Himachal Pradesh High Court
M/S Ccc-Him vs Sjvnl (A Joint Venture Of Government Of ... on 30 September, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No. 5931 of 2014
.
Date of Decision: 30.9.2020
M/s CCC-HIM, Continental House ...Petitioner.
Versus
SJVNL (A Joint Venture of Government of India &
Government of Himachal Pradesh ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner:
r Mr.B.C. Negi, Senior Advocate, with Mr.Nitin
Thakur and Mr. Vipul Sharda, Advocates, through
Video Conferencing.
For the Respondent: Mr.K.D. Shreedhar, Mr.Ramakant Sharma and
Mr.Sushil Kumar Jain, Senior Advocates with
Ms.Devyani Sharma, Ms.Shreya Chauhan and
Mr.Harsh Jain, Advocates, for respondent No.1,
through Video Conferencing.
Mr.Vir Bahadur Verma, Central Government
Counsel, for respondent No.2, through Video
Conferencing.
Vivek Singh Thakur, J.
By filing this petition, petitioner has assailed annulment of bidding process notified vide Notification dated 30.07.2014 (Annexure P-35) issued by respondent-SJVNL in respect of construction of Civil Works Package of Dhaulasidh Hydroelectric Project (66 MW) on International Competitive Bidding on item rate basis in District Hamirpur of Himachal Pradesh on the grounds that respondent-SJVNL has acted arbitrarily, unfairly and illegally by passing unilateral non-speaking order, without giving proper personal hearing to the petitioner, which suffers from inherent legal infirmity on account of patently flawed, discriminatory, arbitrary and unreasonable decision making process. It is further claim of the petitioner 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 2 CWP No. 5931 of 2014 that despite petitioner being lowest bidder, annulment of the process has caused loss not only to the petitioner, but also to the public interest as inviting of fresh bid would definitely escalate the cost of the project, .
whereas, petitioner is still ready to perform the work on the basis and at the rate quoted in his earlier bid.
2. Respondent-SJVNL has contested the claim of the petitioner mainly on the ground that bidding process was not complete and it was at the stage of examination under Clause-28 of Instructions to Bidders (in short 'ITB') and petitioner at any point of time was not determined or declared as 'selected bidder' on the basis of lowest Bid price and responsive bid under Clause 32.1 of ITB, which was to be done after undertaking exercise under Clause 30 of ITB and, therefore, he was not determined as lowest bidder. As per respondents, petitioner was provided fair opportunity of representation and personal hearing alongwith its other representatives, including counsel, who were heard by the competent officer of respondent- SJVNL and considering contentions of the petitioner raised in the writ petition, oral submissions during personal hearing and relevant provisions of bidding document and written reply dated 30.07.2014, submitted by petitioner, competent authority has taken a conscious decision of annulling the bidding process for the reasons stated in the impugned Notification, which are just, valid, reasonable and self-speaking.
3. Union of India, through Ministry of Power was added as respondent No. 2 vide order dated 28.10.2014 in order to ascertain status of Public Investment Board (in short 'PIB') clearance with respect to project in reference as one of the reasons for annulling the bidding process was that project was not having PIB clearance.
4. Learned counsel for the respondents during course of arguments has referred pronouncements of the Apex Court in Tata Cellular Vs. Union of India (1994) 6 SCC 651; Air India Ltd. Vs. ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 3 CWP No. 5931 of 2014 Cochin International Airport Ltd. & others (2000) 2 SCC 617; Mater Marine Services (P) Ltd. Vs. Metcalfe and Hodgkinson (P) Ltd. and Another (2006) 6 SCC 138; Rajasthan Housing Board Vs. G.S. .
Investments (2007) 1 SCC 477; Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal (2007) 8 SCC 418; Sethi Auto Service Station Vs. DDA (2009) 1 SCC 180; Shimnit Utsch India Pvt. Ltd. Vs. W.B. Transport Infrastructure & Development Corp. Ltd., (2010) 6 SCC 330; Union of India Vs. Kushala Shetty (2011) 12 SCC 69; Mutha Associates & Others Vs. State of Maharashtra (2013) 14 SCC 304; Union of India Vs. Vartak Labour Union (2011) 4 SCC 200; Uttar Pradesh Avas Evam Vikas Parishad & Others Vs. Om Prakash Sharma (2013) 5 SCC 182; Rishi Kiran Logistics Private Limited Vs. Board of Trustees of Kandla Post Trust and others, (2015) 13 SCC 233; South Delhi Municipal Corporation Vs. Ravinder Kumar (2015) 15 SCC 545; State of U.P. Vs. Al Faheem Meetex Private Ltd. (2016) 4 SCC 716; State of Jharkhand and others Vs. CWE- Soma Consortium (2016) 14 SCC 172; Montecarlo Ltd. Vs. NTPC Ltd. (2016) 15 SCC 272; Haryana Urban Development Authority and others Vs. Orchid Infrastructure Developers Private Limited (2017) 4 SCC 243; Pimpri Chinchwad New Township Development Authority Vs. Vishnudev Cooperative Housing Society (2018) 8 SCC 215; Municipal Corporation, Ujjain & Another Vs. BVG India Ltd. & Another (2018) 10 SCC 462; PSA Mumbai Investments PTE. Limited Vs. Board of Trustees of the Jawaharlal Nehru Port Trust and another (2018) 10 SCC 525; Municipal Council Neemuch Vs. Mahadeo Real Estate and others, Civil Appeal Nos. 7319-7320 of 2019, decided on 17.9.2019; and Yashwant Sinha Vs. Central ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 4 CWP No. 5931 of 2014 Bureau of Investigation Review Petition (Crl.) No. 46/2019, decided on 14.11.2019.
5. Principles propounded in the aforesaid judgments are not in .
dispute. However, considering entire facts and circumstances of the case, material placed before me and submission made by learned counsel for parties, I do not find it necessary to refer all those judgments as issue raised herein can be and is being decided on the basis of factual matrix of the case with reference to relevant Clauses of ITB.
