Orissa High Court
The Indure Private Limited. New Delhi vs State Of Odisha And Others on 27 July, 2017
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) NO.12368 OF 2017
In the matter of an application under Article 226 of
Constitution of India.
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The Indure Private Limited,
New Delhi ...... Petitioner
-Versus-
State of Odisha and others ...... Opposite
Parties
For Petitioner : Mr.Rajat Ku. Rath, Sr. Advocate
Mr.Ashok Ku. Parija, Sr.
Advocate
M/s. Satyajit Mohanty,
Shyamalendu Patnaik, N.K.Deo
For Opp. Parties : Mr.Sanjit Mohanty, Sr. Advocate
M/s R.R.Swain, A.Acharya
& A.Dash
(For OPs. 2 to 4)
Mr.S.K.Padhi, Sr. Advocate
M/s. S.S.Mohanty
(For OP-6))
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Decided on 27.07.2017
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P R E S E N T:
THE HON'BLE THE CHIEF JUSTICE SHRI VINEET SARAN
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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VINEET SARAN, CJ
A Tender Call Notice dated 26.9.2016, inviting
tenders for "Engineering, Procurement and Construction of
8MPTA Capacity Coal Handling Plant (CHP) at Manoharpur
Coal Mines on Turnkey basis of International Competitive
Bidding (ICB)" was issued by the opposite party-Orissa Coal
Power Limited (for short 'OCPL'). In response to the same,
the petitioner-Company had filed its tender. Having been
declared technically disqualified, this petition has been filed
with the prayer to declare the petitioner to be technically
qualified as having fulfilled all the technical qualification as
per Clause 5.2 of the Notice Inviting Tender (Tender Call
Notice) dated 26.9.2016 and to direct the price bid of the
petitioner-Company to be opened.
2. In response to the said Tender Call Notice,
besides the petitioner, three other bidders had submitted
their bids, which included those of the opposite parties no.
5 and 6. The last date for filing of the tender was
24.3.2017, on which date the petitioner-Company 3 submitted its tender. The Technical Bids were opened, in which two bidders, including petitioner, were disqualified and the remaining two i.e. opposite parties no.5 and 6 were found to be technically qualified. Then, after the approval to the report of the Tender Evaluation Committee dated 16.5.2017, having been granted by the Board of Odisha Coal and Power Ltd. (OCPL) on 2.6.2017, financial bids were opened on 13.6.2017, in which the bid of opposite party no.6 was found to be lowest at about Rs.566 crores and that of opposite party no.5 was for about Rs.597 crores. Being aggrieved by the rejection of its technical bid, the petitioner has approached this Court.
3. We have heard Sri R.K.Rath and Sri A.K.Parija, learned Senior Counsel appearing along with Sri Satyajit Mohanty, learned counsel for the petitioner; as well as Sri Sanjit Mohanty, learned Senior Counsel appearing along with Sri R.R.Swain, learned counsel for the contesting opposite party nos.2, 3 and 4-OPCL; Sri D.P.Nanda, learned counsel for opposite party no.5; and Sri S.K.Padhi, learned Senior Counsel appearing along with 4 Sri S.S.Mohanty, learned counsel for the successful bidder- opposite party no.6.
4. Learned Senior Counsel for the petitioner has submitted that as per Clause 3.3 of the Request for Proposal (for short 'RFP), Coal Handling Plant (for short, 'CHP') comprises of sizers, Conveyor system, over ground bunker with associated tripper & reclaim conveyor and rotary plough feeder, rapid loading system including surge hopper etc. Clause 5.2 of RFP provides for "Technical Requirements to be met by the Bidder" which, learned counsel for the petitioner submits that the petitioner- Company fulfilled. On receipt of the Technical Bid submitted by the petitioner, the OCPL, vide its email dated 15.4.2017 sought for some clarifications on the following matters:
"i) Complete work order for the Chabra thermal power plant for the BOP pkg where CHP is a part.
ii) The BOP pkg does not mention about CHP and cost of CHP anywhere in the submitted work order.
iii) Approved billing break up for the above work order by the owner mentioning the cost of CHP needs to be submitted.
