Orissa High Court
Chandra Sekhar Swain vs State Of Odisha And Others ......... ... on 20 July, 2018
Equivalent citations: AIRONLINE 2018 ORI 227
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 294 of 2017
In the matter of an application under Articles 226 and 227
of the Constitution of India.
AFR
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Chandra Sekhar Swain ........ Petitioner
-Versus-
State of Odisha and others ......... Opp. Parties For petitioner : M/s. Umesh Chandra Mohanty, T. Sahoo and B.K. Swain, Advocates.
For opp. parties : Mr. B.P. Pradhan,
Addl. Government Advocate.
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PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HONOURABLE DR. JUSTICE B.R. SARANGI
------------------------------------------------------------------------------- Date of hearing: 11.07.2018 :: Date of Judgment : 20.07.2018
-------------------------------------------------------------------------- DR. B.R.SARANGI, J. The petitioner, who is a Super Class Contractor having Registration No. 477 of 2016 issued by the Chairman of the Committee of Chief Engineer and 2 Engineer-in-Chief (Civil), Bhubaneswar, has filed this writ application seeking following reliefs:-
"i) Issue appropriate Writ/Writs thereby quashing the cancellation of Bid vide no. C-IIM-IFB-
07/2015 No. 53035 dated 30.11.2016 under Annexure-3 and fresh Tender Call notice Bid Identification No. CE-DPI & R-43/2016-17 dtd. 1.12.2016 under Annexure-4;
ii) And this Hon'ble Court be further pleased to hold that the actions of the Opp.Parties in using Annexure-3 and 4 in cancelling the Tender and issuing fresh tender are absolutely illegal, arbitrary, unreasonable and accordingly be further pleased to direct the Opp. Parties to open the Price bid of the petitioner so as to adjudge his suitability to find out the lowest successful bidder in accordance with the provisions of DTCN dated 29.07.2016 under Annexure-1 Series for award of contract."
2. The factual matrix of the case, in hand, is that the Chief Engineer (DPI & Roads), Odisha, Bhubaneswar- opposite party no.3 issued Invitation for Bids (IFB) vide Bid Identification No. CE-DPI & R-19/2016-17 dated 29.07.2016 for different works including the work at serial no. 4, viz., "Improvement of Junagadi-Junusnagar-Khola road from 7/500 Km to 17/040 Km under State Plan". The value of the work was Rs.9,74,17,550.00 and the period of completion was within 11 calendar months. As per the 3 aforesaid tender call notice, the bids were to be received only online on or before 5.00 PM of 29.08.2016, with the stipulation for opening of the Technical Bid on 02.09.2016 at 11.30 hours in the office of the E.I.C. (Civil), Nirman Soudh, Unit-V, Bhubaneswar, Odisha in presence of the bidders.
3. As per Clause-5(i) of the Detailed Tender Call Notice (DTCN), the bid was to be submitted in two covers, Cover-1 was to contain scanned EMD, Cost and VAT of bid document, scanned copy of registration certificate for execution of civil works, PAN card, Valid VAT clearance certificate required under Section 99 of the Odisha VAT Act, undertaking/certificates duly filled, affidavit, work experience certificate and documents required as per the relevant clauses of this DTCN. Similarly, as per Clause-5(ii), Cover-II was to contain the price bid and scanned copy of Additional Performance Security duly filled in and signed by the bidder. Clause-7 provides for production of documents. Similarly, Clause-8 provides that the work will be completed in all respect within the time period, as specified in the 4 contract data, and the contractor should satisfy Clause-10 of the DTCN.
4. The petitioner, having satisfied all the eligibility criteria as required under the DTCN, submitted his tender and also furnished the affidavit of authentication and agreement for hiring machineries with one Subal Behera, aged about 40 years, resident of Jamadeipur, Patna, P.O.- Mandhatpur, Dist- Nayagarh with a validity for a period of 12 months commencing from 25.08.2016 and also submitted affidavits as required under DTCN showing no relationship certificate and no litigation certificate etc. The tender was submitted by the petitioner on online basis within the time stipulated.