6. Undisputed facts, in present case, are that respondent-SJVNL has invited applications by way of International Competitive Bidding, vide Pre-Qualification Document dated 07.04.2011 for execution of Civil Works Package of Dhaulasindh Hydroelectric Project (hereinafter referred to as 'Project') on item rate basis by way of International Competitive Bidding through E-procurement Mode. Out of 11 bidders 10 bidders, including the petitioner, were shortlisted and Notification in this regard was issued on 27.04.2012.
7. On 29.04.2012, respondent-SJVNL issued notice to invite bids from the Pre-Qualified eligible bidders on item rate basis (Annexure P-5) and alongwith this Notification, ITB were also notified. Relevant Clauses of ITB for the purpose of adjudication of instant petition are as under:-
"D. SUBMISSION OF BIDS
21. Submission of Documents in Physical Form
............
22. Submissions of Documents through E-Mode
22.1 The following documents duly digitally signed by the person
authorized to sign the Bid shall be uploaded on SJVN's E-tender portal, www.tenderwizard.com/SJVNL on or before the Bid Due Date:
I. Duly filled in "Bid Submission Form" in accordance with Form A-I specified in Section-2, Part-II.
II. Qualification Information and documents other than submitted in Physical form in accordance with Clause-5 of ITB.::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 5 CWP No. 5931 of 2014
III. Priced Hill of Quantities (BOQ), Vol-IV of the Bidding Document.
IV. Addendum/Corrigendum/Clarifications to the Bidding Document, if any.
.
V. The documents listed under Section-2 Part-I (Qualification Information).
VI. Section-3, Part-II (Particular Conditions).
VII. Forms A-3, A-4, A-6 & B-1 to B-5 of Forms of Bid and Contract Forms contained in Section-2, Part-II to be submitted filled in or blank as the case may be.
VIII. Any other information/documents required to be completed and submitted by bidders in accordance with instructions given in ITB.
23. .........
24.
r Late Submission of Bids The Employer shall not consider any Bid/Document that arrives after the Deadline for Submission of Bids for whatsoever reasons. Any Bid/Document received by the Employer after the deadline for submission of bids shall be declared late, rejected and returned unopened to the Bidder.
25. Modification and Withdrawal of Bids 25.1 Bidders may modify or withdraw their Bids on E-mode before the Bid Due Date.
25.2 No bid may be withdrawn substituted or modified after the Bid Due Date.
25.3 Withdrawal or modification of a Bid after the Bid Due Date may result in forfeiture of the Bid Security in terms of Clause 18 of the ITB.
E. Bid Opening and Evaluation
26. Bid Opening
26.1 The Employer will open the Physical Documents and Bid
through E-mode in the presence of Bidders' designated
representatives who choose to attend at 1430 Hrs of 2.06.2012 in the office of AGM (Contracts). The Bidders' representatives who are present shall sign a register evidencing their attendance. No Bid shall be rejected at the Bid opening except for the reasons laid under Clause 23.3 & 24 above.
27. .........
28. Examination of Bids and Determination of Responsiveness 28.1 Prior to detailed evaluation of Bids, the Employer will determine whether each Bid: (a) has been properly signed by an authorized signatory holding Power of Attorney in his favour; (b) is accompanied by the required Bid Security and; (c) it contains all the information (complete in all respects) as required in the Bidding ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 6 CWP No. 5931 of 2014 Document (in formats same as those specified) and (d) is responsive to the requirements of the Bidding documents. 28.2 A substantially responsive Bid is the one which conforms to all the terms, conditions and specification of the Bidding Documents .
including time for completion, without material deviation or reservation or omission. A material deviation or reservation or omission is the one which (a) affects in any substantial way the scope, quality or performance of the Works specified in the Contract, or (b) limits in any substantial way, in consistent with the Bidding Document, the Employer's rights or the Bidder's obligations under the Contract, or (c) whose rectification would unfairly affect the competitive position of other Bidders presenting substantially responsive Bids.
28.3 During the evaluation of bids, the following definitions apply:
a) "Deviation" is a departure from the requirements specified in the Bidding Document;
b) "Reservation" is the setting of limiting conditions or withholding from complete acceptance of the requirements specified in the Bidding Document; and
c) "Omission" is the failure to submit part or all of the information or documentation required in the Bidding Document.
28.4 If a Bid is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction, alteration, modification, substitution or withdrawal of the non-conforming deviation, condition, qualification, or reservation. 28.5 The Employer may waive any minor non-conformity or irregularity in a bid that does not constitute a material deviation and that does not prejudice or affect relative ranking of any bidder.
29. Correction of Errors 29.1 Bids determined to be responsive will be checked by the Employer for any arithmetic errors. Errors will be corrected by the Employer as follows:
(a) if there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and quantity, the unit price shall prevail and the total price shall be corrected. In case of discrepancy between unit rate stated in figures and the unit rate stated in words, the unit rate stated in words shall prevail;
(b) In case of discrepancy between the grand total / sub total as indicated by the Bidder and the total price computed based on unit rates, then the bid price as computed from unit rates stated in words shall prevail and the grand total/sub total shall be corrected accordingly.::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 7 CWP No. 5931 of 2014
29.2. The amount stated in the Bid will be adjusted by the Employer in accordance with the above procedure for the correction of errors and shall be considered as binding upon the bidder. If the .
Bidder does not accept the same, its bid shall be disqualified.
30. Evaluation and Comparison of Bids 30.1 The Employer will evaluate and compare only the Bids determined to be substantially responsive.
30.2 In evaluating the Bids, the Employer will determine for each Bid, the evaluated Bid Price by adjusting the Bid Price as follows:
a) Making any correction for errors pursuant to Clause 29 of ITB; and
b) Making any appropriate adjustment for any other acceptable variations, deviation and discounts offered, if any.
