(C) 4034/2024 has filed the present Review Petition 170/2024, praying for a review of the order dated 29.08.2024 passed in WP(C) 4034/2024. The grounds of challenge to the impugned order dated 29.08.2024 passed in WP(C) 4034/2024, is that the work experience required of a bidder in terms of the NIT at Clause 2(a)(i), 2(b)(i) and 2(b)(ii), required the bidder himself to have done the contract works "in his own name", as the work done as a sub-contractor did not come within the provisions of Clause 2(a)(i), 2(b)(i) and 2(b)(ii). Secondly, the review petitioner who was the respondent no.4 in WP(C) 4034/2024 had not been issued any notice and as such, was not given any opportunity of being heard, prior to disposal of WP(C) 4034/2024. Thirdly, due to the review petitioner not having been heard prior to the disposal of WP(C) 4034/2024, there was an error apparent on the face of record, besides factual errors having been made by this Court in various paragraphs of the impugned order dated 29.08.2024 passed in WP(C) 4034/2024.
23. Mr. I. Choudhury, learned senior counsel for the review petitioner (M/s Tribeni Construction Private Ltd) submits that a tendering authority is bound by it's declared norms and the standards by which it professes its actions to be judged. He also submits that when the author of the tender has taken a view that the work experience required of a bidder is with contracts works done by a contractor "in his own name", a different interpretation cannot be made by this Page No.# 16/28 Court. He submits that the party issuing the tender has the right to enforce the tender terms and Courts should not interfere, even when a legal point is made out. In support of his submissions, the learned senior counsel has relied upon the judgments of the Supreme Court in the case of:-
1. Ramana Dayaram Shetty vs. the International Airport Authority of India and others reported in (1979) 3 SCC 489.
2. Vidarbha Irrigation Development Corporation & Others vs. Anoj Kumar Agarwala & Others, reported in (2020) 17 SCC 577.
3. G.J. Fernandez vs. State 8f Karnataka & Ors reported in (1990) 2 SCC 488.
4. Silppi Constructions Contractors vs. Union of India reported in (2020) 16 SCC 489.
5. M/s N.G. Projects Limited vs. M/s Vinod Kumar Jain reported in (2022) 6 SCC 127.
6. Air India Ltd. vs. Cochin International Airport Ltd., reported in (2000) 2 SCC 617.
24. The review petitioner's counsel further submits that as per the NIT, the work experience clause required the contract work to be done by a bidder "in his own name" and not contract work done as a sub-contractor. As such, the writ petitioner, who was a sub-contractor of the U.P. Contractor in both the Page No.# 17/28 contracts, pertaining to the construction of the new Meghalaya Legislative Assembly Building and the IIT, Guwahati, the writ petitioner could not qualify as a tenderer/bidder "in his own name" in the present NIT, on the work experience criteria required in Clause 2 of the ITT/NIT. Further, the PWD, as the author of similar NITs, when it intended the participation of sub-contractors in the NITs had expressly provided for the participation of a 'sub-contractor'. In support of the same, the learned counsel has relied upon two tender notices issued by the PWD, Government of Assam in the counter-affidavit filed in the writ petition, i.e. WP(C) 4789/2024. However, in the present case, there is no express provision allowing for the participation of a sub-contractor.
25. The learned senior counsel for the review petitioner submits that at the time of filing the FIR dated 04.02.2023, the employees and Director of the review petitioner were not made accused persons. Even in the charge sheet filed on 04.02.2023, the employees and the Director of the review petitioner were not made accused persons. The NIT had been issued on 20.02.2024, while the last date for submission of bids was 15.03.2024. It was only in the supplementary charge sheet dated 26.07.2024 that the members/Director of the review petitioner's company were made accused persons. In any event, the same does not mean that the review petitioner or it's Director were guilty of having committed a crime, inasmuch as, the same was required to be proved before the trial Court. He also submits that the guidelines on banning of business dealings, as reflected in the NIT, shows that the banning could only be done upon conviction and with prospective effect, i.e., future business dealings, as provided in Clause 2.3 of the NIT. As such, no action can be taken against the petitioner in relation to the present NIT or on the allegation of not Page No.# 18/28 submitting correct information and documents along with his bid documents. The learned senior counsel for the review petitioner thus prays that the review petition should be allowed by recalling the impugned order dated 29.08.2024 passed in WP(C) 4034/2024 and to take a decision afresh, on the issue of whether the writ petitioner, who was a sub-contractor of the Principal UP Contractor, constructing the new Meghalaya Legislative Assembly Building, can be said to have the work experience required under Clause 2 of the NIT, as a bidder "in his own name".
