Orissa High Court
Afr Jagruti Welfare Organization vs State Of Odisha And Others ......... ... on 11 May, 2018
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 457 of 2018
In the matter of an application under Article 226 of the
Constitution of India.
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AFR Jagruti Welfare Organization ........ Petitioner
-Versus-
State of Odisha and others ......... Opp. Parties For petitioner : Mr. Ashok Parija, Sr. Advocate along with M/s. B.K. Sharma, A.U. Senapati, S. Palei, S.K. Singh and S. Das, Advocates For opp. parties : Mr. B.P. Pradhan, Addl. Government Advocate [O.P. No.1] Mr. Milan Kanungo, Sr. Advocate, along with M/s. S. Mishra, S.R. Mohanty, A.K. Rout and S.K. Meherulla, Advocates [O.P. No.2] Mr. P. Acharya, Sr. Advocate along with M/s. S. Mohanty, S.S. Mohapatra, A.K. Jena and P.K. Das, Advocates [O.P.No.3]
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2PRESENT THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HONOURABLE DR. JUSTICE B.R. SARANGI Date of Hearing:- 07.05.2018 : Date of Judgment: 11.05.2018
--------------------------------------------------------------------------------- DR. B.R. SARANGI, J, The Cuttack Municipal Corporation had floated a tender for "Integrated Municipal Solid Waste Management" in the year 2010. The quantity of the work to be undertaken by the successful bidder was as follows:-
• Sweeping and collection of Municipal Solid • Waste (MSW): 100-120 MT per day.
• Transportation of MSW: 150-200 MT per day. • Collection and transportation of debris: 3000 cubic feet per day.
• Separation of MSW and operation of compost plant.
In the said notice inviting tender, the financial eligibility criteria was as follows:-
• Average annual turnover should be more than Rs.8 crores for last 3 years and net worth should be positive.
2. In the year 2016, the Cuttack Municipal Corporation (hereinafter referred to as "CMC") floated a 3 tender on 25.07.2016 primarily with the following scope of work:-
• Sweeping and collection of MSW : 100-120 MT per day.
• Transportation of MSW: 150-200 MT per day. • Collection and transportation of debris: 8000- 10,000 cubit feet per day.
• Operation and maintenance of Compost Plant.
The financial eligibility criteria at Clause 4.2 of the said notice inviting tender was unreasonably escalated to Rs.30 crores in place of Rs.8 crores, as required in 2010 bid. The technical bid was opened on 26.08.2016. Since a single bid was received from one M/s. Global Waste Management Cell Private Limited, Mumbai, the same was cancelled and a fresh notice inviting tender was floated within 24 hours, with the same scope of work as well as financial eligibility criteria, on 27.08.2016. The petitioner- Jagruti Welfare Organization, a society, registered under the Societies Registration Act, through its Secretary challenged the financial eligibility criteria of the tender conditions in W.P.(C) No. 15713 of 2016 on two grounds, namely:4
(1) There is no reasonable nexus for increasing the eligibility criteria from Rs.8 cores to Rs.30 crores for the scope of work remaining almost similar.
(2) The financial eligibility criteria was increased from Rs.8 crores to Rs.30 crores to oust several intending bidders like the petitioner and to limit the competition to chosen few.
After the pleadings between the parties were exchanged, the said writ application was heard in extenso and this Court came to a conclusion that the CMC had miserably failed to establish a reasonable nexus between the escalation of the financial eligibility with the object to be achieved, i.e., the scope of work and held that the escalation of the financial eligibility criteria as per Clause-4.2(a) of the tender call notice was arbitrary, unreasonable, and discriminatory and deserved to be scraped and further held that there could be no second opinion that the CMC had fixed the financial eligibility criteria to eliminate potential bidders like the petitioner from the arena of competition and finally this Court allowed the said writ application vide its judgment dated 18.07.2017 with following observation and direction: 5
"35. In the case at hand, the tender condition of the financial eligibility criteria is so stringent that only four bidders could participate in the tender process. Out of four, two could not even deposit the EMD and became unsuccessful in their technical bids. Only two bidders, as referred to above, came out successful in their technical bid who have quoted exorbitantly inflated price. Had there been a reasonable 'financial eligibility criteria' a number of competitors as that of the petitioner could have participated and there would have been a fair competition. Hence, we have no hesitation to hold that the petitioner has locus standi to maintain the writ petition assailing the unreasonable, arbitrary and discriminatory action of the authorities in fixing the financial eligibility criteria.
36. In that view of the matter, we set aside the Clause 4.2(a) of the impugned tender condition as at Annexure-1 and consequently the entire tender process. The CMC is directed to issue fresh notice inviting tender fixing a reasonable financial eligibility criteria taking into consideration the nature and scope of work to be performed."