5. On receipt of the bids, including the bid of the petitioner, within the time specified, the tendering authority opened the technical bids and assessed the same on 02.09.2016. So far as package no.7 is concerned, three bidders, including the petitioner, participated in the proceeding of the tender evaluation committee meeting held on 01.10.2016. As per clause 8.7.3, at the time of opening 5 of financial bid the names of the bidders, whose technical bids were found responsive, would be announced and the bids of only those bidders would be opened and the remaining bids would be rejected. But opposite party no.3 floated an order of cancellation of bid in the website, vide Annexure-3, without assigning any reason and without affording opportunity of hearing to the petitioner, and issued fresh Invitation For Bids on 01.12.2016 in Annexure- 4, hence this application.
6. Mr. U.C. Mohanty, learned counsel for the petitioner states that the order of cancellation of bid in Annexure-3 dated 30.11.2016 has been passed without affording opportunity of hearing and without assigning any reasons. Therefore, such order of cancellation itself vitiates, being violative of Article 14 and 19(1)(g) of the Constitution of India. To substantiate his contention he has relied upon the judgments of this Court in Kailash Chandra Lenka v. MD, IDCO, 2016 (II) ILR- CUT-937 and M/s. Sical Logistics Ltd. v. Mahanadi Coalfields Ltd. & Ors., 2017 (II) ILR - CUT-1035.
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7. Mr. B.P. Pradhan, learned Addl. Government Advocate contended that due to "Bharat Bandh" on 02.09.2016 which was the scheduled date as per the IFB, the technical bid was opened on 03.09.2016. For the work at serial no. 4, namely, "Improvement of Junagadi- Junusnagar-Khola road from 7/500 km to 17/040 km. under State Plan", 3 numbers of bids were received, including the bid of the petitioner. A series of technical criteria was evaluated, which was as per the conditions stipulated in the DTCN. The tender evaluation committee, relying on the affidavits and documents submitted by the bidders/ contractors, in its meeting held on 01.10.2016, unanimously qualified two bidders in technical bid and decided to open the financial bids of the qualified bidders on 07.10.2016. The committee disqualified the bidder-Bibhu Ranjan Parida, Special Class Contractor. But in the meantime, complaints were received in the office from one Prakash Kumar Das and Susanta Kumar Kar against the petitioner regarding suppression of 8 nos. of ongoing works. Complaint was also received from one Sanjay Kumar 7 Samantray against the petitioner regarding hiring of machineries for 11 months and 12 months, although the completion period of work was 14 months. After evaluation/verification of allegations, as all the bidders were disqualified, it was decided not to open the financial bids. Therefore, the order of cancellation was communicated and steps were taken for issuance of fresh IFB. Accordingly, fresh IFB was issued in Annexure-4 on 01.12.2016. Therefore, no illegality or irregularity has been committed by the authority concerned in cancelling the bid submitted by the petitioner, so as to warrant interference of this Court. To substantiate his contention, he has relied upon the judgment of this Court in Chandra Sekhar Swain v. State of Odisha 2017 (I) OLR 666.
8. We have heard Shri U.C. Mohanty, learned counsel for the petitioner as well as Shri B.P. Pradhan, learned Addl. Government Advocate for the State-opposite parties and perused the record. Pleadings between the parties have been exchanged. With consent of learned 8 counsel for the parties, this writ petition is being disposed of at the stage of admission.
9. The facts delineated above are not in dispute. As per the IFB issued on 29.07.2016, procedure to participate in online bidding has been elaborately mentioned. Clause-3 deals with format and signing of bids, whereas clauses 3.3 to 3.17 deal with compliance of different conditions for submission of bids. Clause-4 deals with security of bid submission, whereas clause-8 deals with opening of bid. The procedure for evaluation of bids has been provided in Clause 8.5.2(A) to 8.7.9. Thereafter, clause-9 deals with clarification and negotiation of bids. The DTCN for road and project works attached to the IFB also provides different conditions and clauses 5, 6, 8 and 10, being relevant for the purpose of the case are reproduced hereunder:-
"5. The bid is to be submitted in two covers.
