Rajasthan High Court - Jodhpur
M/S. M.S. Rathore & Company vs State & Ors on 2 December, 2016
Author: Sandeep Mehta
Bench: Sandeep Mehta
CIVIL WRIT (CW) No. 10280 of 2016
a/w 7 other connected matters
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
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1. CIVIL WRIT (CW) No. 10280 of 2016
PETITIONER :
M/s M.S. Rathore & Company, 290, Gandhi Nagar,
Barmer (Raj.), through its proprietor Sh. Magar Singh
S/o Sh. Sang Singh, aged 42 years, Resident of 290,
Gandhi Nagar, Barmer (Raj.)
VERSUS
RESPONDENTS :
1. State of Rajasthan through the Secretary to the
Government, Public Works Department
Secretariat, Jaipur.
2. Chief Engineer (P.M.G.S.Y.), Public Works
Department, Jaipur.
3. Superintending Engineer, Public Works
Department, Circle Barmer, District: Barmer.
2. CIVIL WRIT (CW) No. 9081 of 2016
PETITIONER :
M/s Bharti Construction Co. through its authorized
representative Harsh Sanghvi S/o Shri Lalit Kumar
Sanghvi, Age- 28 years, R/o Opposite Kushalbagh
Hotel, Banswara (Raj.)
VERSUS
RESPONDENTS :
1. State of Rajasthan, Through Secretary, Public
CIVIL WRIT (CW) No. 10280 of 2016
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2
Works Department, Government of Rajasthan,
Jaipur (Raj.).
2. Chief Engineer, (PMGSY) Public Works Department
Rajasthan, Jaipur.
3. Additional Chief Engineer, Public Works
Department, Udaipur Zone, Udaipur (Raj.).
3. CIVIL WRIT (CW) No. 9082 of 2016
PETITIONER :
M/s Bharti Construction Co. through its authorized
representative Harsh Sanghvi S/o Shri Lalit Kumar
Sanghvi, Age- 28 years, R/o Opposite Kushalbagh
Hotel, Banswara (Raj.)
VERSUS
RESPONDENTS :
1. State of Rajasthan, Through Secretary, Public
Works Department, Government of Rajasthan,
Jaipur (Raj.).
2. Chief Engineer, (PMGSY) Public Works Department
Rajasthan, Jaipur.
3. Additional Chief Engineer, Public Works
Department, Udaipur Zone, Udaipur (Raj.).
4. CIVIL WRIT (CW) No. 9242 of 2016
PETITIONER :
M/s Bharti Construction Co. through its authorized
representative Harsh Sanghvi S/o Shri Lalit Kumar
Sanghvi, Age- 28 years, R/o Opposite Kushalbagh
Hotel, Banswara (Raj.)
CIVIL WRIT (CW) No. 10280 of 2016
a/w 7 other connected matters
3
VERSUS
RESPONDENTS :
1. State of Rajasthan, Through Secretary, Public
Works Department, Government of Rajasthan,
Jaipur (Raj.).
2. Chief Engineer, (PMGSY) Public Works Department
Rajasthan, Jaipur.
3. Additional Chief Engineer, Public Works
Department, Udaipur Zone, Udaipur (Raj.).
5. CIVIL WRIT (CW) No. 9243 of 2016
PETITIONER :
M/s Bharti Construction Co. through its authorized
representative Harsh Sanghvi S/o Shri Lalit Kumar
Sanghvi, Age- 28 years, R/o Opposite Kushalbagh
Hotel, Banswara (Raj.)
VERSUS
RESPONDENTS :
1. State of Rajasthan, Through Secretary, Public
Works Department, Government of Rajasthan,
Jaipur (Raj.).
2. Chief Engineer, (PMGSY) Public Works Department
Rajasthan, Jaipur.
3. Additional Chief Engineer, Public Works
Department, Udaipur Zone, Udaipur (Raj.).