3. As this Court, vide judgment dated 18.07.2017, cancelled the Solid Waste Management (SWM) Tender of CMC, which was invited vide CMC Notice No. 9761 dated 27.08.2016, and directed to issue fresh notice inviting tender fixing reasonable financial eligibility criteria taking into 6 consideration the nature and scope of work to be performed, accordingly an estimate of Rs. 147.26 crore was prepared for Integrated Municipal Solid Waste Management of Cuttack City for a period of five years basing on Swachha Bharat Mission (SBM) Norms and Guidelines, i.e. Solid Waste Generated - 300 gram per capita per day & Minimum Number of Sweepers and Door to Door Collectors - 28 nos. per 10,000 Population and Government of Odisha Schedule of Rates 2014. The CMC in its meeting held on 18.08.2017 approved the same for calling fresh tender considering the above estimated value of Rs. 147.26 crore and reduced the financial eligibility criteria of bidder to Rs. 25.5 crore. The Solid Waste Management (SWM) work was grouped into five categories, i.e., Part-A, B, C, D and E. Part-A is Sweeping, Part-B is House to House Collection, Part-C is Composting, Part-D is Transportation of garbage, Part-E is Collection and Transportation of debris. Besides the above scope of work, other activities were included in the said project. These are IEC Activities, CSR Activities, Bio Metric Attendance System, Wall Painting VTS etc. The garbage which will be generated 7 by sweeping, house to house collection etc. will be measured and payment will be made to the operator on Metric Ton (MT) Basis (Weight Basis). However, for collection and transportation of debris, distilled materials, road sweeping sand etc. will be measured and accordingly payment will be made on Cubic Meter (Volumetric Basis). Accordingly, the Integrated Municipal Solid Waste Management Project of Cuttack Municipal Corporation was prepared as per MSW Rules, 2016.
4. To give effect to the aforesaid project, the CMC floated tender call notice no. 1673/ CHO dated 01.09.2017 in respect of "Integrated Municipal Solid Waste Management Project of Cuttack Municipal Corporation" with estimated cost (approximate) Rs. 147.26 crore, for which Rs. 1,48,00,000/- was to be deposited as EMD and period of contract was for five years. The date of commencement for downloading the bid document was fixed to 05.09.2017 from 4.00 P.M. The last date and time of downloading the bid document was 07.10.2017 up to 5.00 P.M. The last date and 8 time of seeking clarification (if any)/ date of pre-bid meeting was 15.09.2017 from 11.00 A.M. The last date and time of receipt of filled up bid document was 09.10.2017 up to 5.00 P.M. The date and time of opening of technical bid received through registered post/speed post was 10.10.2017 at 11.00 A.M. The expected date and time of implementation of the work was December, 2017. The tender contained two bid system; Part-I, Techno Commercial Bid, and Part-II, Price Bid basing on CVC Guideline and reduced financial eligibility criteria as approved in the council.
5. As per Clause-16.5 of the CPWD Manual, 2014, the pre-bid conference was held on 15.09.2017, in which the doubts of intending tenderers were clarified, and therein the following agencies attended:-
"1. M/s Jagruti Welfare Organisation
2. M/s. Delhi MSW Solutions Ltd. ( A Ramky Group Ventures)
3. M/s Global Waste Management Sale PVT. Ltd.
4. Sri Gurpal S. Dhamija
5. M/s. Jyoti Enviro-Tech Pvt. Ltd., Lucknow
6. M/s. Kaviraj MBB Waste Management Pvt.
Ltd. Mumbai"9
After the pre-bid meeting, the CMC issued first corrigendum notice on 26.09.2017. Clause-4.1.1. of the aforesaid tender call notice prescribes technical eligibility criteria. In response to the same, the petitioner had offered its bid on 05.10.2017, wherein the petitioner has indicated the 3 projects which the petitioner has undertaken. But the bid of the petitioner was rejected on the ground that the petitioner has 3 years of experience of Integrated SWM in Bhubaneswar Municipal Corporation in 2 packages of agreement. The minimum requirement for two similar completed work as per DTCN is 2 x Rs. 14.72 crores (50% of the estimated cost of 1 years) = 29.44 crores. The maximum annual value of two projects of the petitioner has been considered i.e. 10.28 crore + 16.71 crores = 26.99 crores. Therefore, it was decided not to evaluate the offer of the petitioner as per Clause 4.5 of the DTCN and the petitioner was declared to be unresponsive. The authorities of CMC further held the bid of the petitioner to be unresponsive, in view of the vigilance case vide SVP (V) P.S. Case No. 22/2014, BBSR (V) P.S. Case No. 11 of 2012 instituted against the Secretary of the petitioner's society and 10 therefore, the petitioner society is not fulfilling the eligibility criteria as per Clause 4.3(d) of the tender condition. After the evaluation of technical bid of all the 6 bidders, 4 were declared to be unresponsive and 2 firms, namely, M/s. A.G. Enviro Infra Projects Ltd. and the opposite party no.3 remained in the fray and ultimately the rate of opposite party no.3 at Rs.6309/- per MT was held to be L-1 and it was recommended by the CMC to State Government for its approval, hence this application.