31. Employers right to Accept or reject bids.
31.1 Notwithstanding anything ot the contrary contained in the Bidding Documents
(a) the Employer reserves the right to accept or reject any of the Bids and/or to annul the bidding process and reject all bids, at any time prior to award of contract, without assigning any reasons whatsoever and without thereby incurring any liability to the affected bidder or bidders or any obligation to inform the affected bidder or Bidders of the grounds for the Employer's action.
(b) the Employer reserves the right not to proceed with the Bidding Process at any time, without notice or liability, and without assigning any reasons therefor.
(c) in case of annulment, Bid security shall be promptly returned to the Bidder(s).
F. AWARD OF CONTRACT
32. Award Criteria
32.1 After evaluating the bids, the Employer shall award the Contract to the Bidder at his quoted price, including any corrections carried out (as per Clause 29 of ITB) and whose Bid has been determined to be responsive to the Bidding documents and who has the lowest evaluated Bid Price (the "Selected Bidder")."
8. Out of 10 Pre-Qualified Bidders, 6 bidders, including petitioner, had submitted their Bids which were opened and Bids submitted on E-Mode were downloaded in presence of representatives of M/s ITI Ltd., an agency providing E-Procurement facilities to SJVNL (hereinafter referred to as ITI). Prior to detailed evaluation of Bids, these Bids were taken for preliminary ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 8 CWP No. 5931 of 2014 evaluation, in accordance with Clause 28 of ITB for examination of Bids and determination of responsiveness.
9. On preliminary scrutiny of Bids submitted in Physical Form and .
through E-Mode, on 31.07.2013, it was observed by the Technical Evaluation Committee (in short 'TEC') that all the Bids have been signed by authorized signatory and accompanied with requisite Bid Security. However, a discrepancy was found with respect to information to be provided, complete in all respects, as required in the Bid Document, in Formats as specified in Clauses 21 and 22, which were indicated in preliminary evaluation report of the TEC, which read as under:
Sr.No. Requirements as per Bidder's submission bidding documents A SEW Infrastructure Ltd.
i. As per requirements of The bidder has submitted the specified bidding documents, the bid documents in physical form as well as those shall comprise of documents required on e-mode. to be submitted in physical form (clause 21 of ITB) and mode (clause 22 of ITB).
B Hindustan Construction Company Ltd.
i. As per requirements of The bidder has submitted the specified
bidding documents, the bid documents in physical form as well as those shall comprise of documents required on e-mode.
to be submitted in physical form (clause 21 of ITB) and mode (clause 22 of ITB).
C Gammon Indian Ltd.
i. As per requirements of The bidder has submitted the specified
bidding documents, the bid documents in physical form as well as those shall comprise of documents required on e-mode. to be submitted in physical form (clause 21 of ITB) and mode (clause 22 of ITB).
D Soma - Bureya JV
i. As per requirements of The bidder has submitted the specified
bidding documents, the bid documents in physical form.
shall comprise of documents On E-Mode, under Form A-6 (Technical to be submitted in physical Proposal), bidder has mentioned that the form (clause 21 of ITB) and Mobilization Schedule is enclosed (copy mode (clause 22 of ITB). placed opposite at CP-16). However, the same has not been found on downloading and needs to be verified through IT& C Department. Whether Bidder has uploaded this document or not on SJVN's e-tender portal before bid submission date & time i.e. 16.07.13 at 1300 hrs. E Patel Engineering Ltd.
i. As per requirements of The bidder has submitted the specified bidding documents, the bid documents in physical form. ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 9 CWP No. 5931 of 2014 shall comprise of documents On E-Mode, under Form A-6 (Technical to be submitted in physical Proposal), bidder has mentioned that the form (clause 21 of ITB) and Quality Control Procedure is enclosed (copy mode (clause 22 of ITB). placed opposite at CP-15). However, the same has not been found on downloading and needs to be verified through IT& C .
Department. Whether Bidder has uploaded
this document or not on SJVN's e-tender
portal before bid submission date & time i.e.
16.07.13 at 1300 hrs.
F. CCC- HIM JV
i. As per requirements of The bidder has submitted the specified
bidding documents, the bid documents in physical form. However,
shall comprise of documents Bidder has not submitted on E-Mode the to be submitted in physical following:
form (clause 21 of ITB) and i) Addendum/Corrigendum to the bidding mode (clause 22 of ITB). documents.
ii) constitution and legal status of the bidder,
iii) Section-3, Part-II -Particular Conditions.
Under Form-A-6 (Technical Proposal), bidder has mentioned that the site organization r chart, method statement, mobilization & construction schedule, equipment deployment schedule, broad calculations and quality control procedures etc. are attached as Annex-C to Annex-H respectively (copy placed opposite at CP 14). However, the attachments to Form-A-6 (technical proposal) could not be seen/downloaded on e-mode.
As such, if the above documents are available on SJVN's e-tender portal and are uploaded before bid submission date & time i.e. 16.07.13 at 1300 hrs., then the same may be made available to the committee for further evaluation.
10. With aforesaid observations, before proceeding further with detailed evaluation of Bids TEC, in its Preliminary Evaluation Report, had recommended the matter regarding D(i), E(i) and F(i) (petitioner) to IT & C Department, for opinion, having expertise on the issue, vide its report dated 31.07.2013 for verifying whether the complete documents had been uploaded on the portal before Bids' submission date and time, or not and if yes, then to provide/download the documents. In response to it, IT& C Department had advised that Bidders may be asked to submit proof of having uploaded requisite documents on E-Procurement portal of respondent-SJVNL. From responses of two Bidders other than the petitioner i.e. D(i) and E(i) referred supra, it revealed that the documents were not uploaded, whereas petitioner had claimed that documents were ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 10 CWP No. 5931 of 2014 uploaded before Bid's submission deadline with proof thereof. The proof so provided was furnished to IT& C Department, which further forwarded the submissions of the petitioner to M/s ITI for examining the issue. The said .
