Madhya Pradesh High Court
Shree Mangalam Buildcon (I) Private ... vs Public Works Department on 27 September, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
W.P. No.18690/2022 --1--
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 27th OF SEPTEMBER, 2022
WRIT PETITION No. 18690 of 2022
BETWEEN:-
SHREE MANGALAM BUILDCON (I) PRIVATE LIMITED THROUGH
ITS AUTHORISED OFFICER SHRI BHAVSAR DEVANG 90 NEW
UMARIYA COLONY, MHOW, DISTRICT-INDORE (MADHYA
PRADESH)
.....PETITIONER
(SHRI BRIJ MOHAN MAHESHWARI, LEARNED COUNSEL FOR THE
PETITIONER)
AND
PUBLIC WORKS DEPARTMENT THROUGH PRINCIPAL SECRETARY
1.
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. E TENDER OPENING MEMBER COMMITTEE/ EXECUTIVE
ENGINEER INDORE DEVELOPMENT AUTHORITY 7 RACE COURSE
ROAD, INDORE (MADHYA PRADESH)
3. AGROH INFRASTRUCTURE DEVELOPERS PVT. LTD. BUNGLOW NO.
74 IN FRONT OF GOVERNMENT GIRLS SCHOOL MHOW, DISTRICT
INDORE (MADHYA PRADESH)
CHIEF EXECUTIVE OFFICER INDORE DEVELOPMENT AUTHORITY
4.
7, RACE COURSE ROAD,INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SENIOR ADVOCATE, SHRI VINAY SARAF APPEARED FOR THE
RESPONDENT.
SHRI BHASKAR AGRAWAL APPEARING ON BEHALF OF ADVOCATE
GENERAL.
SHRI YASHPAL AHLUWALIA, LEARNED COUNSEL FOR THE
W.P. No.18690/2022 --2--
RESPONDENT [R-3].
MS. MINI RAVINDRAN, LEARNED COUNSEL FOR THE RESPONDENT
[P-RES])
This petition coming on for admission this day, JUSTICE VIVEK
RUSIA passed the following:
ORDER
The petitioner has filed this present petition challenging the the eligibility of fulfillment of technical criteria by the respondent No.3 for the work of construction of Flyover at Bhawrasla (Lavkush) square along MR10 Road and Super Corridor. A Notice Inviting Tender (NIT) dated 12.05.2022 was issued by Indore Development Authority (IDA) in which the the petitioner and respondent No.3 participated. After opening the bid, the petitioner and the respondent No.3 along with other bidders were declared technically qualified, accordingly their price bids were opened in which the respondent No.3 was found lowest and accordingly, the tender committee recommended for awarding the work.The petitioner rushed to this Court alleging that the respondent No.3 is not fulfilling the criteria No.3.
3. Eligibility Criteria:-
3.1 Eligibility criteria for applicant firm shall be as under:-
(i) Experience of having completed/substantially completed works as contractor for any State Govt., Central Govt., Corporation, Development authorities as below.
(a) One work of Flyover/ROB/Grade Separator/ Major Bridge with PSC super structure, cost of the same shall not be less than the Rs. 65 Cr. (excluding GST/Service Tax) during the last 7 years from the date of NIT;
(b) Two work of Flyover/ROB/Grade Separator/Major Bridge with PSC super structure, cost not less than the Rs.40 W.P. No.18690/2022 --3--
Cr. (excluding GST/Service Tax) during the last 7 years from the date of NIT.
Note:-
1. The experience should be as on date of publication of this NIT.
2. Certificate issued by Principal Employer or his authorized person not below the rank, of Superintending Engineer should be submitted.
3. The bidders are requested to enclose only requisite and relevant data which has been asked for.
Attachment of irrelevant data shall attract to disqualify the bid. In support of above the bidder should enclose not more than 3 relevant certificates.
4. Enhancement factor as per clause 3.2 will be applicable.
5. Only those substantially completed work will be considered which are open for traffic & certified as such by the competent authority not below the rank of Superintending Engineer.
6. The Bidder should not have been blacklisted/ debarred/ in negative list by any of the government department/ semi- government department or local self government during last 5 years. Provide self declaration on stamp paper duly notarised.
(INFORMATION IS TO BE GIVEN IN RELEVANT FORM)
ii) Annual average turnover:
Minimum average annual turnover for civil construction of the firm as per the audited balance sheet for the last five financial years (i.e. 2016-2017 to 2020-2021) should not be less than Rs.52.0 Cr.
Note:
(a) The statement of turnover from civil work shall be supported by a certificate from a Chartered Accountant.
