Uttarakhand High Court
Gmw Private Limited And Another ... ... vs Uttarakhand Jal Vidyut Nigam Ltd. & ... on 26 February, 2020
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 413 of 2020
GMW Private Limited and another ... Petitioners
Vs
Uttarakhand Jal Vidyut Nigam Ltd. & others ... Respondents
With
Writ Petition (M/S) No. 421 of 2020
GMW Private Limited and another ... Petitioners
Vs
Uttarakhand Jal Vidyut Nigam Ltd. & others ... Respondents
Ms. Menka Tripathi, learned counsel for the petitoners.
Mr. Vinay Kumar, learned counsel for the respondent.
Mr. Yogesh Pandey, learned Additional C.S.C. for the State of Uttarakhand
Hon'ble Manoj K. Tiwari, J.
1. Since common questions of fact and law are involved in these petitions, therefore, both these petitions are clubbed together and are being decided by a common judgment. However, for the sake of brevity, facts of WPMS No. 413 of 2020 alone are being considered.
2. This writ petition has been filed by the petitioner seeking following relief:-
a. A writ, order or direction in the nature of Certiorari quashing the impugned order 25.01.2020 of the Respondent No. 1 whereby financial bid of the respondent no. 2 has been approved by the Central Water Commission after summoning the same in original from the Central Water Commission since it is an internal matter and the copy of the same has not been provided to the petitioners.
b. A writ, order or direction in the nature of Certiorari quashing the impugned order/action taken in pursuance of the decision of the evaluation committee dated 26.01.2020 of the Respondent No. 1 whereby technical bid of the petitioners has been rejected, which is contained in Annexure No. 2 to the writ petition.
c. A writ, order or direction in the nature of Certiorari quashing the impugned order/action dated 21.01.2020 of the Respondent No. 1 whereby technical bid of the petitioners has been rejected, which is contained in Annexure No. 3 to the writ petition.
d. A writ, order or direction in the nature of Certiorari quashing the order dated 21.11.2019 issued by the 2 respondent no. 4 as contained in Annexure No. 4 to the writ petition.
e. A writ, order or direction in the nature of certiorari quashing impugned decision/action of investing into the past contractual details between the Petitioner and the HCC Ltd., as indicated in their letter dated 02.12.2019 contained Annexure No. 5 to the writ petition.
f. A writ, order or direction in the nature of mandamus directing the Respondent No. 1 to qualify the petitioner no. 1 in the technical bid and the financial bid after taking into consideration the certificate issued by the HCC dated 19.11.2019, which has also been confirmed by the respondent no. 1.
g. A writ, order or direction in the nature of mandamus directing the respondent no. 1 to verify the documents submitted by the respondent no. 2 alongwith their tender documents as the documents are manipulated.
h. A writ, order or direction in the nature of mandamus directing the respondents not to grant the work contract in pursuance of the decision of qualifying the respondent no. 2 in technical and financial bid.
3. Petitioner No. 1 had submitted a bid in two bid system in response to a tender notice issued by Uttarakhand Jal Vidyut Nigam Ltd. (from hereinafter referred to as "UJVNL"). The said tender notice was for supplying a "Hydraulically Operated Movable Trash Rack Cleaning Machine". Relevant extract of the tender notice is reproduced below for ready reference:-
"NATIONAL COMPETITIVE BIDDING FOR Design, Manufacturing, Supply, Installation, Testing & Commissioning of one no. Hydraulically Operated Movable Trash Rack Cleaning Machine (TRCM) to safely handle rake capacity of 1.0 Tonne as well as log grappler capacity of 1.25 Tonne with new Trash Rack Panels including dismantling of existing TRCM & Trash Rack Panels at Asan Barrage, Dhalipur in District Dehradun, Uttarakhand, India."
4. Petitioner's technical bid was rejected by invoking bid clause No. 3, namely, Fraud and Corruption under Clause 'A' - General of Section -1 ITB. In the communication dated 06.11.2019, 3 issued by Central Project Management Unit (in short 'CPMU') of Central Water Commission to the UJVNL (respondent No. 1), it was stated that petitioner had misrepresented facts which amounts to fraudulent practices. It was further stated that recommendation by Evaluation Committee to qualify petitioner's technical bid is not correct.