Agency had informed that from the documentary proof provided it was clear that Bidder had uploaded all the documents in its' 'Document Library', but the same was not attached to the particular tender and further that the said Agency had no access to those documents, as such, copies of same could not be provided. IT & C Department had also informed that the said documents could only be downloaded by Bidders themselves using their Login I.Ds/Passwords, but not by anybody else.
11. On the basis of aforesaid exercise undertaken on 23.09.2013, it was summarized by TEC as under:-
"(i) Bidder has uploaded the documents in his Document Library before the bid submission date and time but not attached to particular, tender due to which same could not be downloaded.
(ii) As understood, the said library exists within the SJVN's portal; however, the same can only be accessed by using the login id/password of the bidder."
12. Simultaneously TEC had also undertaken exercise to evaluate responsiveness Bid and in its third Committee Report dated 23.09.2013 it was observed that petitioner was Lowest Price Bidder at the time of Bid opening, based on price announced in presence of representatives of other Bidders, however, it was observed that it may change after detailed evaluation and before further detailed evaluation, opinion of Law Department vide report dated 23.09.2013 was also solicited with respect to the documents uploaded in the Document Library, but not attached with the tender, which reads as under:-
"1. Whether the documents available in the document library can be downloaded using bidder's login id/password in presence of committee members and other interested bidders representatives.
i. If reply is Yes, then in the instant case what will be legal option in case there is any objection by other bidders.::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 11 CWP No. 5931 of 2014
ii. If reply is No, then in that case what will be the legal option with SJVN if M/s CCC-HIM JV takes recourse of legal action.
2. Whether M/s CCC-HIM JV can be advised to submit afresh .
the technical proposal i.e. site organization chart, method statement, mobilization & construction schedule, equipment deployment schedule, broad calculations and quality control procedures etc. instead of downloading available documents from the document library."
13. Vide 4th Committee report dated 07.10.2013, based on opinion of the Law Department, TEC recommended that before proceeding further with detailed evaluation, petitioner may be asked to:
"1) Submit the hard copy of the documents already uploaded in his document library in a sealed envelope and each page duly signed by the authorized signatory signing the bid.
2) Further, on the same day, the bidder shall download and make available the documents from their "document library" by using their login id/password and DSC in the presence of authorized representative of all the bidders, if any, and committee members, if the same have been uploaded before the bid submission deadline.
3. Also, the bidder shall submit the undertaking that he had uploaded the documents well before the cutoff date of the submission of the bid as well as the contents of the uploaded documents and that of hardcopy are similar."
14. The process, in respect to above proposal, was recommended to be completed on or before 11.10.2013, so as to enable TEC to make final recommendations.
15. Vide Civil Contracts Department's IOM dated 26.09.2013, respondent-SJVNL had also made further inquiries from ITI Limited which were replied by ITI Ltd. vide letter dated 18.10.2013. The references and replies thereto are as under:-
"1. It may be apprised as to why such an incident has occurred.
Reply- The supporting documents were uploaded by the bidder to their document library and not attached to the tender. Also, the bidder continental Construction Corporation Limited is the old vendor and participated in other e-tenders of SJVNL.
2. Is it a technical fault on part of SJVN or on part of its service provider i.e. M/s ITI Ltd.?::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 12 CWP No. 5931 of 2014
Reply: neither its fault of the SJVNL nor the ITI Ltd.
3. Or is it a mistake on the bidder's part.
Reply: The supporting document has to be attached by the bidder to the particular tender.
.
4. What are the characteristics of the document library and whether the changes made in the library can be traced?
Reply: document library is a generic place where the supporting document may be uploaded by the bidder and can be attached to any number of tenders as per the requirement of the tender. Bidder can make the changes in the document library at any time. Documents uploaded by the bidder in document library can be only accessed by the bidder, neither ITI nor department can access the documents of the library."
16. In pursuant to recommendations made by Tender Evaluation Committee vide 4th report dated 7.10.2013, communications were sent to six bidders, including petitioner, informing them about date and time fixed for downloading the documents as proposed on the basis of opinion of Law Department, but in response thereto three bidders had shown their reservations to allow downloading of documents at that stage. Response of these bidders was summarized by the Tender Evaluation Committee in its 5th report dated 22.10.2013, which reads as under:-
"i) M/s HCC have submitted that based on their understanding of provisions of tender document and addenda/corrigenda issued in this respect, they believe it inappropriate to download any document at this stage and that due to prior commitments, they cannot depute a representative to attend the above (copy of bidder's response placed opposite as Annex-1).
ii) M/s Gammon India Ltd. have submitted that they do not agree with this process and reserved our legal rights to protect our interest in this concern. Further, they have informed that they will not be deputing their representative for attending the above (copy of bidder's response placed opposite as Annex-2).
iii) M/s Patel Engg. Ltd. have submitted that they do not agree with re-
downloading of bid submitted on 16.07.13 as it is contrary to provisions laid down in the tender document and addenda/corrigenda no. 11 issued in this respect. However, they have authorized their representative for attending the above (copy of bidder's response placed opposite as Annex-3)." ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 13 CWP No. 5931 of 2014 In this 5th Committee report after discussing the responses of M/s ITI Limited including its reply dated 18.10.2013 and also response of other bidders TEC again recommended to seek opinion of Law Department on the issues .
raised by aforesaid three bidders and letter received from M/s ITI Ltd. viz-a- viz legal opinion given earlier.
17. In 6th Report of TEC dated 30.10.2013, it was stated that after considering the opinion of Law Department, ITI's letter and giving consideration to objections/reservations of other bidders, Committee was of the view that 'documents library' of petitioner may not be opened at that stage. In this report, it was also reported that prima facie examination of bid revealed that petitioner remained the lowest bidder after considering the final proposal, however, detailed evaluation could only be carried out after receipt of requisite document. Lastly, it was concluded that petitioner may be directed to submit hard copies of listed documents and discount as offered.