W.P. No.18690/2022 --4--
(b) The successful completed work/ substantially
completed certificate should be clearly marked separately in the Technical Proposal.
(c) The financial year means year starting from 1st April to 31st March of next year.
(d) If the certificates mentioned in 3.1 (i) (a) /(b) issued by employer is for inclusive values then a certificate from CA for its bifurcation into base value and taxes separately, should be submitted.
As wrong declaration has been given about the experience of construction of work Flyover/ROB/Grade Separator/Major Bridge of the cost upto Rs.65 Crores and prima facie, believing on the aforesaid contention, this Court called upon IDA as well as respondent No.3 to explain the same as this matter was relating to fulfillment of the technical qualification.
The respondent No.2, 3 and 4 have filed their replies contending that by way of amendment No.1 dated 25.07.2022, the criteria No.3 has been amended, which is reproduced below:-
"2) Considering the queries raised by the bidder during pre-
bid meeting, following amendments are made in this tender:-
Sr. Bid Document As per Tender Document After amendment now will be read as No. Reference under 1 VOLUME - 1 (a) One work of (a) One work of Flyover/ROB/Grade SECTION - 1 Flyover/ROB/Grade Separator/Major Bridge with PSC super Eligibility Separator/Major Bridge structure, cost of the same shall not be Criteria Clause with PSC super structure, less than the 80% of tender amount 3.1 cost of the same shall not (Rs.53.2 Cr.) (excluding GST/Service be less than the Rs.65 Cr. Tax) during the last 7 years from the date (excluding GS/Service of NIT;
Tax) during the last 7 OR years from the date of NIT (b) Two works of Flyover/ROB/Grade ; Separator/Major Bridge with PSC super OR structure, each of cost not less than the W.P. No.18690/2022 --5--
(b) Two work of 60% of tender amount (Rs.39.9 Cr.) Flyover/ROB/Grade (excluding GST/Service Tax) during the Separator/ Major Bridge last 7 years from the date of NIT with PSC super structure, OR cost not less than the (c) Three works of Flyover/ROB/Grade Rs.40 Cr. (Excluding Separator/Major Bridge with PSC super GST/Service Tax) during structure, each of cost not less than the the last 7 years from the 40% of tender amount (Rs.26.6 Cr.) date of NIT; (excluding GST/Service Tax) during the last 7 years from the date of NIT.
2 VOLUME - 1 There are 6 points in Addition of one more point which is as SECTION - 1 Note:- below:-
Eligibility Criteria, Clause 7. If one or more Flyover/ROB/Grade
3.1 Separator/Major Bridge is included in one contract, such work will be treated as single work & cost of all such bridges will be considered as cost of 1 work.
3 VOLUME - 1 Annual average SECTION - 1 turnover: Minimum Annual average turnover: Minimum Eligibility average annual turnover average annual turnover for civil Criteria Clause for civil construction of construction of the firm as per the audited 3.1 ii. the firm as per the audited balance sheet for the last five financial balance sheet for the last years (i.e. 2016-2017 to 2020-2021) five financial years (i.e. should not be less than Rs.45 Cr. 2016-2017 to 2020-2021) should not be less than Rs.52.0 Cr.
And along with that Note, No.7 has been added which makes the respondent No.3 qualified. The respondent No.3 has also filed a certificate issued by MPRDC dated 20.07.2022 that the respondent No.3 has completed the construction of two major bridges valuing to Rs.162.67 Crore, therefore, in view of the amendment No.1 and Note No.7 which make the respondent No.3 technically qualified for the work in question and even otherwise, it is for the members of tender committee who are technically experts to evaluate the technical as well as the financial qualifications of the bids, this Court cannot sit as an appellate court to reexamine the tender conditions as held by Apex Court in the W.P. No.18690/2022 --6--
case of M/S. N.G. Projects Limited Vs. Vinod Kumar Jain & others (Civil Appeal No.1846 of 2022). Hence, we do not find any ground to interfere with the matter.
The petitioner is an experience contractor in the field of constructions, roads and flyovers. The petitioner understands the amendment in the NIT. The petitioner has approached this Court by suppressing the amendment. It was in the knowledge of the petitioner that this amendment makes the respondent No.3 technically eligible for that contract and despite it, by suppressing this fact has filed the present petition, since, this matter is of the construction of ROB, therefore, we took up this matter on priority basis virtually on every third day and the same has wasted valuable time of the Court by suppressing the important material, hence, the present petition is dismissed with the cost of Rs.One Lac.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
N.R.
Digitally signed by
NARENDRA KUMAR
RAIPURIA
Date: 2022.09.29
19:10:50 +05'30'