6. Mr. A.K. Parija, learned Senior Counsel appearing along with Mr. B.K. Sharma, learned counsel for the petitioner contended that if the lowest bid of Rs.6309/- is accepted for the present tender, the expenditure to be incurred by CMC would be Rs. 46,05,57,000/- per annum. Pursuant to the previous tender, which was the subject matter of challenge in W.P.(C) No. 15713/2016, SRP Clean Enviro Engineers, Bangalore had quoted Rs. 5640/- per MT and the expenditure to be incurred by opposite party no.2 would have been Rs. 41,17,20,000/- per annum. Therefore, 11 there is likelihood of huge loss of public exchequer which is certainly opposed to public interest and public policy. Therefore, the reason, for which this Court set aside the earlier tender, still persists and, as such, interference of this Court in the present proceeding is inevitable.
It is further contended that the CMC authority did not consider the 3rd project, i.e., lifting and carriage of MSW from TTS to final disposal site at Bhuasuni. They only took cognizance of two packages of agreement entered into between the petitioner and the Bhubaneswar Municipal Corporation. As per the tender condition, it is mentioned in Clasue-4.1.1(b) that the tenderer must have experience of having successfully completed two similar works costing not less than the amount equal to 50% of the estimated cost. If the two similar completed work is taken to be A and B, then the interpretation should be A + B = 50% of the estimated cost, i.e., 147.26 crores in five years. 50% of the estimated cost would be Rs.73.63 crores in five years, as the estimated cost has been fixed at approximately Rs.147.26 crores and 12 the period contract is five years. Therefore, for a single year the estimated cost will be 73.63 divided by 5, i.e., Rs.14.72 crores. The CMC has interpreted the said clause by taking consideration Rs.14.72 x 2 = Rs.29.44 crores, as the 50% of the estimated cost of 1 year and thereby rejected the bid of the petitioner, which is not justified. It is thus contended that if such fallacy of the CMC is accepted, then the same is contradicting the criteria stipulated for annual average turnover of Rs.25.5 crores, which has been fixed in the tender condition and as per the judgment delivered by this Court in W.P.(C) No. 15713 of 2016. In that view of the matter, no bidder can achieve the completion certificate amounting to Rs.29.44 crores with an annual average turnover of Rs.25.5 crore, as provided in the tender.
It is further contended that the CMC has not taken into account the 3rd project of the petitioner, i.e., lifting and carriage of MSW from TTS to final disposal site at Bhuasuni, which is the integral part of solid waste management. If the said work is taken into account, then the maximum annual 13 value of 3 projects would be Rs.10.28 crores + Rs.16.71 crores + Rs.11.65 crores = Rs.38.64 crores. In that event, the sub-clause 'b' of Clause 4.1.1 would be attracted and the opposite party no.2 will have to take into account the three similar completed works costing not less than the amount equal to 40% of the estimated cost.
It is further contended that the rejection of the bid of the petitioner being unresponsive on the ground that it does not fulfill the eligibility criteria as per clause 4.3(d) of the tender condition is erroneous and fallacious. Sub-clause
(d) of the aforesaid clause provides that bidder should submit an affidavit to the effect that the company has not been blacklisted or barred or terminated by any Central and State Government/Government Undertakings/ULB during last 5 years in similar work. If any criminal cases are pending against the bidder or member at the time of submitting the bid, then the bid shall be summarily rejected. It is contended that mere pendency of some cases cannot debar the petitioner from participating in the tender, because no charge 14 sheet has been submitted till date. It is further contended that pursuant to tender call notice for the year 2010, one agency, called M/s. Ramky Enviro Engineers Pvt. Ltd., which had quoted price of Rs.1764/- per MT for sweeping, collection, lifting and transportation of garbage and 5% annual escalation was allowed for the year 2011 to 2016 and accordingly, the rate in the year 2016 was arrived at Rs.2141/- per MT. Taking into consideration volume of work being executed by M/s. Ramky Enviro Engineers Pvt. Ltd, opposite party no.2 has paid Rs. 18 crores at the present rate of Rs.2141/- per MT. The requirement of average turnover per annum was Rs.8 crore in the year 2010, which has already gone up to Rs.18 crore in the current year 2016-
17. In the present tender, one M/s. AG Enviro Infra Project Pvt. Ltd, has quoted Rs. 7,000/- per MT whereas opposite party no.3 has quoted Rs.6309/- per MT, which is much more than what is being paid to M/s. Ramky Enviro Engineers Pvt. Ltd. Therefore, the observation and direction made in paragraph-23 of the judgment rendered in W.P.(C) 15 No. 15713 of 2016 are being essentially circumvented by the CMC, therefore, interference of this Court is called for.