18. Thereafter, certain observations were made by the concerned Department of respondent-SJVNL, which were referred to the TEC. In response thereto, in 7th Report dated 18.11.2013, TEC had responded as under:-
"1. Mere uploading of documents in the document library does not ensure the attachment thereof to the bid.
2. With respect to availing discounts uploaded in documents library, committee was and is still of the view that discount which is not attached to the bid will not be considered for evaluation purpose."
For rest of the queries it was recommended that opinion of Law Department may be solicited.
19. Thereafter, in pursuance to 7th Committee Report, joint meeting of TEC was held with representative of Law Department and thereafter 8th Committee Report dated 18.12.2013 was submitted. Response of TEC to the relevant queries is as under:-
::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 14 CWP No. 5931 of 2014
"2.(b) Non-availability on record of verbal statement of bidder's representative...
Regarding evidence of M/s CCC-HIM JV's representative's verbal statement about discount, since the committee had declared M/s .
CCC-HIM JV as the lowest bidder (NP-22-26) and it is possible to further reduce the contract amount, committee thought it appropriate to take cognizance of verbal statement. As is evident the statement being verbal, no documentary evidence can be made available.
2.(c) What action is being proposed by the committee in case bidder declines his statement and under which provisions of Contract/Law.
Regarding issue of bidder declining his verbal statement, views of law dept. were solicited, who opined that the verbal statement made by representative of M/s CCC-HIM JV has since not contributed towards placing the same in L 1 position, therefore, the contractual clause contained at 6.3 does not seem applicable, but the bidder for that purpose may be prosecuted under Section 182 IPC for making false information with the intend to cause public servant to use his lawful power to the injury of other person.
3.(a) Does the mere uploading of documents in Document library ensure the attachments thereof to the bid.
No, mere uploading of documents in the document library does not ensure the attachment thereof to the bid. Further, the law dept. has opined that since documents in the document library remain in the private domain of the bidder and it can be attached by the concerned bidder to any number of bids and as such, they have reiterated the opinion rendered earlier at NP-19.
4. It may be clarified whether issue of discount and proposal to obtain hard copy was brought to the notice of law dept. when seeing their opinion.
No, the verbal statement of bidder was not put on record while seeking opinion of Law dept., because the lowest evaluated bidder was not known at that time. As brought out earlier at NP-33, committee was very sure that no cognizance will be given to financial documents in the document library while evaluating the bid. The same was corroborated by Law dept. who opined that Employer can waive only minor non-conformity or irregularity in a bid which does not constitute a material deviation and also does not prejudice or affect relative ranking of any other bidder. As such, committee has recommended that the bidder may be asked to submit afresh the technical documents, which are negotiable in nature, on confirming that relative ranking of any bidder will not be affected. As such opinion of law and committee are same on this issue. The details of documents which were not available or could not be downloaded and were indicated as ATTACHED/ENCLOSED in the ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 15 CWP No. 5931 of 2014 bid in respect of three bidders was brought out in committee's report dated 31.7.2013 (CP-01-03). In all the three cases, the documents in question were part of Form A-6 (technical proposal) and such documents viz. construction planning , methodology, equipment .
development etc. are subject to negotiation with the lowest evaluated bidder."
However, lastly TEC had recommended its earlier recommendations that petitioner may be asked to submit hard copies of documents and discount offered.
20. Thereafter matter was also referred to the TEC to conclude its report, whereupon on 18.2.2014, Committee had observed that in absence of requisite documents, Committee is not in a position to conclude the report and further that for review of the report submitted by the Committee, it was requested that specific issues may be brought to the notice of the Committee.
21. In response thereto on 18.2.2014, following issues were referred to the Committee, which reads as under:
A) Whether documents uploaded in the document library can be downloaded, which apart from the documents pointed out above, is expected to contain an element of discount also or can the bidder be asked to submit afresh the documents and further, how can the quantum of discount offered be ascertained, in order for JVNL to obtain full benefit of the same?
B) Whether in a Lumpsum item (item no. 1.2), the amount is to be worked out by multiplying the unit price by quantity and what action has been undertaken by the committee to bring all bidders at par?
C) Subject bids were opened on 16.07.13 (1500 hrs) and as per conditions of the Bidding documents, bids were valid up to 12th Jan' 2014. Since award of work was yet to be finalized and further, the PIB/CCEA clearance in respect of Dhaulasidh HEP is also pending, as such, the bidders were requested to extend the validity of their bid by two months i.e. upto 12.03.14.
However, in response, three bidders agreed to the request and extended their bid validity and two bidders have disagreed to such request. Whereas, no response was received from one of ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 16 CWP No. 5931 of 2014 the bidder. Here it may be added that PIB/CCEA clearance is still awaited and validity of bid is due to expire on 12.03.14."
22. After responding to aforesaid queries Committee on 24.2.2014 .
concluded that indenting Department may take appropriate view at their end, since the Committee had no comments to offer as per its scope also.
23. Ultimately vide notification dated 10.4.2014, bidding process was annulled by competent authority of respondent SJVNL, which was notified by HOD (Contracts).
24. Annulment of bidding process was assailed by petitioner by filing CWP No. 2688 of 2014, which was decided by Division Bench vide judgment dated 21.5.2014, which reads as under:-
"By the medium of the present writ petition, the petitioner has called in question the order dated 10th April, 2014, issued by the respondent, whereby the entire bidding process stood annulled by the respondent. The respondent, vide notice dated 7th April, 2011, invited bids for the execution of civil works of Dhaulasidh Hydro Electric Project and thereafter, vide tender notice dated 29th April, 2012, invited bids from the pre qualified eligible bidders, in which, only six bidders, including the petitioner, participated. It appears that the process has been delayed due to the fact that the respondent had to obtain clearances/approvals from different authorities. Out of the said six bidders, three bidders could not submit the required documents and ultimately, three bidders, including the petitioner, remained in the fray for allotment of the work in question.
