Madhya Pradesh High Court
G.D. Anklesaria And Co. Thr. Mr. Gustad ... vs Mp State Industrial Development ... on 6 August, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
-1- W.P.No.9165/2020
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE S.C.SHARMA &
HON'BLE SHRI JUSTICE VIVEK RUSIA
WRIT PETITION NO.9165/2020
G.D.ANKLESARIA & Co.
Vs.
M.P STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. & 3
OTHERS
Shri R.S.Chhabra, learned counsel with Shri S.K.Kochatta
and Shri Mudit Maheshwari, learned counsel for the petitioner.
Shri Rishi Tiwari, learned counsel for the respondent No.1 & 2.
Shri Manoj Munshi, learned counsel for the respondent No.3.
None for the respondent No.4, though served.
O R D E R
(Passed on 06.08.2020) Per Vivek Rusia, J:
The petitioner has filed the present petition being aggrieved by the work order No.8478 dated 25.06.2020 issued by respondents No.1&2 for operation and maintenance (O&M) of D.G sets at Crystal IT Park, Indore in favour of respondent No.3.
2. The petitioner is a registered partnership firm that has the status of medium enterprises. The petitioner is engaged in the business of manufacturer/dealer for supply, installation, testing and maintenance of diesel generator sets (DG sets) in several Govt./Semi Govt./Pvt. Sector concerns. The M.P State Industrial Development Corporation Ltd. is a State Govt. Undertaking falls within the definition of "State" under Article 12 of the Constitution of India hence amenable to the writ jurisdiction. The respondent No.3 & 4 are the -2- W.P.No.9165/2020 bidders who participated in the tender process along with the petitioner.
3. Petitioner had installed 5 Perkins DG sets of 1500 KVA each at the Crystal IT Park Indore in the year 2012 and also got the work of its operation and maintenance. The aforesaid contract came to an end on 30.09.2019 but extended up to 30.06.2020. On 01.07.2020 the petitioner has handed over the DG sets under protest.
4. Respondent No.1 & 2 issued an NIT in the month of February 2020 for operation and maintenance work of the DG sets at Crystal IT Park in which the petitioner and the respondent No.3 submitted their bids. The technical bids were opened on 24.02.2020 and the respondent No.1&2 have rejected the bid of respondent No.3 for want of fulfilling the tender qualifying requirement. The reasons assigned for rejection is "disqualified as the bidder has not submitted the AMC experience of the value required." After the rejection of the tender of respondent No.3, the petitioner became the single bidder. Instead of cancelling the entire tender process the respondent No.1 & 2 proceeded further and opened the financial bid of the petitioner. The petitioner's bid Rs.1,64,000/- per month was found just 2% above the existing ongoing rate but less than the estimated value of the contract of Rs.1,70,000/-. The tender approval committee in its meeting dated 18.03.2020 discussed the rate quoted by the petitioner and found it to be on the higher side and since the rate cannot be compared due to a single bidder quote, -3- W.P.No.9165/2020 hence decided for not awarding the work and recommended for recall of the tender.
5. Respondent No.1 & 2 vide NIT No.4769 dated 30.04.2020 issued a second call for the same work with the same terms and eligibility conditions. Again the petitioner and respondent No.3 participated in the tender process. The respondent No.3 annexed the certificates/documents about the experience. On 23.05.2020 the technical bids of the petitioner respondent No.3 were opened and both were declared qualified. Thereafter, the price bids were opened and the respondent No.3 was found L1 with the quoted rate Rs.55,89,972/-. The petitioner quoted the same rate as quoted in the first call of the NIT, hence due to the difference of Rs.3,14,028/- between the petitioner and the respondent No.3, the respondent No.1&2 have declared the respondent No.3 as L-1 and issued the work order No.8478 dated 25.06.2020. Being aggrieved by the aforesaid action of the respondent no.1&2, the petitioner has filed the present petition before this Court.
6. Inter alia the petitioner has assailed the impugned action of the respondent no.1&2 mainly on the ground that once the respondent No.3 had been declared unqualified at the time of opening of the technical bid then the respondent no.1&2 should not have opened the price bid of the petitioner being a single bidder and the respondent No.3 does not fulfill the eligibility criteria of both the NITs. The -4- W.P.No.9165/2020 respondent No.1 & 2 have wrongly considered the certificate submitted by the petitioner regarding completion of work of operation and maintenance (O&M) of the water pumping station at Pithampur area as experience certificate for the work of maintenance of DG sets. The petitioner has also assailed the malafide on part of respondents No.1&2 in the impugned action. Once the rate of the petitioner has been disclosed to the respondent No.3 it had deliberately quoted the lower rate than the petitioner in the second call. The so- called experience certificate was very much available in the first call also but the respondent No.3 deliberately did not submit the experience certificate but in the second call the same certificate was submitted and the respondents no.1&2 have wrongly accepted the same in the second call, therefore, the entire tender process vitiates and same is liable to be set aside.