(i) Cover-I is to contain scanned EMD, Cost and VAT of bid document, scanned copy of registration certificate, PAN card, valid VAT clearance certificate, undertaking/ certificates duly filled, affidavit, work experience certificate and documents required as per the relevant clauses of this DTCN.9
(ii) Cover-II is to contain the price bid and Scanned copy of Additional Performance Security duly filled in and signed by the bidder.
6. The on line bid must be accompanied with scanned copies of financial instruments towards bid security of the amount as specified in the Contract Data along with the Bid in the form of Fixed deposit receipt of Scheduled Bank/ Kissan Vikash Patra/ Post Office Saving Bank Account/ National Saving Certificate/ Postal Office Time Deposit Account duly pledged in favour of the Executive Engineer and payable at the place as specified in the Contract Data as per the terms and conditions laid down in OGFR and in no other form. Bidders desirous to hire machineries or equipments from out side the State or owned but deployed outside the State are required to furnish the bid security as specified in the Contract Data in form of above shape and as per the above terms and conditions. Bid not accompanied with EMD as specified above shall be liable for rejection.
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8. The work is to be completed in all respects within the time period as specified in the Contract Data. Bidders whose bid is accepted must submit a work programme at the time of execution of Agreement.
xx xx xx
10. (i) The Contractors are required to furnish evidence of ownership of principal machineries/equipments in Schedule-C as per Annexure-I for which contractor shall have to secure minimum 80% of marks failing which the tender shall be liable for rejection.
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(ii) In case the contractor executing several works he is required to furnish a time schedule for movement of equipment/machinery from one site to work site of the tendered work in Annexure-IV of Schedule-C.
(iii) The contractor shall furnish ownership documents for those machineries which he is planning to deploy for the tendered work if these are not engaged and produce certificate from the Executive Engineer as per Annexure-III of Schedule- C under whom these are deployed at the time of tendering as to the period by which these machines are likely to be released from the present contract. Certificate from the Executive Engineer of Government of Odisha or Engineer-in-Charge of the project (in case of non-Government projects) under whose jurisdiction the work is going on, shall not be more than 90 days old on the last date of receipt of tender.
(iv) In case the contractor proposes to engage machineries and equipments as asked for in the tender documents, owned or hired but deployed out side the State, he/she is required to furnish additional 1 % EMD/Bid Security. The entire bid security including the additional bid security shall stand forfeited in case the contactor fails to mobilize the machineries within a period as to be able to execute an item of work as per original programme which will be part of the agreement.
(v) The contractor intending to hire/lease equipments/machineries are required to furnish proof of ownership from the company/person providing equipments/ machineries on hire/ lease along with contracts/ agreements/lease deed and duration of such contract. The contracts/agreements/lease deed should 11 be on long term basis for a minimum period as mentioned in contract data from the last date of receipt of Bid documents."
(emphasis supplied)
10. The petitioner satisfied the eligibility criteria and submitted his bid. Consequentially, the tender evaluation committee, in its meeting held on 01.10.2016, after scrutiny of the bid documents furnished by the bidders, found that the petitioner fulfilled the minimum eligibility criteria as per the DTCN and found responsive, accordingly qualified him. Out of three bidders, the petitioner and another bidder Sanjaya Kumar Samantary, having fulfilled the minimum eligibility criteria of the DTCN, were found responsive and declared qualified. So far as the bidder Bibhu Ranjan Parida is concerned, since he had not furnished documents with regard to ongoing works in Schedule-G format, he was disqualified for the said work on the ground of submission of false statement or declaration as per Clause-117 outlined in the DTCN. Therefore, out of three bidders, only two bidders, namely, the petitioner and Sri Sanjaya Kumar Samantary having qualified, the tender evaluation committee unanimously decided to open the financial bids 12 of those qualified bidders. When the date was fixed to 07.10.2016 for opening of the financial bids, complaints were received from one Praksh Kumar Das and Susanta Kumar Kar against the petitioner regarding suppression of 8 numbers of ongoing works and also complaint was received from one Sanjaya Kumar Samantary against the petitioner regarding hiring of machineries for 11 months and 12 months, although the completion period of work was 14 months and after evaluation/verification of allegations, as all the bidders were disqualified, it was decided not to open the financial on the date fixed. As series of complaints were received against the petitioner as well as Sanjaya Kumar Samantary, the tender evaluation committee held the meeting on 28.11.2016 at 5.00 PM and after detailed scrutiny of the bid documents furnished by the bidders, it was found that all the three bidders including the petitioner were disqualified. Therefore, the petitioner was communicated on 30.11.2016 with regard to cancellation of the bid.