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iv) The performance certificate mentioning the CHP is under operation for at least last one year needs to be submitted."
5. In response thereto, the petitioner had submitted its clarification on 18.4.2017, along with documentary evidence filed as Annexure-5. It is contended that thereafter, the OPCL, without informing the petitioner, had communicated to the Chief Engineer, Chhabra Thermal Power Project (CTPP), Unit of Rajasthan Rajya Vidhyut Utpadan Nigam Ltd.(RRVUNL), to give clarification with regard to similar nature of work in structural erection of CHP done by the petitioner. In response to the same, the Chief Engineer, CTPP replied to OCPL on 11.5.2017 to the effect, that the price of works done by the petitioner towards erection of CHP was about Rs.198 crores. However, the Chief Engineer, in the foot note of the said reply, stated that "as it is BOP contract, the exact cost of CHP cannot be evaluated". Learned counsel for the petitioner submitted that the Tender Evaluation Committee, in its meeting held on 16.05.2017, 6 without seeking for any clarification from the petitioner- Company and solely relying upon the communication of the Chief Engineer, CTPP declared the petitioner to be technically disqualified; and that the petitioner was never communicated with the rejection of his technical bid or reasons thereof; and that the process of evaluation was held behind the back of the petitioner, without seeking any clarification from the petitioner-Company. It is, thus, contended that the decision of the Tender Evaluation Committee of OCPL is not sustainable in the eyes of law.
6. It was next contended that the requirement of the petitioner of having done similar work of Rs.288 crores in one year as required by Clause 5.2(iii)(c) of RFP was fulfilled by the petitioner, which had been duly certified by the Superintending Engineer of Chhabra Thermal Power Project (CTPP) on 1.12.2016 and further certified by the letter of the Chief Engineer, CTPP on 23.6.2017. It was contended that the petitioner was thus technically qualified to participate in the tender and has wrongly been rejected.
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7. Mr.R.K.Rath, learned Senior Counsel, further submitted that the petitioner-Company has reason to believe that the Tender Evaluation Committee proceeded on a misconception that coal bunker is separate item than that of the CHP, although coal bunker is an integral part of CHP. The contention is that OCPL has tried to make out a case in its counter affidavit that the coal bunker is not an integral part of the CHP, for which reason the bid of the petitioner was found technically disqualified, but on perusal of the materials submitted by the OCPL, it is apparent that the technical bid of the petitioner was rejected for non-compliance of provisions of Clause-5.2 of the RFP. The same being not a ground of rejection of the bid of the petitioner, it has no relevance for consideration of the case at hand. However, the OCPL tried to mislead the Court raising such an irrelevant issue which has no nexus with the subject matter in dispute.
8. Learned counsel for the petitioner, referring to the various technical aspects of the matter, has vehemently contended that the petitioner fulfills the technical criteria 8 as enumerated under Clause-5.2 of RFP. Accordingly, the petitioner prayed for the aforesaid relief.
9. Mr. Sanjit Mohanty, learned Senior Counsel for the opposite parties no.2 to 4-OCPL has refuted the contentions raised by the learned counsel for the petitioner and verily relied on Clause-5.2 of RFP, and submitted that the technical bid of the petitioner was rejected solely on the ground of non-fulfillment of the technical requirement enumerated in the aforesaid Clause-5.2, as the petitioner has not submitted valid document for having completed one similar work order with value not less than Rs.288/- crore as required by sub-clause-(III)(c) of Clause-5.2. Referring to Clause-5.2(II), he submitted that the coal bunker, to be part of CHP, ought to have been an RCC Bunker, but documents submitted by the petitioner and the certificate issued by the Chief Engineer, CTPP clearly discloses that the petitioner had erected a steel fabricated Coal Bunker and not an RCC Coal Bunker, and had also included Miller Bunker, which was not requirement as per Clause-5.2 of the RFP. It is, thus, contended that the 9 petitioner had failed to comply with the requirement of Clause-5.2(II) and (III)(c) of the RFP.