26. Mr. B. Gogoi, learned counsel for the PWD submits that the writ petitioner does not have the work experience or physical experience, as required under Clause 2 of the NIT/bidding documents, as the experience certificates submitted by him, pertain to the new Meghalaya Legislative Assembly Building and the IIT, Guwahati, which was awarded to the UP contractor. The writ petitioner was only a sub-contractor for the UP contractor and as such, the certificate issued by the UP contractor in favour of the writ petitioner, showing him to have done the major portion of the UP contractor's contract works, did not change the fact that the writ petitioner was a sub-contractor. As such, the prescription requiring that the bidder should have work/physical experience "in his own name" was not met by the writ petitioner. Mr. Gogoi also submits that he has got no objection to the review petition being allowed, as the review petitioner had not been issued notice prior to disposal of WP(C) 4034/2024 and as such, the review petitioner was required to be heard.
27. I have heard the learned counsels for the parties.
Page No.# 19/28
28. As can be seen from the submissions made by the counsels for the parties and as per the pleadings of the parties, the writ petitioner's technical bid had initially been rejected by the Bid Evaluation Committee Meeting Minutes dated 01.08.2024. The writ petitioner had approached this Court by way of WP(C) 4034/2024 and the same was disposed of, vide order dated 29.08.2024, without hearing the review petitioner, who was the respondent No. 4 in WP(C) 4034/2024 and who had been declared the lowest bidder (L), at the time of opening of the financial bids.
29. This Court had disposed of WP(C) 4034/2024 by directing the Technical Bid Evaluation Committee to re-consider the writ petitioner's Technical Bid on the ground that the issue to be decided was as to whether the writ petitioner had actually done the similar work value as a sub-contractor, in terms of Clause- 2 of the NIT. Consequently, the Bid Evaluation Committee Meeting Minutes dated 01.08.2024 had been set aside. The issue of whether the writ petitioner was a bidder who completed "in his own name" similar work of a certain value was not discussed by this Court, while disposing of WP(C) 4034/2024. The Bid Evaluation Committee thereafter re-considered the case of the petitioner in it's meeting minutes dated 09.09.2024 and came to a finding that the petitioner did not fulfil the requirements of being a bidder "in his own name", as required under Clause-2 of the NIT, as the writ petitioner was only a sub-contractor of the U.P. Contractor.
30. The issue is whether the Review Petition should be allowed as the review petitioner had not been heard, prior to disposal of WP(C) 4034/2024. WP(C) 4034/2024 had been disposed of on the ground that the State respondents Page No.# 20/28 were to verify whether the writ petitioner could be said to have given false/fraudulent information with his bid documents, which would attract Clause 6(a) of the ITT/NIT. The issue as to whether the bidder had done similar work of a certain value "in his own name" in terms of Clause 2 of the ITT/NIT was not decided/considered in the order disposing WP(C) 4034/2024.
31. In the case of Parison Devi (supra), the Supreme Court has held that an error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In the case of Lily Thomas (supra), the Supreme Court has held that the power of review can be exercised for correction of a mistake but not to substitute a view. Only because there was a possibility of two views and the court had chosen to adopt one, can never be a ground for review. A review cannot be an appeal in disguise.
32. In the present case, this Court is of the view that the decisions relied upon by the learned counsel for the writ petitioner for dismissing the review petition is not applicable, inasmuch as, the review petitioner had not been heard prior to disposal of WP(C) 4034/2024 and as such, bypassing of the review petitioner in WP(C) 4034/2024 was not proper.