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11. Though petitioner and Sanjaya Kumar Samantary were qualified in the technical bids by the technical evaluation committee in its meeting held on 03.10.2016 and their financial bids were scheduled to be opened on 07.10.2016, but in the meantime before their financial bids were opened, complaints were received against the petitioner as well as Sanjaya Kumar Samantary on the plea of non-compliance of the conditions stipulated in the DTCN. Therefore, the technical evaluation committee, taking into consideration the complaints lodged against the petitioner as well as Sanjaya Kumar Samantary, convened a meeting on 28.11.2016, examined the same by making a scrutiny of all the documents and complaints received against the petitioner and Sanjaya Kumar Smantary and found that all the three bidders were disqualified. Therefore, the communication was made on 30.11.2016 in cancelling the work in question. Against the said cancellation order and consequential issuance of fresh tender dated 01.12.2016 in Annexure-4, the petitioner has approached this Court by filing the present application alleging that no opportunity of 14 hearing has been given and as such the cancellation order does not indicate any reasons.
12. Mr. U.C. Mohanty, learned counsel for the petitioner contended that if the cancellation order has been passed without assigning reasons and without compliance of the principle of natural justice, the same has to be quashed and as a consequence thereof fresh tender call notice issued on 01.12.2016 is also liable to be set aside. Much reliance has been placed on M/s Sical Logistics Ltd. and Kailash Chandra Lenka (supra), wherein this Court, relying upon various judgments of the apex Court, held that validity of the order must be judged by reasons and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Therefore, the bid in the re-tender should not be accepted simply because it is lowest as the price bid of the petitioner was disclosed and known to all after the reverse bidding was over.
13. There is no dispute that in the impugned order of cancellation it is only indicated that the bids for the work in question invited vide Bid Identification No.CE-DPI&R- 15 19/2016-17 dated 29.07.2016 are cancelled and there is no dispute that the in the order of cancellation of bid, which has been communicated vide Annexure-3 dated 30.11.2016, no reasons have been assigned. In that view of the matter, it is to be seen whether such cancellation order has been issued after opening of the financial bid or not. There is no dispute that the order cancelling the bids has been issued before opening of the financial bid. Therefore, the rates quoted by the parties are not known to anybody. Needless to say, the reasons for cancellation have been specifically dealt with in the file itself. As is seen from the present case, after the petitioner and one Sanjaya Kumar Samantary qualified in the technical bid, pursuant to the evaluation held on 01.10.2016, complaints having been received before opening of the financial bid on 07.10.2016, the technical committee examined the same in its meeting on 28.11.2016 and consequentially found that three bidders are disqualified, pursuant to which the cancellation order has been issued on 30.11.2016. Therefore, no illegality or 16 irregularity can be said to have been committed by the authority concerned.
14. So far as the allegations made that before cancellation of the bid no opportunity of hearing was given, this Court on perusal of the materials available on record found that before cancellation, admittedly no opportunity of hearing was given to the petitioner. But when counter affidavit was filed before this Court, which was received by the petitioner on 12.04.2017, opportunity was given to the petitioner to file his rejoinder, which was filed on 20.04.2017. Though specific reasons have been assigned with regard to disqualifying the petitioner, but no specific reply has been given in the rejoinder affidavit, despite opportunity given by this Court to meet the compliance of the principle of natural justice. In paragraphs 6 and 7 of the rejoinder affidavit, the petitioner has stated as follows:-
"6. That, it is further respectfully submitted that the actions and approaches of the Opp.Parties in absence of any sanction and approval from the Administrative Department and taking a contrary decision on 28.11.2016, according to their own, is purely an attempt to delay the execution of public work, which is equally contrary to the provisions of DTCN and 17 codal provisions, as such subsequent attempt made by the authorities to cancel and inviting fresh tender, the same are also against the public interest and public good and the tenderer cannot be allowed to suffer because of the fault and inactions of the Opposite Parties as held by this Hon'ble Court in the judgment reported 2017(I) ILR CUT 272 (Sampad Samal Vrs. State of Odisha & others).