10. Mr. Mohanty has further contended that the certificate issued by the Superintending Engineer on 1.12.2016, as filed by the petitioner along with bid documents, did not disclose that the CHP erected by the petitioner at CTPP had been in operation for last one year after commissioning. Subsequently, the petitioner, in its reply dated 18.4.2017, submitted another certificate of the same Superintending Engineer, issued vide same memo number and date (i.e. 01.12.2016), which disclosed that "the plants of unit 3 and unit 4 were commissioned on 15.5.2013 and 31.12.2013 respectively and plant is in operation". The said declaration to the effect that the plant was in operation, was not there in the certificate of the same date filed with the bid documents, but had been obtained subsequently before submitting the reply dated 18.4.2017. This certificate has been filed by the petitioner along with the writ petition, without disclosing that the earlier certificate issued on the same date by the said 10 Superintending Engineer as filed with the bid documents did not certify that the plant was in operation, which certificate did not fulfill the conditions of Clause-5.2 of the RFP. It is thus contended, that the same amounts to misleading the Court by filing incorrect document with the writ petition and also suppression of material information from the Court, on which ground alone the writ petition deserves to be dismissed.
11. Besides this, it has also been contended that the petitioner has filed only selected pages of some agreement, without disclosing whether the same are part of the contract or not. In its reply dated 18.4.2017, the petitioner had simply annexed certain documents, without specifying as to how they were connected to the reply of the query. In response to the contention that the information had been sought from the Chief Engineer, CTPP without informing the petitioner, Mr. Mohanty has submitted that the clarification or confirmation from the concerned department can always be sought for as to whether the earlier certificate issued by the Superintending Engineer 11 was genuine and valid, or not. He has thus prayed for dismissal of the writ petition.
12. Mr. D.P. Nanda, learned counsel for opposite party no.5 and Mr. S.K. Padhi, learned Senior Counsel for opposite party no.6 have adopted the arguments of Mr. Sanjit Mohanty, learned Senior Counsel for OCPL.
13. We have heard learned counsel for the parties at length and carefully perused the record. Learned counsel for the parties have relied on some decisions, which shall be dealt with at the stage of consideration of their submissions.
14. The points which emerge for our consideration are as to whether the rejection of the technical bid of the petitioner on the basis of the communication, which was called for without knowledge of the petitioner, would be justified in law or not, especially when the contention of learned counsel for the petitioner is that the information so supplied by the Chief Engineer, O&M, CTPP vide its e-mail dated communication 11.05.2017 (and further confirmed on 07.06.2017) was only tentative assessment and not 12 final. The other question for consideration of this Court would be as to whether the certificate issued by the Chief Engineer, CTPP dated 23.6.2017, which was after opening of the financial bid on 13.06.2017 and also after filing of this writ petition, could be considered at this stage or not.
15. From the facts, as narrated above, it is clear that initially, along with the bid documents submitted by the petitioner on 24.03.2017, the petitioner had submitted a certificate of the Superintending Engineer (Civil), Chhabra Thermal Power Project (CTPP) by letter No.227 dated 01.12.2016, whereby it was certified that the petitioner had performed the Coal Handling Plant erection work for CTPP to the extent of Rs.290 crores approximately. Thereafter, when, on 15.04.2017, the petitioner was required to answer certain queries raised by the OCPL, the clarification was given by the petitioner on 18.04.2017, in which a letter bearing the same number and date of the very same Superintending Engineer, Sri V.K.Agrawal (as enclosed with the bid document) was furnished, which contained the same information, but with 13 a further certification that the plants commissioned in the year 2013 were still in operation. This was in order to justify the condition under Clause-5.2 (II), which required that the plant completed by the bidder, must be in satisfactory operation for one year on the date of submission of the bid. It appears that since there was a doubt with regard to the correctness of the certificate issued by the Superintending Engineer, the OCPL required the Chief Engineer to give clarification as to which authority could issue such certificate, and as to what was the extent of erection of Coal Handling Plant carried out by the petitioner. In response to such communication issued by the OCPL, the Chief Engineer responded on 11.05.2017 to the effect that the price of the work done by the petitioner towards erection of Coal Handling Plant was about Rs.198 crores. Then, in the meeting of the Tender Evaluation Committee held on 16.05.2017, when the aforesaid two certificates issued by the Superintending Engineer of the same date, i.e., 01.12.2016 were considered, along with subsequent information/ 14 clarification given by the Chief Engineer on 11.05.2017 (confirmed on 07.06.2017), the Tender Evaluation Committee held that the work so performed by the petitioner was not to the tune as required by Clause-5.2 (III) to the detailed tender call notice.