To substantiate his argument, learned counsel for the petitioner has relied upon the judgment of this Court rendered in W.P.(C) No. 15713 of 2016 (Jagruti Welfare Organization v. State of Odisha and another) disposed of on 18.07.2017; State of Bihar v. P.P. Sharma (1992 (Supp. I) SCC 222; and Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591.
7. Mr. Milan Kanungo, learned Senor Counsel appearing along with Mr. S.R. Mohanty, learned counsel for opposite party no.-2, CMC states that none of the bidders/participants challenged the terms and conditions of eligibility criteria of Solid Waste Management (SWM) tender, as mentioned in clause 4.1.1(b) and 4.3 (d) of the DTCN, and as such, no objection whatsoever by any of the bidders was raised at any point of time. Pursuant to the corrigendum issued on 26.09.2017, the petitioner and two other bidders participated in the tender process. Consequentially, the 16 technical bids of the three bidders were opened on 10.10.2017 in presence of the members of the Evaluation Committee and bidders. On the basis of the complaint received, a letter was issued to Deputy Secretary to Government, G.A. (Vigilance) Department, Cuttack for furnishing of Vigilance Clearance in favour of the petitioner, vide letter no.1981/CHO dated 21.10.2017. In the Evaluation Committee Meeting held on 27.10.2017, it was decided to wait for reply of vigilance department and South Delhi Municipal Corporation. Accordingly, the Vigilance Department furnished information on 16.11.2017. Therefore, 2nd Evaluation Committee Meeting was held on 17.10.2017 and, after detailed evaluation, the evaluation committee found the tender of the petitioner to be unresponsive as per Clause 4.1.1(b) and 4.3(d). As a result, the tender submitted by the petitioner was rejected and suggestion was given to open the Part-II price bid of remaining two bidders after evaluation of technical score basing on presentation by the bidder regarding proposed methodology and planning, policy 17 and practice relating to environment, health safety measures to be adopted in the project.
It is further contended that the petitioner, having participated in the process of bidding and after becoming unsuccessful, cannot turn around and challenge the same by way of present application and, as such, the writ application is liable to be rejected on that score only.
To substantiate his contention, he has relied upon the judgment and order dated 19.07.2016 passed in W.P.(C) No. 5529 of 2016 (Manas Kumar Sahu v. State of Orissa); Jagdish Mandal v. State of Orissa. (2007) 14 SCC 517; judgment dated 27.03.2018 rendered in Civil Appeal No. 3331 of 2018 (Municipal Corporation, Ujjain v. BVG India Limited); and State of Haryana v. Ch. Bhajan Lal, AIR, 1992 SC 604.
8. Mr. Pitambar Acharya, learned Senior Counsel appearing along with Mr. S. Mohanty, learned counsel for opposite party no.3 supported the contention raised by Mr. Milan Kanungo, learned Senior Counsel appearing for 18 opposite party no.2 and stated that since the petitioner has incurred a disqualification, in view of Clause 4.1.1.(b) of SWM tender notice 2017 read with Clause 4.3(b) of the said tender notice and the criminal cases are pending against the petitioner, the tender evaluation committee is justified in their action stating that the bid submitted by the petitioner is unresponsive. Consequentially, no illegality or irregularity has been committed by the authorities to warrant interference of this Court in the present proceeding. To substantiate his contention, he has relied upon the judgment of the apex Court in Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467.
9. We have heard Mr. Ashok Parija, learned Senior Counsel appearing along with Mr. Bigyan Kumar Sharma, learned counsel for the petitioner; Mr. B.P. Pradhan, learned Addl. Government Advocate for the State opposite party no.1; Mr. Milan Kanungo, learned Senior Counsel appearing along with Mr. S.R. Mohanty, learned counsel for opposite party no.2; and Mr. Pitambar Acharya, learned 19 Senior Counsel appearing along with Mr. S. Mohanty, learned counsel for opposite party no.3. Pleadings between the parties having been exchanged, with their consent the writ petition is being disposed of finally at the stage of admission.
10. For just and proper adjudication of the case in hand, a reference is made to Integrated Municipal Solid Waste Management Project of Cuttack Municipal Corporation prepared as per MSW (Municipal Solid Waste) Rules, 2016, on the basis of which tender call notice dated 01.07.2017 has been floated. The relevant clauses of Chapter-4 thereof, which deals with conditions of eligibility of applicants, are extracted hereunder:-
"4.1.1Technical Eligibility Criteria
a) Bidders should be a Company/Trust/Society registered under Indian Company Act-1956/Trust Act/Societies Act, at least for a period of 5 years.