2. From the perusal of the record placed on the file, it is apparent that the impugned order, dated 10th April, 2014, cancelling the entire bidding process, is mainly based on the noting, dated 20th March 2014, read with the noting dated 19th March, 2014 and subsequent notings. The learned Senior Advocate appearing for the petitioner argued that the respondent has not heard the petitioner before making the impugned order.
3. At this stage, learned counsel for the respondent was asked whether the respondent is ready to make order afresh after hearing the petitioner. The learned counsel for the respondent, after consulting his client in the open Court and seeking instructions, stated that the respondent is ready to make order afresh after hearing the petitioner. His statement is taken on record.
4. In the given circumstances, the impugned order, dated 1st April, 2014, is quashed and the respondent is directed to pass order afresh within a period of six weeks from today, after hearing the petitioner.::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 17 CWP No. 5931 of 2014
5. The writ petition stands disposed of accordingly, so also the pending CMPs, if any."
25. In sequel to the aforesaid judgment respondent SJVNL, vide .
letter dated 02.06.2014 requested petitioner to submit his grievance in writing within a period of 7 days after receipt of letter, so as to enable an effective personal hearing. However, vide letter dated 11.6.2014, petitioner had asked the respondent-SJVNL to supply the information sought by it under Right to Information Act, so as to enable petitioner to submit written the same.
r to submissions in compliance of letter dated 2.6.2014, by extending time to file
26. Vide letter dated 12.6.2014, respondent-SJVNL had expressed its inability to supply the information on the ground that revealing such information may prejudice the interest of other bidders and so far as information sought under Right to Information Act was concerned, it was responded that it was related to the concerned Public Relation Officer and petitioner was again requested to submit its viewpoints/grievances within the time frame fixed by the Court. Vide letter dated 13.6.2014 respondent- SJVNL had again requested the petitioner to put forward detailed submissions by 24.6.2014, as the last date, as per judgment dated 21.05.2014, for taking a decision by respondent-SJVNL was up to 5.7.2014. In response thereto petitioner had submitted written submissions dated 23.6.2014 (Annexure P-33).
27. Thereafter respondent-SJVNL, in response to communication dated 24.7.2014 received from petitioner on 25.7.2014, vide communication dated 30.7.2014 had given the details of opportunities provided to the petitioner to put forth its contentions in writing as well as orally through Advocate and also through other authorized representative of the petitioner.
28. It is case of the petitioner that he is the lowest price bidder and requisite information required to be uploaded with Form A-6, was not a ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 18 CWP No. 5931 of 2014 crucial document and also was not having any financial implications and it was uploaded by petitioner well before the stipulated time and is still available for viewing by the TEC of SJVNL and the TEC itself had proposed .
to receive hard copies of documents, but respondent-SJVNL, for the reasons best known to it, had postponed the said exercise indefinitely and further that being a lowest price bidder, petitioner is entitled for award of work, however, impugned notification dated 30.7.2014 has been issued with pre-determined mind so as to oust the petitioner and, therefore, it is not in consonance with fair play nor equity and the entire exercise had been undertaken with malafide intent of annulling the tender for one reason or the other, despite the fact that there was no embargo in completing the tender process by taking it to logical conclusion by awarding the same to lowest price bidder, i.e. petitioner.
29. It is also contended on behalf of petitioner that it was incumbent upon the respondent-SJVNL to reflect reasons in their record pertaining to decision making process of tender in question, in order to determine the rational application of mind and legality in entire tender process and the reasons so communicated must tally with the reasons which exist on the file, whereas in present case, reasons assigned for annulment of the tender process do not exist on the file. Further that petitioner had requested for hearing before CMD of the respondent-SJVNL, however, petitioner was relegated to the officers subordinate to CMD, who could not have dared to decide the representation of the petitioner contrary to the earlier decision taken by the CMD.
30. With regard to plea of respondents that for want of PIB clearance, process has been annulled, it is contended that till now, there was no PIB clearance in existence with respect to the project in question and whereas respondent-SJVNL had been proposing to again invite the tender for the work in question, which definitely indicated that annulment of ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 19 CWP No. 5931 of 2014 process for want of PIB clearance is not tenable and once the TEC had recommended the petitioner as a lowest price bidder, respondent-SJVNL was bound to award the work to the petitioner and as bid of the petitioner .
had been found lowest amongst 6 bidders, therefore, the plea taken by respondents that for healthy competition re-tendering is necessary, is not tenable.
31. Respondents have also taken plea that in view of advisory issued by Niti Aayog, a project work is not to be awarded on item rate basis. In response thereto, it is contended on behalf of petitioner that the advisory memo is not mandatory, but directory and not a law to be enforced, but an advisory to be considered on project basis and further that respondent- SJVNL has recently awarded Natwar-Mori Project on item rate basis in the year 2018, i.e. after issuance of advisory by Niti Aayog.
32. Before proceeding further, first and foremost issue, required to be determined is that as to whether submission of bid by the petitioner was complete in consonance with clause 22 of ITB or not.
33. In clause 22.1.VII, it has been categorically mentioned that documents, i.e. Forms A-3, A-4, A-6 and B-1 to B-5 of Forms of Bid and Contract Forms contained in Section-2, Part-II were to be submitted, filled-in or blank, as the case may be. On perusal of record, particularly the reports of TEC placed on record by petitioner itself as Annexure P-37, it is evident that documents required to be submitted along with bid under clause-22 were not attached with the tender. Though these documents were uploaded in the 'Document Library', but that 'document file' was never attached with the tender. It has also come on record in opinion of experts i.e. M/s ITI that a 'document library' is a personal file of petitioner, which can be accessed, opened, modified and tampered by the petitioner and it cannot be opened by any other person including the TEC and, thus, is not available with the tender for examination, as mere uploading of documents in the document ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 20 CWP No. 5931 of 2014 library, does not ensure the attachment thereof to the bid. Therefore, it has unambiguously come on record that submission of bid under clause-22 was not complete in all respect.