7. Respondent no.1&2 No.1 & 2 have filed the return to justify their action by submitting that the respondent No.3 does possess the work experience of O&M of DG sets and in support of this contention, they have relied upon the internal communication dated 27.05.2020 made between two Executive Engineers of their own corporation. The respondent No.3 has also filed the return contending that to fulfill the eligibility criteria under clause-4 a certificate of completion of annual operation and maintenance of pumping stations, pump house and WTPs for value of Rs.138 lakhs has rightly been accepted by the tender committee of respondents no.1&2. The work was awarded for operation -5- W.P.No.9165/2020 and maintenance of the entire pumping station and pump including maintenance of 30 KVA DG set was successfully completed. In the maintenance work of the pumping station of maintenance work of the DG set was an integral part of the entire system. The respondent No.3 also submitted that it had also provided service of supply, installation, testing, and commissioning including two years operation of DG set at plot No.RC-23, Scheme No.134 of Indore Development Authority . The respondent no 3 fulfills the criteria of 5 years experience and has furnished the certificate from the Chartered Accountant dated 04.11.2019. Since the respondent No.3 has been found lowest, therefore, the work has rightly been awarded to respondent no.3. The respondent No.3 has placed reliance on the various judgments passed by the Apex Court in respect of interference by the Constitutional Courts into the Govt. contracts and appreciation of tender documents. All the judgments have been quoted in the return by the respondent No.3.
8. Thereafter, the petitioner has filed the rejoinder, respondent No.3 has filed the additional return and the petitioner has again filed the additional rejoinder. In the additional rejoinder, the petitioner has also quoted various judgments passed by the Apex Court in which it has been held that lower price bid should not be the only criteria for allotment the work and the interference by the Court is permissible when the Govt. action is arbitrary or -6- W.P.No.9165/2020 discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is malafide.
We have heard learned counsel for the parties and perused the record.
9. In our considered opinion the following issues require consideration in this writ petition.
(i) Whether the respondent No.3 fulfills the eligibility criteria for the bidders prescribed in both the NITs?
(ii) Whether the action of the respondent No.1 & 2 was justified in opening the price bid of the petitioner being a single bidder and thereafter the recalling the entire tender process on the ground that being a single, bidder rates cannot be compared?
Findings on Issue No.1
10. Clause 4 of both the NITs i.e. 'Eligibility criteria for the bidders" is the same. Admittedly, in first call, the bid of respondent No.3 was rejected due to non-fulfillment of the eligibility criteria and in the second call, respondent No.3 has been declared eligible to participate in the price bid fulfilling the same eligibility criteria. Clause-4 of both the NIT is reproduced below:
"Eligibility fo Bidders:
(a) The bidder should have minimum 5 years of experience in the business of diesel generator sets as a manufacturer/dealer for supply, installation, testing and -7- W.P.No.9165/2020 commissioning/Agency of operation and maintenance works of DG sets in a Govt./Semi Govt./PSU/Pvt. High rise building.
(b) The bidder must have successfully completed:
(i) One work of Rs.31.00 lacs for Operation & Maintenance of DG system in Govt./Semi Govt./Public Undertaking/Pvt. High rise building during last 5 years.
Or
(ii) Two works of Rs.25.00 lacs for Operation & Maintenance of DG system in Govt./Semi Govt./ Public Undertakings/Pvt. High rise building during last 5 years.