6. CIVIL WRIT (CW) No. 9523 of 2016
PETITIONER :
M/s M.S. Rathore & Company, 290, Gandhi Nagar,
CIVIL WRIT (CW) No. 10280 of 2016
a/w 7 other connected matters
4
Barmer (Raj.), through its proprietor Sh. Magar Singh
S/o Sh. Sang Singh, aged 42 years, Resident of 290,
Gandhi Nagar, Barmer (Raj.)
VERSUS
RESPONDENTS :
1. State of Rajasthan through the Secretary to the
Government, Public Works Department
Secretariat, Jaipur.
2. Chief Engineer (P.M.G.S.Y.), Public Works
Department, Jaipur.
3. Superintending Engineer, Public Works
Department, Circle Barmer, District: Barmer.
7. CIVIL WRIT (CW) No. 9524 of 2016
PETITIONER :
M/s Shri Tripura Construction through its Proprietor
Jagdish Chandra Labana S/o Shri Daya Lal ji Labana,
Age-36 years, R/o Village/ Post- Bicchiwara, Tehsil-
Bicchiwara, District- Dungarpur (Raj.).
VERSUS
RESPONDENTS :
1. State of Rajasthan, Through Secretary, Public
Works Department, Government of Rajasthan,
Jaipur (Raj.).
2. Chief Engineer, (PMGSY) Public Works Department
Rajasthan, Jaipur.
3. Additional Chief Engineer, Public Works
Department, Udaipur Zone, Udaipur (Raj.).
CIVIL WRIT (CW) No. 10280 of 2016
a/w 7 other connected matters
5
8. CIVIL WRIT (CW) No. 9642 of 2016
PETITIONER :
M/s Nagin Lal Patel through its Proprietor Nagin Lal
Patel S/o Shri Kamalji Patel, Age- 50 years, R/o Village-
Malpur, Behind New Hospital, Dungarpur (Raj.).
VERSUS
RESPONDENTS :
1. State of Rajasthan, Through Secretary, Public
Works Department, Government of Rajasthan,
Jaipur (Raj.).
2. Chief Engineer, (PMGSY) Public Works Department
Rajasthan, Jaipur.
3. Additional Chief Engineer, Public Works
Department, Udaipur Zone, Udaipur (Raj.).
Date of Judgment : 2.12.2016
HON'BLE MR. SANDEEP MEHTA,J.
MR. SANDEEP SHAH ) for the Petitioners.
MR. PS CHUNDAWAT )
DR. PS BHATI, AAG ) for the Respondents
MR. MUKESH DAVE )
MR. ASHOK CHHANGANI )
JUDGMENT
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The instant bunch of writ petitions involves common questions of facts and law and is thus being decided together by this single order.
The petitioners herein are all contractors/firms CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 6 registered with the State Government who submitted their bids in a tender processes initiated by the respondent Public Works Department for construction/ upgradation of roads in various Districts of Rajasthan under the Pradhan Mantri Gram Sadak Yojana (for short, 'PMGSY'). NITs were issued on 25.4.2016 and online bids were invited for a total of 538 works falling under PMGSY. Initially the stipulated date of receiving the bids was 28.6.2016 and that of opening of bids was 30.6.2016 but thereafter, vide notification dated 23.6.2016, these dates were changed to 8.7.2016 and 11.7.2016 respectively. The petitioners herein submitted their online bids for different stretches of roads. However, the online bids submitted by the petitioners were rejected by the respondents for not uploading their Employees Provident Fund Organisation Registration Certificates (for short 'EPFO registration certificates') with the bids resulting into non- compliance of Clauses 3 & 4.1.1 of the Instructions to Bidders (for short 'ITB') prescribed by the National Rural Roads Development Agency (for short 'the NRRDA') constituted under the auspices of Ministry of Rural Development, Government of India. The CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 7 petitioners herein claim that the only requirement under these clauses of ITB was that the applicant should be registered with the Employees Provident Fund Organisation (for short 'EPFO') under the Employees Provident Fund & Misc. Provisions Act, 1952 (for short 'the Act of 1952') and thus, the respondents have wrongly and arbitrarily rejected their bids on the ground that the petitioners did not submit/upload the registration certificates along with their bids. Being aggrieved by rejection of their respective bids, the petitioners herein have preferred the instant bunch of writ petitions before this Court under Article 226 of the Constitution of India.