.
34. Though it has come on record that on the basis of opinion of Law Department of respondent-SJVNL, the TEC had recommended that petitioner may be asked to submit hard copies of documents, but when such proposal was communicated to other bidders, three of them had expressly refused to accept the said proposal, whereas other three had also shown their reservations by not coming forward to attend the meeting fixed for receiving the documents from the petitioner.
35. TEC had also concluded that petitioner was lowest price bidder and in its 6th Committee Report dated 31.10.2013 had proposed to receive documents from it, however, when certain observations referred, as re- produced supra, were put to TEC, then vide its submission dated 24.2.2014, the TEC had responded that indenting Department may take appropriate view at its end as TEC had no comments to offer as per its scope.
36. TEC has undertaken exercise of evaluation under clause 28 for examination of bids and documents of responsiveness and as per clause 28.1(c), the TEC had to ensure that the bid contains all the information, complete in all respects, as required in bidding documents in formats, as those specified. Undoubtedly, submission of bid under clause 22 has been found without information required to be furnished along with Form A-6, therefore, the bid was not complete and for material deviation or reservation or omission which effect any substantial way of scope or quality or performance of work specified in the contract, the bid cannot be said to be responsive bid.
37. Even if, contention of the petitioner is accepted that information contained in Forum A-6 was not affecting the bid in any substantial way, then also it may not affect the responsiveness of the bid, but still it is not in ::: Downloaded on - 30/09/2020 20:19:33 :::HCHP 21 CWP No. 5931 of 2014 consonance with clause 28.1 and no provision has been pointed out in ITB exempting the petitioner from attaching/uploading the documents contained in Form A-6 along with tender in compliance of clause 22.
.
38. The TEC was undertaking exercise simultaneously with respect to effect of not uploading or attaching the documents with the tender viz-a- viz lowest bid price. Even then the fact remains that the said exercise was being undertaken at the stage of clause 28. The recommendations of TEC with conclusion that petitioner is lowest price bidder, has become irrelevant by its own last comment dated 24.2.2014, whereby it was communicated by TEC that it had no comments to offer to the observations raised by the concerned Department and it was submitted that the said Department may take appropriate view at its end.
39. Lowest price bidder, entitled for award of contract, was to be declared/determined after complete evaluation and comparison of bids under clause 30 and under clause 30.1, employer had to evaluate and compare only those bids which would have been determined substantially responsive. But TEC had made recommendations by considering the case of the petitioner only on the basis of lowest price bid but with rider to receive those documents from petitioner, which were never attached/uploaded with the tender, however ignoring the objections of other bidders. It appears that during the lengthy exercise undertaken by the TEC involving communication seeking opinion of Law Department as well as expert M/s ITI, the TEC had lost sight of comparison of other parameters, except the lowest price for comparison of bids. Or it appears that TEC was inclined to clear the bid of petitioner by extending relaxation and somehow declaring its bid complete, may be swayed by its lowest financial bid, ignoring the fact that three bids were there which were complete in all respect. Despite omission on the part of petitioner in attaching/uploading documents, its bid was taken into ::: Downloaded on - 30/09/2020 20:19:34 :::HCHP 22 CWP No. 5931 of 2014 consideration but complete bids were not considered and an endavour was made to fill up lacuna in case of petitioner in order to award work to it.
40. In any case, the TEC had undertaken exercise under clause 28, .
which after following the further procedure was to be considered by the Competent Authority under clause 30 and thereafter also Competent Authority, under clause 31 had a right to accept or reject the bid and in case of acceptance of the bid under clause 31, bid had to be determined responsive and in that eventuality only for lowest evaluated bid price, it would have been declared as 'Selected bidder', entitling petitioner for award of the contract under clause 32 of ITB. But process had never reached to that stage, therefore, claim of the petitioner that it was evaluated as lowest price bidder entitling him for award of work is erroneous and misconceived.
41. TEC in its recommendations had also observed that other bidders had quoted the cost of the work unit wise, whereas petitioner had quoted it on lump-sum basis and in response to the observations made by the concerned Department, TEC had responded by saying that no bidder had raised any queries at pre-bid stage and,thus, it was clear that they had quoted the rate/amount for the item as per their understanding for doing complete job on lump-sum basis in conjunction with provisions of technical specification and, therefore, amount column had been considered, acceptance of which would ensure the fulfillment of complete obligation/scope under that item and thus all bidders had quoted their rates considering the provisions of the contract. It was in answer to the observation of the Department that how TEC had brought all the bidders at par for the purpose of comparison of amount in lump-sum item.
42. In impugned notification dated 30.7.2014, apart from other reasons which necessitated annulment of tender process, one reason is 'not detailed evaluation of bid due to lack of vital documents having not been annexed by the petitioner'. From the discussion hereinabove, it is evident ::: Downloaded on - 30/09/2020 20:19:34 :::HCHP 23 CWP No. 5931 of 2014 that in response to the observation made by the Civil Department of respondent-SJVNL, TEC had not re-iterated its recommendations, rather vide communication dated 24.2.2014 had diluted its earlier .
recommendations by stating that concerned Department may take appropriate action as committee was unable to offer comments. Therefore, plea of petitioner that it was assessed as lowest price bidder is also not substantiated from the record. The process of evaluation was in progress, but it was hampered for not attaching/or not uploading of requisite documents with tender by the petitioner in consonance with clause 22 of IBT.
43. Apart from reasons assigned as 'not detailed evaluation of bid due to lack of vital documents having not been annexed by the petitioner and consequently further resulting in a situation of repeated revalidation of bid validity contrary to CBC guidelines' and other reasons assigned for annulling bidding process 'uncertainty of receiving approval from the PIB Government of India to justify the investment of public money in the captioned project and alternatively considering the fallouts of withholding the award in absence of PIB approval like price escalation resulting in undue enrichment'. It is pertinent to mention that on 16.9.2020 there was no PIB approval with respect to the project in reference as now on 29.9.2020, it was informed that PIB clearance/approval has been granted on 16.9.2020 for the project in question. Today, Minutes of Meeting of PIB have also been placed on record by the respondent-SJVNL.