Valid Memorandum of Association and Article of Association along with Incorporation Certificate shall be submitted as proof.
b) Experience of having successfully completed similar works during last 7 years ending last day of month previous to the one in which applications are invited should be either of the following. Three similar completed works costing not less than the amount equal to 40% of the estimated cost. 20
Or Two similar completed works costing not less than the amount equal to 50% of the estimated cost.
Or One similar completed works costing not less than the amount equal to 80% of the estimated cost. SIMILAR Work shall mean any Minicipal Solid Waste Management project undertaken in any Urban Local Bodies/Public Sector undertaking. To arrive at the value of completed works, Value of multiple contracts executed in a financial year shall be considered. For this purpose, the Completion certificates given by the authorities for any one financial year shall be considered. In case value of works executed in any one financial year is not available in the Certificates, the same shall be calculated on a pro-rata basis, considering that the total completed value and the time schedule in days.
xx xx xx 4.2 Financial Eligibility Criteria:
(a) The average Annual turnover should be more than 25.5 Crores for last 3 years and net worth should be positive. The turnover and the net worth should be supported by documents from competent authority. The Bidders should provide audited annual account statement in support of the claim. In case the bidders fail to provide such audited financial statements, the bid will be rejected. The Bid document must be accompanied by the Audited Balance Sheet, Profit and Loss Account and income tax return of last 3 (three) financial years, ending March 31st 2017, duly attested by the Charted Accountant. Self attested Photo copy is to be submitted.
4.3 Technical (Part-I) - (The following documents are to be submitted) The following eligibility criteria will form the Technical (Part I) of the bid : (photocopies duly self attested to be enclosed).
21
a) Bidder should have valid Registration Certificate under Company/Trust/Society registered under Indian Company Act-1956/Trust Act/Societies Act, at least for a period of 5 years. Memorandum of Article & incorporation certificate is to be submitted along with the technical bid document.
b) Bidders should have experience of mechanical Sweeping, manual sweeping, Drain cleaning, Door to Door collection and transportation of municipal solid waste as per the eligibility criteria, for a period of not less than 3 years. Certificate in support of the experience is to be submitted.
c) Bbidders should have experience of Handling and transportation of at least 200 Metric Tons per day of MSW for at least 3 years in any City or part of the city having more than 5 Lakh populations during last 10 years. Certificate in support of the experience is to be submitted.
d) Bidder should submit an affidavit to the effect that, the Company has not been Black listed or Barred or terminated by any Central or State Govt./Govt. Undertakings/ULB during last 5 years in similar work. If any criminal cases are pending against the bidder or member at the time of submitting the bid, then the bid shall be summarily rejected. The bidder shall also submit an affidavit in negation of the above. In case it is detected at any stage that the affidavit is false, he will abide by the action taken by the employer without approaching any court whatsoever for redress."
11. In view of Clause 4.1.1.(b), which provides the experience of having successfully completed similar work, shall mean the Municipal Solid Waste Management Project undertaken in any Urban Local Bodies/Public Sector Undertakings. Such stipulation was suggested by Central 22 Vigilance Commission (CVC), (CTE'S Organisation), vide CVC Office Memorandum No.12-02-01-CTE-6 dated 17.12.2002. The interpretation of above provision is that if the bidder has one similar work, value of that should be more than 80% of the estimated cost. However, for two similar works, the value of each work should be more than 50% of the estimated cost. Accordingly, for three similar works, the value of each work should be more than 40% of the estimated cost. The estimated cost in the present tender for five years is Rs.147.26 crores. So, the only estimated value is Rs.29.45 crores. The petitioner in the year 2016-17 executed similar work; Package-II for Rs.10.22 crores and Package-III for Rs.76.00 crores and the said fact was furnished by the Bhubaneswar Municipal Corporation (BMC). In the said letter, the BMC has indicated amount of transport contract for MSW for 2013-14, 2014-15, 2015-16 and 2016-17 and the amount mentioned are Rs.2.89 crores, Rs.1.38 crores, Rs.1.03 crores and Rs.0.86 crores respectively. Therefore, the value of similar work, as percentage of estimated cost, works out to (i) Package-II - Rs.10.22 crores (34.70%), (ii) 23 Package-III - Rs.16.71 crores (56.74%), (iii) transport contract of Rs.2.89 crores (9.81%). Therefore, on the basis of the materials available, it is event that the value of the similar work, as claimed to be done by the petitioner, is above 50% only in one contract and in others not meeting the eligibility criteria as per the DTCN. Therefore, the contention of the petitioner, that the stipulation in tender means two similar works value total to be more than 50% of the estimated cost, is not correct, even considering two similar works valued together to be more than 100% of the estimated cost is also not a right approach. The contention raised, that Rs.11.65 crores claimed to be the transportation contract value was not taken into consideration, that could not be found in the documents submitted along with the bid by the petitioner. Further, out of three similar works claimed in the petition, only one work value being more than 40% of the estimated cost and the other two being less than 40% of the estimated cost, cannot be considered for reasons as mentioned above. If the petitioner had any doubt with regard to meaning of stipulation, it had liberty to raise the same in the pre-bid 24 meeting and having not done so, the petitioner is estopped from challenging the same and also cannot adopt an interpretation of eligibility clause different than that has been specified in the clause itself.