11. In order to fulfill the above eligibility criteria, the respondent 3 is relying on a work of annual operation and maintenance of pumping station, pump house and water treatment plant (WTP) at different locations in the Industrial Area, Pithampur from 15.08.2015 to 31.03.2019. completed by the respondent No.3 According to the respondent No.1 to 3 while operating and maintaining the pump station, the DG generator sets were also used during power failure and the respondent No.3 did maintain the DG sets also, therefore, has 5 years experience of maintenance of DG set. The list of work of Operation and Maintenance of Pumping Stations, Pump Houses WTP at Locations in A Pithampur Sector & SEZ-2Zin District Dhar for a period of 24 months, furnished by the respondent No. 3 along with tender is reproduced below:-
Price Bid Name of work:Operation and Maintenance of Pumping Stations, Pump Houses and WTPs at Different Locations in I/A Pithampur Sector-1,2,3&SEZ 2 in District Dhar for a period of 24 months Name of bidder: M/S INTERNATIONAL MARKETING S.no. Name of Work and Place Qty. Unit Rate/m onth 1 Operation & Maintenance of Intake well & pumping station of Karam dam at village Khedi seeod of -8- W.P.No.9165/2020 Tehsil Mhow, Dist dhar for water 24 month 39024 Not legible supply industrial area, Pithampur section-3 for 24 hrs. for a period of 24 months (As per Annexure D) 2 Operation & Maintenance of 9.00 MLD capacity water treatment plant at Chandrapura for Water 24 month 32780 786720 supply of FA-3 Pithampur for 24 hrs. in 3 shifts for a period of 24 months (as per Annexure-D) 3 Operation & Maintenance of pumping station at Over Head Tank No.1 at sector-3, Pithampur for clear water supply to industrial area 24 month 34146 819501 Pithampur sector-3 for 24 hrs. in 3 shifts for a period of 24 months as per Annexure-D 4 Operation& Maintenance of Sabjay Jalashay Pumping station water supply scheme Pithampur Sector-1 24 month 35000 84000 & 1 for 24 hrs. in 3 shifts for a period of 24 months (as per Annexure D) 5 Operation & Maintenance of Sanjay Jalashay pumping station water supply scheme SEZ-2 Pithampur 24 month ----- ----- for 24 hrs. and shifts for a period of 24 months as per Annexure D. 6 Operation & Maintenance of 9.00 MLD capacity water treatment 24 month 32000 768000 plant at Tarapura for water supply 7 Operation & Maintenance of 9.00 MLD capacity water treatment plant of SEZ-2 for water supply of 24 month 32000 -----
FA SEZ-2 Pithampur for 24 hrs. in 3 shifts for a period of 24 months as per Annexure D. Total 5753800 Along with tender, the respondent No.3 also submitted a self-certificate mentioning that the power generation transformers at three locations viz. Karam Dam, Chandrapura WTP and Sanjay Jalashay were operated and maintained by us for the period from 15.08.2015 to 31.03.2019 which reads as under:-9- W.P.No.9165/2020
"The above Power Generation Transformers are being Operated and Maintained by us for the period from 15.08.2015 till 31.03.2019 successfully".
12. The aforesaid certificate nowhere certifies that the respondent No.3 has maintained the diesel generator sets for the aforesaid period. The respondent No.3 was awarded the work of operation and maintenance of pumping station vide agreement No.23/2015-16 for 24 months. Along with the tender documents the respondent No.3 has also annexed the list of the work undertaken for the period of 24 months and all those works are related to the operation and maintenance of the pumping station.
13. After examining the aforesaid certificate and the list furnished by the respondent No.3 the same tender committee in its meeting dated 22.02.2020 had disqualified the respondent No.3 for want of experience certificate of the similar work and did not consider for next stage of financial opening. In the second call, the respondent No.3 annexed the same documents to fulfill the condition No.4(a) of the NIT. The respondent No.1 & 2 are placing reliance over the internal communication written between two Executive Engineers certifying that while maintaining the WTPs at Chandrapura and Tarpura and other water supply installation, the departmental DG set was used by the O&M operator and during shut down as per need has maintained the same successfully. The copy of the relevant part of the internal communication is reproduced below:
-10- W.P.No.9165/2020M.P INDUSTRIAL DEVELOPMENT CORPORATION LTD.
REGIONAL OFFICE, INDORE
101, ATULYA I.T PARK, INDORE
No.7616/MPIDC Reg.Office, Indore/2020 Dated 27.05.2020
INTER DEPARTMENTAL COMMUNICATION
From: To,
S.K Pal, Shri B.S.Bisht,
Executive Engineer. Executive Engineer
Sub: Regarding use of DG Set during operation and maintenance of 9 MLD capacity water treatment plants.
Ref: Your IOC dated 27.05.2020.
With reference to above cited subject matter, it is to inform you that the agency M/s International Marketing organisation, Indore had completed the work of operation and maintenance of WTP, Pithampur site at I/A Sector-1,2,3 & SEZ with 9 MLD WTPs at Tarpura & Chandrapura under the Ag. No.23/15-16. The final amount of work was Rs.138.00 Lacs which was completed on 31/03/2019.