The respondents have filed separate replies to the writ petitions wherein a specific plea is taken that it was mandatory to mention the fact of EPFO registration in the tender form and also to upload the EPFO certificate online along with the e-tender in terms of Clauses 4.1.1, 12.1 and 12.2 of the ITB which govern the Standard Bidding Document (for short 'SBD') as formulated by the NRRDA. The said requirement is strictly being adhered to across the board all over the Country because the scheme is for the CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 8 upgradation/construction of the rural roads in the entire Country. Admittedly, the petitioners neither mentioned in their tender forms that they were registered under the Act of 1952 nor were their registration certificates uploaded online. Bids of qualifying contractors whose tenders were compliant with the ITB/SBD have already been accepted and work orders issued and thus, the petitioners cannot take advantage of this major shortcoming/flaw in their application forms by feigning ignorance of the mandatory requirements. It has thus been asserted on behalf of the respondents that the writ petitions are devoid of any merits and should be dismissed.
Referring to the SBD and the ITB, learned counsel for the petitioners vehemently urged that neither of the above required that the EPF registration information or certificate was to be mentioned and uploaded along with the e-tender. The nature and description of the documents to be submitted/uploaded along with the application form is specifically provided in Clauses 12.1 and 12.2 of the ITB. In none of these clauses, certificate of registration under the Act of 1952 has been mentioned. Even in the SBD, there is no column CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 9 for filling out the information of EPFO registration and, therefore, the petitioners had no occasion either to mention factum of such registration in their online bid forms nor could they be expected/required to submit/upload the registration certificates along with their bids. They further urged that the petitioners had either been registered or had applied for registration under the Act of 1952 and thus, they cannot be penalised for the fault/anomaly in the e-tender procedure whereunder no specific instruction was provided in this regard. Thus, they urged that the writ petitions deserve acceptance and the respondents be directed to allow the petitioners to participate in the ongoing tender process.
Per contra, learned AAG representing the respondent State while relying on the assertions made in the reply, vehemently urged that the petitioners have failed to make out any case requiring interference by this Court under the extraordinary writ jurisdiction. He submitted that the petitioners, other than M/s. Bharti Construction have not even set up a case in their pleadings that they were registered with the EPFO as on the last date of submission of tender forms. Tender CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 10 process has been completed and contracts have been executed in favour of contractors of whose bids were compliant with the ITB & SBD. The successful bidders are not parties in these writ petitions. He thus urged that the petitioners are not entitled to the relief claimed.
I have considered the rival arguments and have perused the material available on record.
Clauses No.3, 4.1, 4.1.1, 4.2, 12.1 and 12.2 of ITB and Clause 3 of the Standard Tender Document are relevant for the purpose of disposal of these writ petitions and are being reproduced herein below for the sake of ready reference :-
ITB :-
"3. Eligible Bidders.
3.1 This Invitation for Bids is open to all eligible bidders meeting the eligibility criteria as defined in ITB. The applicant should be a private or government-owned legal entity. For package size exceeding Rs. 10 crore, the Joint Ventures are allowed.
3.2 Bidders shall not be under a declaration of ineligibility for corrupt and fraudulent practices by the Central Government, the State Government or any public undertaking, autonomous body, authority by whatever name called under the Central or the State Government.
CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 11 4.1 All bidders shall provide in Section 3, Forms of Bid and Qualification information, a preliminary description of the proposed work schedule, including drawings and charts, as necessary.
4.1.1 Bidder should have valid registration with Employees Provident Fund organization under EPF and Miscellaneous Provisions Act, 1952.