12. In paragraph 5.31 of the counter affidavit, the opposite party no.2 has justified the acceptance of higher rates quoted by opposite party no.3, which reads as follows:-
"5.31. With regard to the allegation of acceptance of higher rates quoted rates by the Opp. Party No.-3, it is humbly submitted that the negotiated rates offer has been accepted by the corporation as well as the Opp. Party No.1, but, the same is now pending approval before the Finance Departrment, Govt. of Odisha. As a matter of fact, the schedule of rates (SOR) on the basis of which the estimates were last prepared in the year, 2014. Admittedly, in the meantime there has been inflation in every commodity and the prices have gone up, which makes the schedule of rates (SOR), 2014 impracticable. The detailed claculation/justification sheet is annexed herewith and marked as Annexure-H/2 At this juncture, it is necessary to State herer that the rates quoted by the Opp. Party No.3 is less than what the petitioner i.e. M/s Jagruti Welfare Organisation is making by executign work of the adjacent city i.e. Bhubaneswar Municipal Corporation, rate in comparative with Swachha Bharat Mission (SBM) Norm & guideline:-
• M/S. Jagruti Welfare Organisation has signed agreement for Collection & Transportation of Solid Waste of 26(Twenty Six) wards upto Secondary Station near Sainik School in two packages on 6th 25 November, 2013 vide Agreemetn No. 269 & 270. • Population of Bhubaneswar Municipal Corporation as per 2011 Census = 8,40,683 and the total no. of wards of BMC comes to 67. • Hence, Approximate Population of BMC in the year 2017 = 9,90,000 and the average Population of each ward = 9,90,000/67 = 14,776.
• As per SBM Norm and Guideline, maximum quantity of solid waster Generated in 26 wards of BMC in a year = 26 X 365 X 14776 X 0.300 kg/1000 = 42067 Metric Ton.
• In the year 2016-17, BMC has made payment of (Rs. 10.22 Crore + Rs. 16.71 Crore) = Rs.
26.93 Crores for Collection and Transportation of Municipal Solid waste for 26 Nos. of wards of BMC to Secondary Station near Sainik School.
• It is evident that BMC has Paid in the year 2016-17 to the present petitioner= Rs. 26.93 Crore/42067 = Rs. 6401.69 per Metric Ton which is much higher than present tender Rate of Opp. Party No.3."
Though the copy of the counter affidavit was served on learned counsel for the petitioner, but no dispute has been raised in the rejoinder affidavit to the aforementioned contention raised in the counter affidavit by opposite party no.2. In this view of the matter, the contention raised that to 26 circumvent the judgment passed by this Court in earlier writ petition, i.e., W.P.(C) No. 153713 of 2016 disposed of on 18.07.2017 cannot have any justification, in view of the reasons discussed above.
13. Clause 4.3 (d) of the tender condition clearly specifies that if any criminal cases are pending against the bidder or member at the time of submitting the bid, then the bid shall be summarily rejected. In paragraph 5.23 of the counter affidavit the opposite parties have clearly indicated the status of the criminal cases pending before various courts, which reads as follows:-
"5.23 In due diligence of this clause CMC asked for givilance clearance from the vigilance department and the Vig. Department vide letter dated 16.11.2017 furnished the details wherein it was stated that :-
• Vigilance case vide SBP(V) P.S. Case No. 22/14, BBSR (V) P.S Case No. 11/12 has been registered against Sri Smruti Ranjan Parida, Secretary, M/s Jagruti Welfare Organization, BBSR in Sanitation work of Sambalpur Municipality & SWM work of BMC respectively which has communicated vide letter No. 4568/VCO(B) dated 16-11- 2017 by G.A. (Vigilance) Department, Govt.
of Odisha. Commissioner, Sambalpur Municipal Corporation has been moved to 27 recovery of loss amount of Rs. 8,41,500/- from the firm M/s. Jagruti Welfare Organisation vide letter No. 1120/Cr(V) SBP dated 18.04.2015. Order has been passed for submission of charge sheet against Sri Smruti Ranjan Parida, Secretary, M/s.