16. The relevant Clause-5.2 of the RFP of detailed tender call notice is quoted below:
"5.2 Technical Requirements to be met by the Bidder The Bidder shall satisfy the following requirements:
I. The Bidder shall be a company, corporation or entity registered in India; AND, II. The Bidder must have successfully completed similar work related to design, supply, construction and commissioning of 100 TPH or above capacity Coal Handling plant/Bulk material handling plant/system consisting of crushers/ sizers, feeders/belt conveyors, RCC Bunker/Silo loading /unloading system (consisting of all civil, electrical and mechanical works and all other accessories and facilities required to make it complete in all respects) on Turnkey /EPC basis in last 7 (Seven) years which must be in satisfactory operation for at least One year as on the date of submission of Bids.
III. The Bidder should have executed at least (any one of the following) in India a. Three similar work order with value not less than Rs.144 Cr. Each, OR, 15 b. Two similar work order with value not less than Rs.180 Cr. Each, OR, c. One similar work order with value not less than Rs.288 Cr. AND The bidders are required to submit work order copy along with commissioning/ completion certificate and performance certificate as on date from the owner in the bidder's name.
IV. Evidence of possessing adequate infrastructural support with respect to design, construction, manufacture of major CHP equipments inclusive of legally binding MOU/Agreement with other agencies."
(emphasis supplied) Contention of learned counsel for the petitioner is that the clarification was called for from the Chief Engineer without informing the petitioner and to that extent the petitioner does not have any objection, but once clarification issued by the Chief Engineer on 11.05.2017 was against the interest of the petitioner and had been relied upon by the Tender Evaluation Committee in its meeting held on 16.05.2017, the same should have been provided to the petitioner and opportunity ought to have been given to clarify the same.
17. On this point, much reliance has been placed by the learned counsel for the petitioner on a decision of 16 Division Bench of this Court rendered in the case of D.K. Engineering & Construction Vs. State of Odisha, reported in 2016 (II) OLR 558. It is submitted that in paragraph 8 of the said judgment, it has been held as follows:
"8. ....before taking the impugned decision by the Tender Inviting Authority, no opportunity has been given to the petitioner and such decision has been taken only on the basis of the report furnished by the Executive Engineer, Kalhandi (R&B) Division, Bhawanipatna. Even copy of such report was not supplied to the petitioner nor it was called upon to offer its explanation on such report and behind its back such decision has been taken by the Tender Committee, which amounts to gross violation of the principles of natural justice.
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18. We have gone through the said judgment and find that facts of the said case are distinct from the facts of the present case. In the said case, there were four bidders and all of them were found to be technically qualified and thereafter the bids of all the four bidders were opened, in which petitioner therein was found to be the lowest bidder.