33. The judgments passed by the Hon'ble Supreme Court in the case of Nawab Hussain (supra) and Samir Kumar Majumder (supra) relating to constructive res-judicata are not applicable to the present review petition, as the review petitioner was not issued any notice, nor was it given an opportunity of Page No.# 21/28 hearing in WP(C) 4034/2024.
34. On considering the fact that the review petitioner had been declared as L1, after opening of the financial bids of the remaining valid tenderers, prior to disposal of WP(C) 4034/2024, this Court is of the view that the principle of audi alteram partem was to be followed by this Court, which was not done. As the said principle was not followed, the review petitioner has made out a case for review. The review petitioner having been declared L1, some rights had accrued to the review petitioner in respect of the contract in question, inasmuch as, there was a legitimate expectation that the contract would be awarded to it. Besides, the review petitioner was a formal/necessary party in WP(C) 4034/2024 and should have been heard. As such, the review petition has to be allowed. Accordingly, the order dated 29.08.2024 passed in WP(C) 4034/2024 is recalled. However, the direction passed in WP(C) 4034/2024 has already been complied with, inasmuch as, the Technical Bid Evaluation Committee has reconsidered the case of the petitioner. The Bid Evaluation Committee, has disqualified the petitioner on the ground that it did not have the work experience required of a bidder "in his own name" in terms of Clause 2 of the NIT, which is reflected in the Bid Evaluation Committee Meeting Minutes dated 09.09.2024. It is the view of this Court that the issue raised in the Bid Evaluation Committee Meetings Minutes dated 09.09.2024 would settle the subject matter in issue between the parties and as such, the said issue is being decided.
35. The question of whether the review petitioner should be banned from having any business dealings with the State respondents on account of not Page No.# 22/28 providing information that they were having a criminal case against them is clarified by the fact that prior to the employees of the review petitioner and its' Director being made accused by way of a supplementary charge-sheet, the last date of submission of bids had already expired. As such, there was no question of not providing information regarding the criminal case. Further, the provisions in the NIT, regarding the guidelines for not having business dealings with a firm, which is having a criminal case involving moral turpitude, only provides for being banned on conviction from prospective business ventures and it cannot relate back to the present NIT. Furthermore, there is no conviction in the criminal case involving the review petitioner as on date
36. The next issue to be decided is as to whether the similar work experience and physical experience required of a bidder "in his own name", required that the works/contract in question should have been in the name of the bidder/Principal contractor or the sub-contractor. In the present case, the writ petitioner (M/s Badri Rai & Company) has submitted the certificates issued by the UP Contractor (Principal Contractor) to the PWD, Government of Assam, to show that it has the work/experience certificate required of a bidder in respect of the NIT. However, the contracts in question, for which the certificate had been issued by the UP Contractor, pertain to construction of the new Meghalaya Legislative Assembly Building and the IIT, Guwahati. Both the works had been awarded to the UP Contractor and as such, the principal contractor for both the works would have to be taken to be the UP Contractor. Though, the writ petitioner may have been given the permission to undertake a sub-contract of the contract works, pertaining to the contract awarded to the principal contractor, the fact remains that the bidder "in his own name" for the above two Page No.# 23/28 works was the UP Contractor. Though the learned counsel for the writ petitioner had taken a stand that the concept of principal contractor does not come into play in respect of the above contracts, this Court is not amenable to the said submission. When there is sub-contract, it is implied that there is a principal contract.
37. In the case of Ramana Dayaram Shetty vs. the International Airport Authority of India and others, reported in (1979) 3 SCC 489 and in the case of Vidarbha Irrigation Development Corporation & Others vs. Anoj Kumar Agarwala & Others , reported in (2020) 17 SCC 577, the Supreme Court has held that the words given in the tender document cannot be ignored or treated as redundant or superfluous, they must be given meaning and their necessary significance.
38. In the case of G.J. Fernandez vs. State of Karnataka & Ors, reported in (1990) 2 SCC 488, the Supreme Court has held that the authority issuing a tender has the right to punctiliously and rigidly enforce the conditions and stipulation in a tender notice.