Jagruti Welfare Organisation,
Bhubaneswar.
• BBSR(V) P.S Case No. 11/12 was registered agaisnt the officials of Bhubaneswar Municipal Corporation, Bhubaneswar and M/s Jagruti Welfare Organisation, Bhubaneswar represented by its Secretary Sri Smruti Ranjan Parida on the allegation of submission of false bills during transportation of garbage under Solid Waste Management System. Investigation of the case is in progress.
• SBP(V) File No. 30/11 was initiated agaisnt the staff of Sambalpur Municipality for irregularities in purchase of uniform for Scavenging staff of Sambalpur Municipality by violating tender procedure. On completion of enquiry, the Dist. Labour Officer, Sambalpur has been moved vide letter No. 2510/VSS-SBP dtd. 17.6.14 to take action as per Section 7,12 of Contract Labour (Regulation and Abolition Act) agaisnt Sri Smruti Ranjan Parida, Secretary, M/s. Jagruti Welfare Organisation, Bhubaneswar and other officials of Sambalpur Municipality."
The petitioner has not disclosed this fact, thereby acted contrary to the provisions contained in Clause 4.3(d). Rather, this amounts to suppression of fact at the time of submission of bid and, more so, by non-disclosure of such pending criminal cases, the petitioner has tried to misrepresent 28 opposite party no.2, thereby it has violated the condition stipulated in the said clause.
14. Much reliance has been placed on the earlier judgment of this Court filed by the petitioner in W.P.(C) No. 15713 of 2016 disposed of on 18.07.2017. The said judgment had been rendered in a petition which was filed challenging the Clause 4.2 of the financial eligibility criteria of the tender condition where the petitioner had not participated in the proceeding itself and after considering the same this Court quashed the said condition stipulated in Clause 4.2(a) of the tender conditions and consequentially set aside the entire tender process and directed for issuing fresh notice inviting tender fixing reasonable financial eligibility criteria taking into consideration the nature and scope of the work to be performed. But in the present case, though argument has been advanced that Clause 4.1.1 (b), the technical eligibility criteria, read with clause 4.3(d), but none have challenged the said criteria including the petitioner. Rather, with eyes wide open and knowing the 29 conditions stipulated in the tender call notice itself, the petitioner participated in the process of tender and having become unsuccessful, challenged the said conditions in the present writ application, which is not permissible in law, as has been held by this Court in Manas Kumar Sahu mentioned supra.
Similar question had come up for consideration in a service matter before the apex Court in Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043 and it has been clearly laid down by a Bench of three learned Judges of apex Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
In Madan Lal v. State of Jammu and Kashnir, AIR 1995 SC 1088 the apex Court held that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to 30 him he cannot turn round and subsequently contend that the process of interview was not fair. In view of the law laid down by the apex Court, it is no more res integra that if the petitioner had participated in the tender process, without any objection to the eligibility criteria mentioned in the tender call notice, after become unsuccessful in the tender process, he cannot turn around and challenge the same in this writ application. Therefore, at the behest of the petitioner the writ application is not maintainable.
15. On perusal of the writ application it is evident that the petitioner has not impleaded other tenderers, who had participated in the tender process. As per the tender conditions and PWD Manual, 2014, pre bid meeting was held on 15.09.2017 in presence of the prospective bidders and members of the evaluation committee. In the said meeting, six intending bidders named below were participated:-
1. M/s Jagruti Welfare Organisation
2. M/s. DELHI MSW SOLUTIONS Limited, DELHI
3. M/s GLOBAL WASTE MANAGEMENT CELL PVT. LTD
4. Sri Gurpal S Dhamija
5. M/s Jyoti Enviro-Tech Pvt. Ltd., Lucknow 31
6. M/s. Kaviraj MBB Waste Management Pvt.
Ltd. Mumbai But after issuance of first corrigendum notice on 26.09.2017 with modified decision taken, three bidders participated in the tender process, namely, the petitioner, the opposite party no.3 and one M/s AG Enviro Infra Projects Pvt. Ltd. The petitioner has not impleaded all the participants in the tender process.
The apex Court in Afcons Infracture Ltd. v. Nagpur Metro Rail Corporation Ltd., AIR 2016 SC 4305 :
2016 Supreme (SC) 716; Central Coalfields Lt. v. SLL-SML (Joint Venture Consortium), 2016(8) SCALE 99 held that the view of the High Court, that the eligible bidders were not entitled to be either impleaded in the petition filed in the High Court by the ineligible bidder or were not entitled to be heard, was negated by the apex Court and it was held that in order to avoid such situation that it would be more appropriate for the constitutional Courts to insist on all eligible bidders being made parties to the proceedings filed by an unsuccessful or ineligible bidder. In view of such finding 32 arrived at by the apex Court, due to non-impletion of the other bidders, the writ petition suffers from non-joinder of parties. This Court has also, taking into consideration the judgment of the apex Court, dismissed the writ petition in M/s GDCL - KRISHNA - TCPL JV v. State of Odisha, 2017 (Supp.-II) OLR 830.