When no work contract was issued in favour of the 17 petitioner therein, the writ petition was filed and the stand taken by the State was that after opening of the financial bid, the Tender Inviting Authority had called for a report with regard to past performance of the petitioner therein and since it was reported that the past performance of the petitioner was not satisfactory, the work order was not issued in its favour. In this backdrop, in paragraph-7 of the said judgement of D.K. Engineering & Construction (supra), it was held as follows:
"7. ... after the petitioner was found suitable, being the lowest bidder, on the basis of technical and financial evaluation made by the Tender Inviting Authority, subsequently, a report was called for from the Executive Engineer, Kalahandi (R&B) Division, Bhawanipatna with regard to the performance of the petitioner and on that basis it was decided not to entrust the work to the petitioner. The said inquiry could have been done prior to opening of the financial bid. Once, the financial bid was opened and known to everybody, that the petitioner was the lowest one, the Tender Inviting Authority could not have taken a decision to call for a report in order to disqualify the petitioner on the ground of past performance. Such action of the Tender Inviting Authority is also not correct otherwise, as the petitioner had submitted the details of the work awarded to it and executed by it under the 18 Executive Engineer, Kalhandi (R&B) Division, Bhawanipatna on the basis of the agreements executed in the years 2009-10 and 2011-12. The contention raised by the learned Additional Standing Counsel, that past performance of the petitioner was poor, is belied by the documents available on the record to the effect that the petitioner has successfully executed the works and ongoing works within the extended period granted by the authority and, as such, neither any penalty has been imposed nor the work allotted in its favour has ever been cancelled, and payments in respect of work done have been made by the authority without any objection. In such view of the matter, the contention so raised that the petitioner had got poor performance in its past record cannot sustain in the eye of law."
(emphasis supplied) The said decision was rendered by the Division Bench of this Court after considering the judgment of the Supreme Court in the case of Jagdish Mandal Vs. State of Orissa (2007) 14 SCC 517, on which learned counsel for the petitioner has also relied upon.
19. In the case of Jagdish Mandal (supra) what has been held is that the correctness of the decision making process can be considered by the writ Court and not the correctness of the decision. The Division Bench 19 had interfered in the case of D.K.Engineering & Construction (supra), as the decision making process was itself faulty because after the bidder was found to be technically qualified and the financial bids were opened, in which he was found to be the lowest bidder, there was no occasion for the Tender Inviting Authority to make any enquiry behind the back of the petitioner at that stage. However, in the present case, since there was discrepancy in the two certificates produced by the petitioner, one at the time of filing of the bid documents, and other while replying to the query raised by OCPL, and the letter number, date and the issuing authority of both the letters was the same, at a stage which was much before the bidders were even found to be technically qualified, the query was raised and clarification sought for from the competent authority, which was the Chief Engineer, CTPP. As such, the process adopted by the Tender Evaluation Committee in the present case, which was prior to the evaluation of the technical bids of the bidders, cannot be said to be faulty nor was, in the facts and 20 circumstances of the case, the OCPL required to give opportunity of hearing to the petitioner.
In Jagdish Mandal (supra), the Hon'ble Supreme Court has held as follows:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising 21 power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article
226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.
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24. The tender conditions give an option to the tenderer, to furnish earnest money deposit, by pledging NSC/postal time deposit/postal saving passbook/deposit receipts issued by any nationalised bank. The first respondent pledged a postal TD account passbook 22 relating to a deposit of Rs.1,70,000/- in fulfillment of the condition regarding EMD. The Department is entitled to verify the genuineness of the TD passbook to ensure that the required EMD is furnished. In this case, even before the Committee could consider the tenders, a complaint was also received alleging that the TD passbook produced by the fifth respondent was tampered and manipulated. It was therefore but natural for the Department to seek confirmation from the Postal Department as to whether the TD passbook was genuine and valid. Its query elicited a reply from the Superintendent of Post Offices that the term deposit passbook for Rs.1,70,000 produced by the fifth respondent was not to be acted upon.
Therefore, the Committee concluded that the tender of the fifth respondent was defective as not being accompanied by a valid EMD. It cannot be said that the Committee acted unreasonably and arbitrarily, in arriving at the said decision. The Committee did not send show-cause notice to the fifth respondent before rejecting the TD passbook and consequently the tender, as Clause 3.5.18 of the Code makes it clear that acceptance of any tender is entirely at the discretion of the accepting authority and no tenderer can require the authority to show cause for rejection of the tender.