44. Present petition was filed in August, 2014 and vide order dated 20.8.2014 parties were directed to maintain status quo as on that date.
45. On 20.10.2014, during hearing, it was observed that case of the petitioner had been rejected, interalia, by respondent-SJVNL on the ground of uncertainty of receiving approval from PIB Government of India to justify the investment of public money in the project. Therefore, on oral request ::: Downloaded on - 30/09/2020 20:19:34 :::HCHP 24 CWP No. 5931 of 2014 made on behalf of petitioner the Court had arrayed Ministry of Power, Government of India through its Secretary as respondent No. 2. On that date during course of arguments, it was informed that PIB had not turned .
down the proposal, but had raised certain queries to the respondent-SJVNL and it was further informed on behalf of respondent-SJVNL that it had answered back those queries. In view of that development, PIB was directed to take final decision within a period of four weeks from that date and to place the decision on record on next date of hearing i.e. 18.11.2014. Thereafter case was listed on 27.11.2019, 28.11.2019 and 24.12.2019, but no information with respect to PIB clearance was placed on record except filing of an affidavit dated 17.5.2015 on behalf of respondent No. 2 stating therein as under:-
"As is evident from the averments made in the writ petition, the Project Cost of Dhaulasidh Hydro Electric Project was definitely more than Rs. Five hundred crores. In these circumstances, keeping in view the guidelines on the subject, the matter was to be referred to Public Investment Board i.e. PIB for its further processing. However, as submitted supra, PIB is neither a statutory body nor a legal entity but is constituted for a particular project and every project may have different construction of PIB keeping in view the nature of the Project. It is humbly submitted that the proposal of project in question has already been returned to respondent No. 1 to submit the proposal afresh with revised cost estimate and, as such the proposal for the project in question is not pending before the Public Investment Board as is being claimed by the petitioner."
46. On subsequent date of hearing also no information was placed on record with respect to PIB approval and ultimately hearing in the case was concluded on 24.12.2019. After winter vacation in January-February, Courts remained open for a short period and thereafter because of COVID- 19 pandemic, there was complete lock down and during that lock down an application CMP No. 3757 of 2020 was moved on behalf of respondent- SJVNL for modification of order dated 20.8.2014 seeking permission to initiate process of issuing Notice Inviting Tender (in short 'NIT') or in ::: Downloaded on - 30/09/2020 20:19:34 :::HCHP 25 CWP No. 5931 of 2014 alternative permission to issue such notice, subject to outcome of the pending writ petition.
47. It was claimed in CMP No. 3757 of 2020 that because of interim .
direction dated 20.8.2014 passed by Division Bench of this Court, respondent-SJVNL could not take up construction of project and entire activity was stand still despite intention of respondent-SJVNL to develop the project at earliest in view of growing power demand, employment and overall development of the region. It was further claimed that the Government of India had planned to restart economic activities in labour intensive sectors, in the wake of economic slowdown, which would give stimulus to the declining economy and therefore, PIB approval memo had been circulated and PIB clearance approval would be issued at any time, which would necessitate initiation of construction and civil works.
48. The said application was taken for hearing on 19.5.2020 along with main writ petition. On that day also, it was found that there was no PIB clearance/approval. It was observed by this Court that at the time of issuing NIT in the year 2012-13, there was no PIB clearance and till annulling the entire bidding process on 10.4.2014 and 30.7.2014 PIB clearance/approval could not be obtained by respondent-SJVNL and the previous process was annulled for want of PIB clearance/approval also. A document was placed on record, whereby Ministry of Power, Government of India, had requested Ministries/Departments of Government of India to submit their comments on the proposal/draft PIB memo positively by 25.5.2020, so that meeting of PIB could be held at the earliest for investment approval in respect of the project in reference, pending consideration in Ministry of Power.
49. The Court had directed PIB to take a final decision within a period of four weeks in the year 2014 vide order dated 20.10.2014. Till 16.9.2020, there was no PIB clearance. The stand taken by respondent- SJVNL during arguments and also in CMP No. 3757 of 2020 that because of ::: Downloaded on - 30/09/2020 20:19:34 :::HCHP 26 CWP No. 5931 of 2014 interim order passed by this Court, progress in project was hampering, is misconceived notion for the reason that even till 16.9.2020, the necessary PIB clearance/approval, which was the major reason assigned by the .
respondent-SJVNL for annulling the previous tender process, was not available, despite specific unambiguous direction/order passed by this Court in the year 2014 to obtain the same. Therefore, respondent-SJVNL is advised to initiate the NIT process in future only after getting the approval/clearance of PIB, so as to avoid wastage of energy in terms of money as well as time, as previously also the tender was floated without PIB clearance, wherein 10 persons had participated, numerous meetings were held by Technical Advisory Committee and matter was considered by the authority of respondent-SJVNL for years together and ultimately on 30.7.2014, bidding process was annulled for want of PIB clearance, which resulted into litigation by way of present petition, which has caused further wastage of energy, money as well as time, not only of the Court, but of the parties also.
50. After considering the entire material including reports and comments of TEC and also representation submitted by petitioner to respondent-SJVNL in compliance of judgment dated 21.5.2014 passed in earlier CWP No. 2688 of 2014, and also grounds raised in the petition and submissions made during course of arguments, I find that reasons stated in impugned notification dated 30.7.2014, for annulment are existing in the record and for the discussion made herein above, the impugned notification could not be termed as arbitrary, non-speaking, illegal or irrational.
In view of above discussion, petition is dismissed.
(Vivek Singh Thakur), th 30 September, 2020 Judge.
(Purohit/Keshav) ::: Downloaded on - 30/09/2020 20:19:34 :::HCHP