4.2 All bidders shall include the following information and documents with their bids in Section 3, Qualification Information unless otherwise stated in the Appendix to ITB:
12.1 The Bid submitted by the Bidder shall be in two separate parts:
Part I This shall be named Technical Qualification Part of Bid and shall comprise of:
I. Form of bid for Part I of the bid, as per format given in section 6 (to be submitted online). II. Scanned copy of the Demand Draft for the cost of the bidding documents.
III. Scanned copy of the Bid Security in any of the forms as specified in clause 16.2 of ITB. IV. Authorized address and contact details of the Bidder having the following information:
Address of communication:
Telephone No.(s): Office:
Mobile No.:
Facsimile (FAX) No.:
Electronic Mail Identification (E-mail ID): V. Qualification information, supporting documents, scanned copy of original affidavit and undertaking as specified in Clause 4 of ITB. VI. Undertaking that the bid shall remain valid for the period specified in clause 15.1 of ITB. VII. Any other information/documents required to be completed and submitted by bidders, as specified in the Appendix to ITB, and CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 12 VIII. Scanned copy of the affidavit affirming that information he has furnished in the bidding document is correct to the best of knowledge and belief of the bidder.
Part II. It shall be named Technical-Financial Part of Bid and shall comprise of:
(i) Form of Bid for Part-II of the bid as specified in Section 6;
(ii) Priced bill the quantities for items specified in Section 7;
12.2 The documents and details mentioned in clause 12.1 Part I above shall be submitted online on website www.pmgsytenders.gov.in. Details and process of online submission of the tender and relevant documents are given in the website mentioned above. The above are to be submitted in the manner as prescribed below:
(a) The following details shall be entered on line in the prescribed formats:
(i) Form of bid for Technical Qualification Part I of the bid, as per format given in section 6.
(ii) Form of bid for Technical-Financial Part II of the bid, as per format given in Section 6. The entry of rates for individual items of work/percentage rate for the work shall be made by the bidder on line.
(b) Scanned copies of the following documents shall be uploaded on the website www.pmgsytenders.gov.in at the appropriate place.
(i) Demand Draft towards the Cost of the Bid Document (Clause 8.2 of ITB)
(ii) Bid Security in any of the forms specified in ITB (Clause 16 of ITB)
(iii) Copy of Pan Card issued by Income Tax Authorities (Clause 4.4 of ITB) CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 13
(iv) Contractor Registration certificate (Clause 3 of ITB)
(v) Annual Turnover Certificate from Chartered Accountant for last five financial years with breakup of civil works and total works in each financial year. (Clause 4.4 of ITB)
(vi) Affidavit regarding correctness of certificates (Clause 4.4of ITB)
(vii) Any other documents as specified by the State in the Bid Data Sheet.
(c) Scanned copies of the Certificates showing details of similar nature of works, work in hand and machineries owned of on lease or possessed on hire should be uploaded after converting the same of PDF.
(i) Similar nature or works executed (Clause 4.4 of ITB)
(ii) Works in hand (Clause 4.4 of ITB)
(iii) Machineries owned/brought on hire /lease (Clause 4.4 of ITB)
(d) Submission of Original Documents: The bidders are required to submit (i) original Demand Draft towards the cost of bid document and (ii) original bid security in approved form and (iii) original affidavit regarding correctness of information furnished with bid document as per provisions of Clause 4.4B(a)(ii) of ITB with the office specified in the Bid Data Sheet, on a date not later than three working days after the opening of the technical qualification part of the Bid, either by registered post or by hand. These documents must match the scanned copies submitted along with the bids online. In case, of any deficiency in this respect, it will be treated as mis-representation by such bidder. Such a bidder shall be liable to be debarred for participating in bids under PMGSY for five years."
CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 14 "STANDARD TENDER FORM :-
Section 3 Qualification Information Notes on Form of Qualification Information The information to be filled in by bidders in the following pages will be used for purposes of post-qualification as provided for in Clause 4 of the Instructions to Bidders. This information will not be incorporated in the Contract. Attach additional pages as necessary."