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27. The learned counsel for the fifth respondent submitted that the Department ought not to have acted on a complaint received against him, without giving him an opportunity to show cause. This contention 23 has no merit. Whether any complaint is received or not, the Department is entitled to verify the authenticity of the document pledged as earnest money deposit. Such verification is routinely done. The Committee was neither blacklisting the tenderer nor visiting any penal consequences on the tenderer. It was merely treating the tender as defective. There was, therefore, no need to give an opportunity to the tenderer to show cause at that stage. We no doubt agree that the Committee could have granted an opportunity to the tenderer to explain the position. But failure to do so cannot render the action of the Committee treating the EMD as defective, illegal or arbitrary.
28. The limited scope of judicial review by the High Court envisaged examination of the question whether there was any material irregularity in the decision-making process or whether the decision of the Committee and consequential rejection of fifth respondent's tender was irrational, unreasonable or arbitrary. The validity of the decision of the Committee taken on the material available at the time of consideration of tenders, cannot be tested with reference to a subsequent police enquiry report submitted in the writ proceedings. Nor can it be held that the Committee acted arbitrarily in not accepting the passbook, on the basis of some report opining that the TD passbook is genuine. The High Court was not sitting in appeal over the decision of the Committee. The High Court could not, therefore, by relying on a subsequent police enquiry report, the correctness of which is yet to be 24 established, hold that the Tender Committee was wrong in rejecting the TD passbook. Further, the High Court missed the issue. The question for consideration was not whether the TD passbook pledged by the fifth respondent is genuine or not. The question for consideration was whether the Committee acted arbitrarily or irrationally in rejecting the said TD passbook."
(emphasis supplied)
20. Applying the ratio as laid down by the Apex Court in the aforesaid case, we are of the clear view that there was no requirement of any notice or opportunity to be given to the petitioner prior to seeking certain information and clarification from the Chief Engineer, CTPP with regard to correctness and validity of the two certificates (both dated 1.12.2016) issued by the Superintending Engineer, CTPP.
21. The next question which arises for our consideration is with regard to the relevance of the subsequent certificate dated 23.6.2017 which was issued by the Chief Engineer, CTPP. The said letter was admittedly issued after the Financial Bids were opened on 13.6.2017. It is also admitted that the same was issued on the request 25 made by the petitioner on 15.6.2017, which was also after the opening of the Financial Bid on 13.6.2017. By the request dated 15.6.2017, the petitioner had sought for clarification from the Chief Engineer, CTPP with regard to certain items and it was only in response to the said communication, that the Chief Engineer, CTPP had furnished the requisite information on 23.6.2017. The information given by the Chief Engineer, CTPP was not with regard to the price work done by the petitioner for erection of coal handling plant (CHP) but with regard to the specific items for which the petitioner had asked for in its communication dated 15.6.2017. By the said letter dated 15.6.2017, the petitioner had requested for the following:
" We are pleased to submit that we have done Coal Handling system package included in the contract as per approved billing schedule. We have been placed order for BOP package including the work of the CHP. You are requested to please issue the certificate regarding Coal Handling Plant of Unit no. 3 and 4 at CTPP Chhabra including the cost of Electrical work of CHP, Misc. works such as Fire fighting, Air Conditioning, Elevators, Misc. Pump and Piping 26 and also Structural work of Bunker And Mill Bunker Building and associated Civil works. This Certificate is required for bid purpose only. In this regard we would like to further confirm that this shall not be any way prejudice RRVUNL's right and obligations under the above contract."
(emphasis supplied)
22. By the said communication, the petitioner had accepted that the work done by it was of "Coal Handling System Package" which included the work of Coal Handling Plant. The request was for giving certificate regarding the work done, which included structural work of Coal Bunker, and Mill Bunker Building and associated Civil works. The said certificate was asked for bid purpose only.