16. As per Clause 4.3(d), a bidder is required to submit an affidavit with regard to pendency of any criminal case against its member at the time of submitting the bid. Admittedly, on the basis of the materials available on record, the petitioner has not filed affidavit disclosing the criminal cases pending against it or its member. It is contended that criminal cases starts from the date of filing of the charge sheet and, as such, whatever information the opposite party no.2 had received and on that basis the rejection had been made that could not have been done because in no case charge-sheet has been submitted till date. But there is no dispute with regard to pendency of the criminal cases against the petitioner, as mentioned in the counter affidavit filed by 33 opposite party no.2. Whether the charge-sheet has been submitted or not is not a matter to be considered at this stage, the reason being only to see the bona fides of the person concerned and its antecedent such affidavit is required in terms of clause 4.3(d) of the tender call notice.
17. Reliance has been placed by learned counsel for the petitioner on P.P. Sharma mentioned supra, wherein the issue was that whether an application under Section 482, Cr.P.C. for quashing the charge-sheet should be entertained before cognizance taken by a criminal Court. The apex Court held that entertaining the writ petitions against charge-sheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amounts to pre- trail of a criminal trial. Therefore, under no circumstance a writ petition should be entertained. The said judgment has been relied upon in Umesh Kumar (supra), where it has been held that the scheme for enquiry/trial provided under Cr.P.C. is quite clear. After investigation, report under Section 173(2) Cr.P.C. is to be submitted before the 34 competent Court, i.e., the Magistrate having jurisdiction in the matter and the Magistrate may take cognizance under Section 190 Cr.P.C. However, it is still open to the Magistrate to direct further investigation under the provisions of Section 173(8) Cr.P.C. But in the above mentioned judgments of the apex Court, on which reliance has been placed by learned counsel for the petitioner, law has been settled on the factual matrix of the said cases, which were under consideration in those judgments, but the said judgments have no application to the present context and the same are distinguishable.
18. In Krishnamoorthy (supra), while considering a case under the Representation of People Act, 1951, the apex Court held that the candidate has to make a declaration in the prescribed Form-26 under Rule 4A of the Conduct of Elections Rules, 1961 the candidate has to give full information with regard to case/First Information Report, number/numbers together with the complete details of the Police Station/District/State concerned. But such 35 information is required in view of the fact that the criminalistion of politics being anathema to sanctity of democracy, voters have fundamental right to know in entirety and in full detail, the antecedents of candidates and concealment, suppression or misinformation about their criminal antecedents deprives voters of making informed choice of candidate which eventually promotes criminalization of politics. For non-disclosure of pendency of criminal case, the election was declared to be null and void. Applying the said analogy to the present context, since the condition stipulated in the tender documents Clause 4.3(d) requires that the petitioner has to make a disclosure of criminal cases pending against it or its member, the non- disclosure of the same amounts to rejection of the bid itself summarily.
19. In Ch. Bhajan Lal (supra), the apex Court had taken into consideration quashing of FIR and investigation in exercise of inherent powers under Article 226 of the Constitution of India or under Section 482, Cr.P.C. and also 36 fixed guidelines for the said purpose. If the allegations in the complaint do not clearly constitute a cognizable offence then, the apex Court held that it is not justified to quash the FIR, but the same has been considered in a different context altogether, which has no relevance to the present context.
20. The oft quoted judgment of the apex Court in Jagdish Mandal (supra) with regard to power of the Court to interfere with the tender matters in exercise of power under judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. This question no more remains res integra, which has also been considered in Municipal Corporation, Ujjain mentioned supra.
21. In view of the aforesaid facts and circumstances of the case, we are of the considered view that the reason assigned in the impugned proceedings of meeting of 60th Contract Standing Committee dated 21.11.2017 in Annexure-4 rejecting the tender of the petitioner as unresponsive, as it violates the conditions stipulated in the 37 tender documents in Clause 4.1.1(b) read with clause 4.3(d), is justified. Apart from the same, the petitioner, having participated in the process of bid, cannot turn around and challenge the same by filing the present writ application. More so, the writ application also suffers from non-joinder of proper parties. On all these counts, the writ application is liable to be dismissed and the same is hereby dismissed. No order as to costs.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 11th May, 2018, GDS/Ajaya True Copy Sr. Steno