On going through the above quoted clauses of ITB, it is evident that for the bid to qualify, having a valid registration with the EPFO under the Act of 1952 and to communicate such information while submitting the online bid is mandatory. The said requirement which is in form of a qualifying pre-condition has a social purpose behind it as it is proposed to ensure the social and financial security of labourers who would be engaged by the contractor for construction purposes and thus cannot be allowed to be breached, circumvented or diluted under any condition.
The petitioners herein are all registered contractors claiming significant experience in their field and thus, it does not lie in their mouth to feign ignorance of the conditions prescribed in the ITB & SBD. It is unequivocally provided in Clause 4.2 of ITB CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 15 that all bidders shall include the qualification information with their bids. It is clearly mentioned in Clause 12.1(V) of ITB that qualification information and supporting documents as specified in Clause 4 of ITB shall be submitted online by the bidder. Registration under the Act of 1952 is an irremissible mandatory condition prescribed in Clause 4.1.1 of the ITB. In the SBD which has been placed on the record of writ petition, there is a clear note no.3 (reproduced supra) that the information to be filled in by the bidder will be used for the purpose of post qualification purposes as provided in Clause 4 of the ITB.
Upon going through the pleadings of all the writ petitions, it is evident that other than M/s. Bharti Construction Co. (petitioner in SBCWP Nos.9081/2016, 9082/2016, 9242/2016 and 9243/2016) none of the other petitioners were registered under the Act of 1952 as on the last date of submission of bids i.e. 8.7.2016. Thus, the petitioners other than Bharti Construction Co. were not even qualified to bid in the tender process. Admittedly even M/s. Bharti Construction Co., while submitting its bids for different stretches of roads did not upload its EPFO registration certificate along with CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 16 the bid forms. Thus, it is evident that the petitioners tender forms were not compliant with the mandatory requirements of ITB & SBD.
This Court, whilst considering an identical controversy arising out of the very same tender process in the cases of (1) M/s Laburam vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.10292/2016) and (2) M/s. Choudhary Construction Company vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.12475/2016) decided on 22.11.2016 was apprised of the fact that numerous bidders have uploaded EPFO registration certificates along with their bids. The bids of the above writ petitioners after once being accepted were subsequently rejected by the respondent authorities for hypertechnical reasons and this Court struck down such action of the respondents in these two matters. During hearing of those writ petitions, the officer-in-charge of the respondents was present in the Court. The technical process of uploading the tenders was demonstrated whereupon, an apparent anomaly existing in the process of uploading EPFO information along with tender forms came to light. The learned counsel representing the respondents, in consultation CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 17 with the officer-in-charge candidly conceded before this Court during hearing of those matters that the SBD as it then existed in the online portal, did not allow the insertion of EPFO registration number and the only way by which the EPFO registration information could be included in the bid was to upload the registration certificate online. The abovementioned contractors whose writs have been allowed and numerous others, uploaded their EPFO registration certificate/applications with the bids and that is why, their bids were accepted. It was also intimated by the officer-in-charge that such anomaly has been eliminated in the subsequent NITs wherein specific and unambiguous instructions have been given and space provided in the online portal to upload EPF information along with the bids. In wake of the above discussion, this Court is of firm opinion that the action of the respondents in rejecting the petitioners' bids in the questioned tender process does not suffer from any illegality, irregularity or perversity and cannot be termed as without jurisdiction so as to require interference in exercise of extraordinary writ jurisdiction of this Court.
As a consequence, the instant bunch of the writ CIVIL WRIT (CW) No. 10280 of 2016 a/w 7 other connected matters 18 petitions being devoid of any merit, is hereby dismissed.
Stay petitions are also dismissed.
No order as to cost.
A copy of this order be placed in each file.
( SANDEEP MEHTA ),J.
S.Phophaliya/-