23. What is noticeable is that the work of Coal Handling System Package may include Coal Handling Plant (CHP), but the work done for the entire package cannot be treated as that of Coal Handling Plant. Further, the work for structural work of bunker was not the requirement of Clause 5.2 of RFP, which required the work of RCC bunker. It is also noteworthy that the Mill Bunker Building and 27 associated civil works was also not included under Clause 5.2 of the RFP. The certificate so issued by the Chief Engineer, CTPP on 23.6.2017 was to the effect that the approximate cost of Coal Handling Plant erected by the petitioner was approximately Rs.220.68 crores and that of coal bunker, Rs. 74 crores. In the description of the work of Coal Bunker, it is categorically mentioned that the same relates to "supply of steel, fabrication and erection work of bunkers and mill bunker building" to the tune of Rs.67 crores. From this, it is clear that the Coal Bunker erected by the petitioner was steel fabricated bunker, and not RCC bunker. Besides this, civil work of mill bunker building was to the tune of Rs.7 crores. Thus, the total work under the heading of Coal Bunker was Rs.74 crores. This, added to the work of Coal Handling Plant of 220.68 crores, the total work done comes to Rs.294.68 crores.
24. The work of steel fabricated Coal Bunker amounting Rs. 74 crores cannot be included in the work executed by the petitioner towards the technical requirement under Clause 5.2 of RFP, as the same required 28 RCC bunker. The specific requirement was that the bidder should have executed at least one similar work order with value not less than Rs. 288 crores. Hence, when the work of steel fabricated Coal Bunker is not to be considered then, as per the certificate, similar work executed by the petitioner was of Rs.220.68 crores only.
25. Secondly, even if the steel fabricated bunker work of Rs.67 crores is allowed to be added, then too the civil work of mill bunker building cannot be included, as the same was certainly not the requirement of Clause 5.2 of the RFP. The civil work of mill bunker building was to the tune of Rs.7 crores. As such, if the said amount is deducted from the total of Rs. 294.68 crores (for which the certificate has been issued by the Chief Engineer on 23.6.2017) the amount would come to Rs. 287.68 crores, which would be less than Rs. 288 crores as required by Clause 5.2 of the RFP.
26. From the above, it appears that the certificate sought for by the petitioner vide its communication dated 15.6.2017 was for works outside the scope of Clause 5.2, 29 but was asked for by the petitioner only with the intention so that the figure may come to more than Rs. 288 crores, so as to come within the ambit of being technically qualified.
27. Besides the above, the letter of the Chief Engineer, CTPP cannot have been taken into consideration because not only the same was issued after the opening of the Financial Bid on 13.6.2017 (and that too on the request of the petitioner for specific items and purpose being for "bid purpose only", which bid had already been submitted by the petitioner on 23.4.2017) but also because the said certificate had not been filed with the writ petition, as the same had been obtained subsequently and had been filed by an additional affidavit. For this reason also, we are of the opinion that the said certificate dated 23.6.2017 which was obtained subsequently, cannot be relied upon in support of the case of the petitioner.
28. It is not disputed that the certificate dated 1.12.2016 issued by the Superintending Engineer, CTPP as filed by the petitioner with the writ petition, was not the 30 one which was filed by the petitioner along with bid documents. The certificate filed with the bid documents did not contain the certification that the plants were in operation after commissioning in the year 2013. The certificate filed subsequently was procured only to show that the petitioner was qualified technically, by insertion of a clause to cover the requirement that the plant was satisfactorily in operation for one year, as on the date of submission of bid. We are thus of the opinion that the petitioner has tried to mislead this Court by filing wrong certificate, which was not filed by the petitioner along with the bid documents.
29. In the aforesaid facts, we can safely conclude that the rejection of the technical bid of the petitioner was neither perverse nor arbitrary so as to call for interference by this Court in its extra ordinary discretionary jurisdiction under Article 226 of the Constitution of India.
30. In view of the aforesaid facts and circumstances of the case, we are of the firm opinion that the disqualification of the technical bid of the petitioner 31 cannot be faulted with, and thus the prayers made in this writ petition do not deserve to be granted.
31. Accordingly, the writ petition is dismissed. No order as to cost.
Urgent certified copy of this order be issued on payment of usual charges.
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(VINEET SARAN) CHIEF JUSTICE ............................
(K.R.MOHAPATRA) JUDGE Orissa High Court, Cuttack Dated the 27th July, 2017/DM/DA