Orissa High Court
Pankaj Kumar Patel vs State Of Orissa And Ors. on 24 April, 2006
Equivalent citations: AIR2006ORI140, AIR 2006 ORISSA 140, 2006 (6) ALL LJ NOC 1310, 2006 (6) ABR (NOC) 971 (ORI), 2006 (5) AKAR (NOC) 752 (ORI)
Author: L. Mohapatra
Bench: L. Mohapatra, Indrajit Mahanty
JUDGMENT L. Mohapatra, J.
1. The petitioner in this writ application prays for quashing the decision taken by the opposite party No. 2 disqualifying him in the technical bid and for a further direction to the opposite party No. 2 to allow the petitioner to rectify the defects, if any, in the technical bid and for consideration of the financial bid along with the opposite party No. 5.
2. The case of the petitioner is that he carries on contract work under different departments of the State Government and other authorities and is registered as a Special Class Contractor. On 6-9-2005 the Chief Engineer, Rural Works-Ill, Orissa issued a notice inviting tenders for different works under PMGSY and the said notice was published in the daily "The Samaj" on 10-9-2005. Pursuant to the said notice, the petitioner submitted his tender for package No. OR-30-ADB-02/1 under the Rural Works Department, Sundargarh as notified under Annexure-3 of the advertisement. The estimated cost being more than one crore and within five crores, the Special Class/Super Class Contractors were entitled to submit their tenders and as per advertisement, the technical bids were to be opened on 18-10-2005 and the financial bid was to be opened on 25-10-2005. Though the petitioner had submitted all the required documents, he was informed that he had not qualified in the technical bid and accordingly his financial bid was not opened. Though the petitioner enquired as to why he has been considered disqualified in the technical bid, no information was given. Finding no other way, he has filed this writ application for the aforesaid relief.
3. A counter affidavit has been filed on behalf of the opposite parties 1 to 4. In the said counter affidavit, it is stated that Clause 4.4-A of the instructions given in the tender conditions prescribes that to qualify for award of the contract each bidder should have in the last five years achieved in any one year a minimum financial turnover, in all cases of civil engineering construction works only volume of construction works of at least the amount equal to the estimated cost of the work (excluding maintenance cost for five years) for which bid has been invited. It was also provided that the turnover will be indexed at the rate of 8 per cent for a year. In respect of the package in question, the total cost was valued at Rs. 3,46,67 lakhs excluding maintenance and as per documents furnished by the petitioner along with the tender papers the maximum indexed annual turnover for the last five years beginning from 2000-2001 to 2004-2005 was found at Rs. 266.224 lakhs. The said figure was arrived at after indexing 8% per year. Since the petitioner did not satisfy the aforesaid requirement of turnover, he was found to be disqualified in technical bid and accordingly his financial bid was not opened. It is also stated in the counter affidavit that in respect of another package vide OR-28-25/V, he was found eligible since the estimated cost of the said project was Rs. 1,56,80.730/- and the petitioner's maximum indexed annual turnover was worked out at Rs. 297.41 lakhs which is higher than the estimated cost of the said package.
4. This being the only ground taken for rejection of the technical bid, we called upon the petitioner to satisfy the Court as to how he fulfils the said condition to qualify for the financial bid. In response to the query made, the learned Counsel for the petitioner referred to Clause 4.4A and submitted that the petitioner is either to satisfy Clause 4.4A(a) or 4.4A(b) and he is not required to satisfy both.
The aforesaid Clause is quoted below for convenience:
4.4-A to qualify for award of the Contract, each bidder should have in the last five years,
(a) Achieved in any one year a minimum financial turnover (in all cases of civil engineering construction works only) volume of construction work of at least the amount equal to the estimated cost of works (excluding maintenance cost for five years) for which bid has been invited. The turnover will be indexed at the rate of 8 per cent for a year.
(b) Satisfactorily completed, as prime Contractor, similar works in a year equal in value to one third of the estimated cost of work (excluding maintenance cost for five years) for which the bid is invited or such higher amount as may be specified in the Appendix to ITB.
5. A bare reading of the said Clause makes it clear that to qualify for award of contract each bidder should have in the last five years achieved in any one year a minimum financial turnover in all cases of civil engineering construction works only and volume of construction work of at least the amount equal to the estimated cost of works for which bid has been invited and the turnover will be indexed at the rate of 8% for a year. The other condition to be satisfied is that the bidder must have satisfactorily completed, as prime contractor, similar works in a year equal in value to one third of the estimated cost of work excluding maintenance cost for five years for which the bid is invited or such higher amount as may be specified in the Appendix to ITB. The said clause nowhere indicates that a bidder has to satisfy either of the two conditions. On the other hand, it appears that a bidder has to satisfy both the conditions in absence of the word "or" in the said clause. Since admittedly the petitioner has not satisfied the requirement of Clause 4.4-A(a), the tender submitted by him in the technical bid as been rightly rejected.
6. We therefore do not find any merit in the writ application and the same is accordingly dismissed.
Indrajit Mahanty, J.
7. I agree.