39. In the case of Silppi Constructions Contractors vs. Union of India, reported in (2020) 16 SCC 489, the Supreme Court has held that in matters of contracts, there should be an exercise of restraint and caution. There must be overwhelming public interest to justify judicial intervention in matters of contracts involving the State and its instrumentalities. The Courts should give way to the opinion of the experts, unless the decision is totally arbitrary or unreasonable. The Court must realise that the authority floating the tender is Page No.# 24/28 the best judge of its requirements and, therefore, the Court's interference should be minimal. The Supreme Court further held that the authority, which floats the contract or tender, and has authored the tender documents, is the best judge as to how the documents have to be interpreted.
40. In the case of M/s N.G. Projects Limited vs. M/s Vinod Kumar Jain, reported in (2022) 6 SCC 127, the Supreme Court has held that the satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. The Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. Para 22 and 23 of the said judgment states as follows:-
"22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona- fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, Page No.# 25/28 such decision does not warrant for interference in a grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present- day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after com- plying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala-fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."
41. In the case of Cochin International Airport Ltd. (supra) , the Supreme Court held at paragraph-7 as follows:
Page No.# 26/28 "7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in R.D. Shetty v.
International Airport Authority, Fertilizer Corporation Kamgar Union v. Union of India, Asstt. Collector, Central Excise v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra, and Raunaq International Ltd. v. I.V.R. Construction Ltd. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene."
42. As can be seen from the various judgments quoted above, the words of a Page No.# 27/28 tender document have to be given their meaning and necessary significance, besides the State respondents having the right to rigidly enforce the conditions stipulated in the tender notice. In the present case, the opinion of the experts regarding the work experience qualification in Clause-2 of the ITT/NIT requires the bidder to have done a contract worth a certain value "in his own name". The writ petitioner was not the contractor/bidder who was awarded the contract work for building the new Meghalaya Legislative Assembly Building or the IIT, Guwahati. It was the U.P. Contractor who was awarded the contracts and as such was the bidder of the said contracts. The Supreme Court has held that the author of the tender document is the best Judge, as to how the documents have to be interpreted and that the Court's interference should be minimal, inasmuch as, the Court does not have the expertise to examine the terms and conditions of the present economic activities of the State. The interpretation of the word 'bidder' "in his own name", is in the opinion of this Court, a technical issue, the interpretation of which should be best left to the decision of the concerned author of the ITT/NIT. Though the writ petitioner has taken a stand that it's bid was much lower than the bid of the review petitioner, the fact remains that the financial bid of the writ petitioner was never opened, as it did not pass the technical bid evaluation stage. As such, no comparison had been made by the State respondents between the financial bid of the writ petitioner and the review petitioner. The issue of the bid of the writ petitioner being lower than that of the review petitioner was known only to the writ petitioner and the same was not a consideration during the evaluation of the writ petitioner's technical bid. In any event, in the case of Cochin International Airport Ltd. (Supra), the Supreme Court has held that price need not always be the sole criteria for awarding a contract.
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43. On considering the fact that the author of the tender documents have interpreted Clause 2 of the NIT, requiring a bidder to have work/physical experience "in his own name", the contract work done by a bidder, would have to be in the name of the writ petitioner as a bidder and not as a sub-contractor. Accordingly, this Court does not find any overwhelming reason to interfere with the interpretation given to the works done by a bidder "in his own name" by the State respondents. There is no reason for this Court to take a different view of the interpretation made by the State respondents. In the case of JARPAL- JPW-DMC vs. The Union of India & Others, WP(C) 4510/2024, this Court had held that as the authority inviting the tender is the best interpreter of the tender and such authority is satisfied as to whether a particular bid satisfies the tender conditions, a Court cannot impose it's decision over the decision of the tender committee. Further, it is not the case of the writ petitioner that the writ petitioner's technical bid had been disqualified, due to extraneous consideration or was mala fide.
44. In view of the reasons stated above and the decisions of the Supreme Court, this Court does not find any ground to interfere with the disqualification of the petitioner's technical bid, in terms of the Bid Evaluation Committee Meeting Minutes dated 09.09.2024. Accordingly, while the review petition stands allowed, the writ petitions are dismissed.
JUDGE Comparing Assistant