5. Learned counsel for the petitioner submits that petitioner had not misrepresented any fact, as is apparent from the letter issued by M/s HCC Ltd. on 19.11.2019. She further submits that petitioner's technical bid was wrongly rejected, although he fulfilled all conditions of eligibility.
6. Mr. Vinay Kumar, learned counsel appearing for UJVNL submits that only two bids were received in response to the notice inviting tender and UJVNL had declared both the bidders technically qualified and recommended their names to the CPMU of Central Water Commission for approval, as the valuation of the work was above `1.5 crores. He further submits that it is a World Bank funded project, therefore, approval of Central Water Commission is necessary. He further submits that petitioner had submitted four experience certificates along with his technical bid out of which one certificate in respect of Sainj HEP, Himachal Pradesh was found to be incorrect after verification from the employer i.e. M/s Hindustan Constructions Company Ltd. (in short "HCC"), consequently, CPMU of Central Water Commission disapproved the decision taken by the Evaluation Committee of UJVNL to declare the petitioner as technically qualified. He further submits that petitioner in his experience certificate had stated that the work done by him in respect of Sainj HEP, Himachal Pradesh was for `3.75 crores, but when this fact was verified from M/s HCC Ltd. (employer) then it was found that the said work was worth only `2.35 crores. He further submits that in view of this discrepancy in the experience certificate submitted by the petitioner, CPMU of Central Water 4 Commission disapproved the decision taken by Evaluation Committee of UKJVNL.
7. Per contra, Ms. Menka Tripathi, learned counsel for the petitioner submits that M/s HCC Ltd. in its letter dated 19.11.2019 (Annexure No. 9 to the writ petition) has certified that the work done by the petitioner in respect of Sainj HEP, Himachal Pradesh was worth `4.30crores, however, this aspect has been ignored by CPMU of Central Water Commission. Learned counsel for the petitioner further submits that as per bid document, every bidder was required to furnish experience certificate having completed similar work, duly verified by the employer in the following manner:-
(i) Three completed works each costing not less than amount equal to Rs. 376.5 lakh Or
(ii) Two completed works each costing not less than amount equal to Rs. 345.6 lakh.
Or
(iii) One completed work costing not less than amount equal to Rs. 553 lakh.
8. Ms. Menka Tripathi, learned counsel for the petitioner further submits that petitioner had enclosed as many as four experience certificates, out of which one was for a work costing `393.6 lakh, second was for `375 lakh, third was for `742 lakh and fourth was for `679 Lakh. Thus, she submits that even if the experience certificate submitted by petitioner in respect of Sainj HEP, Himachal Pradesh is ignored, then also petitioner met the requirement of Section 3(b) of the bid. Learned counsel for the petitioner further submits that respondent No. 2, who has been declared technically qualified and who is the sole bidder left in the fray, did not meet the requirement of the tender document. She further submits that as per tender document, Hydraulic Trash Rack Cleaning Machine with bucket capacity of 1.0 Ton was to be procured, while respondent No. 2 in his technical bids as described his machine as having bucket capacity of 800 kilogram. Thus, 5 according to her, respondent No. 2 does not meet the specifications of the machine as indicated in the bid document, therefore, his bid was liable to be rejected.
9. Regarding the last submission made on behalf of the petitioner that the description of machine given by respondent No. 2 in his technical bid did not meet the technical specification, Mr. Vinay Kumar, learned counsel appearing for UJVNL submits that petitioner had highlighted this aspect through a representation made to his client, which has been forwarded to CPMU of Central Water Commission by e-mail on 18.02.2020. He further submits that CPMU is yet to take decision on the said representation.
10. After hearing rival contentions made by learned counsel for the parties, this Court is of the opinion that the matter requires reconsideration by CPMU of Central Water Commission in the light of the letter dated 19.11.2019 issued by M/s HCC Ltd., certifying that petitioner had completed work worth `4.30 crores in Sainj HEP, Himachal Pradesh. Since petitioner's representation is also pending with CPMU, therefore, CPMU shall consider the same and take appropriate decision thereupon.
11. In such view of the matter, both writ petitions are disposed of with a direction to CPMU of Central Water Commission to look into the matter and take appropriate decision on petitioner's representation, which has been forwarded by UJVNL, in accordance with law, preferably within a period of two weeks from the date of production of certified copy of this order.
12. Let certified copy of this order be issued on payment of usual charges within 24 hours.
(Manoj K. Tiwari, J.) 26.02.2020 Aswal