Further, it is confirmed that in the operation and maintenance of WTPs at Tarpura & Chandrapura and other water supply installations, the departmental DG Set was used by the O & M operator during the shut down as per need and has maintained the same successfully.
Executive Engineer
14. We are surprised by the conduct of respondent no.1&2 as they went all out of the way to create a document in order to facilitate a disqualified bidder. The experience certificate which the respondent No.3 did not possess has been created by respondent no.1&2 in order to make the respondent No.3 eligible. When the respondent No.3 itself has declared that it has operated and maintained the water treatment plants at various locations, the respondent no.1&2 are bold enough in saying that while doing so the respondent No.3 used during shut down and maintained the departmental DG set, whereas no such work was ever allotted to respondent No.3. Merely using a DG set while executing some different work the -11- W.P.No.9165/2020 respondent no 3 can not be declared as an experience holder for maintaining the DG set for which the respondent no.1&2 used to issue or work order by way of the tender process.
As per clause-4 of the NIT, the bidders are required to fulfill the condition 4(a) & (b) both. Clause 4(b) is in two parts viz. (i) work of 31 lacs for operation and maintenance of DG system in Govt./Semi Govt./Public undertaking/Pvt. High rise building during the last 5 years & (ii) two works of Rs.25 lacs for operation and maintenance of DG system in Govt./Semi Govt./Public undertakings/Pvt. High rise building during the last 5 years. As held above using and maintaining the departmental DG set while performing the maintenance work of the pump set cannot be termed that the respondent No.3 had successfully completed the work of operation and maintenance of DG system. Even otherwise, the aforesaid work was done by the petitioner from the period 15.08.2015 to 31.03.2019 which is less than 5 years and as per clause 4(b)(i)&(ii) the experience of operation and maintenance of DG system in high rise building of Govt./Semi govt./Public undertaking for the last 5 years.
The respondent No.3 might have maintained the DG set in water treatment plant but not in high rise building as per the requirement of cl.4 (b) (i)&(ii). In view of the above discussion, we have no hesitation in declaring that the respondent No.3 does not fulfill the eligibility criteria. In the first call, respondent No.3 had rightly been disqualified but in the second call the respondent No.1 & 2 have wrongly declared respondent No.3 as qualified and awarded the work order, hence the impugned work order is liable to be set -12- W.P.No.9165/2020 aside.
Findings on Issue No.2
15. So far the conduct of the respondent No.1 & 2 in opening the price bid of the single bidder is concerned the same is also highly objectionable. In the meeting dated 18.03.2020, the respondent No.3 was declared disqualified and the petitioner alone remained in the run. If it was the case of a single bidder and therefore the issue of comparison of rates was out of question, the respondent No.1 & 2 ought to have abandoned the tender process at that stage. The respondent No.1 & 2 have proceeded further and opened the price bid which became known to the respondent No.3 also. In the second call, respondent No.3 has quoted Rs.3.14 lacs lower than the price quoted by the petitioner and became L- 1, therefore, we condemn the action of the respondent No.1 & 2 which resulted in the undue advantage of respondent No.3. The respondent No.1 & 2 have not only disclosed the price quoted by the petitioner but in the second call wrongly treated the respondent No.3 as eligible and awarded the work, therefore, we direct the respondents No.1&2 to be more cautious and careful in dealing with the allotment of work by way of NIT in future.
16. That the petitioner is successfully doing the same work for the last six years and in the NIT it has quoted the rate by raising 2% and that too less than the estimated cost fixed by the respondent No.1 & 2. Since the respondent No.3 has -13- W.P.No.9165/2020 been declared ineligible, therefore, any price quoted by the respondent No.3 is of no consequence. The petitioner has been declared technically qualified and the price bid was opened in the first call which is less than the estimated cost and only 2% high from the last 5 years rate, therefore, the work is liable to be allotted to the petitioner.
17. In view of the foregoing discussion, the petition is allowed with a cost of Rs.1,00,000/-(In words: One Lakhs only) payable by the respondent No.1, 2 & 3 jointly and severally.
(S.C.SHARMA) (VIVEK RUSIA)
JUDGE JUDGE
hk/
Digitally signed by Hari Kumar
Nair
Date: 2020.08.11 17:10:23 +05'30'