7. That, it is respectfully submitted that a conjoint reading of the proceeding held in the Technical Evaluation Committee meeting on 1.10.2016 being unanimous decision and the EIC being a party to the same, they cannot take a contrary decision, contrary to the provisions of DTCN by mere saying on 28.11.2016 as a unanimous decision to cancel the Tender for no apparent reason. Further the requirement of lease deed for hiring plant and machineries as per the contract data is not mandatory in nature, rather a bare perusal of the Clause-10 r/w Clause-122 and Annexure-I of Schedule-C of the DTCN clearly revealed that the aforesaid lease deed is not an essential condition for qualifying a bidder, rather the provisions clearly revealed that the requirement of lease deed has to be sustained before the award of the work. Therefore in the present case non-submission of lease deed agreement for fourteen(14) months as per contract data is not fatal and even when the petitioner has filed the extended lease deed for 16 months before assessment of the technical bid and in fact the authorities have considered the same when duly qualified the petitioner on 01.10.2016 under Annexure-2 in consonance with the provisions of DTCN at Clause-8.5.3, Clause-122 and Annexure-1 of the Schedule-C of the DTCN, the Opp.Parties are stopped to say that the petitioner has no qualification on the date of assessment of Technical Bid. Further the approach of the Opp.Parties in holding that the petitioner is 18 disqualified as per the Proceeding dtd. 28.11.2016 is equally absolutely bad in law, arbitrary, unreasonable and tainted with malafide with ulterior motive to keep someone in their mind to participate in the fresh selection process so as to get the contract in his favour, as such the proceeding dtd. 28.11.2016 is liable to be quashed by this Hon'ble Court."
15. Since the petitioner has not been selected by opening the price bid, question of awarding the work in his favour does not arise and as such, there is no denial to the specific contention raised by the opposite parties in their counter affidavit with regard to disqualification of the petitioner for having not satisfied the conditions of the technical bid on consideration of the complaints received against the petitioner.
16. In Chandra Sekhar Swain mentioned supra, this Court held that since the technical evaluation committee subsequently rectified the mistake where no right has been accrued in favour of the petitioner because the technical evaluation committee earlier found the petitioner qualified bidder when it was on erroneous basis the decision to hold fresh tender cannot be faulted with. The said 19 judgment was challenged before the Supreme Court in Special Leave to Appeals (C) No.9235 to 9237 of 2017 and the apex Court dismissed the Special Leave Petitions, thereby the law laid down by this Court has got approval of the apex Court by dismissal of the SLP. Applying the said principle to the present context, even if the technical evaluation committee qualified the petitioner pursuant to meeting held on 01.10.2016 and placed the matter for opening of the financial bid on 07.10.2016, but before 07.10.2016 complaints having been received, though the date for opening of the financial bid was fixed to 07.10.2017, the technical evaluation committee reconsidered the technical bids in its meeting dated 28.11.2016 and found that the petitioner as well as the other qualified bidder Sanjaya Kumar Samantary, both are disqualified. Thereby, all the three bidders having been disqualified in the technical bid, the authorities did not allow opening of the financial bids and, by cancelling the tender on 30.11.2016, issued fresh IFB on 01.12.2016, which cannot be faulted.
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17. In view of the facts and law discussed above, we are of considered view that the technical evaluation committee in its meeting held on 28.11.2016, having found the petitioner and two other bidders disqualified, the authorities have cancelled the tender on 30.11.2016 and issued fresh tender on 01.12.2016, which cannot be said to be illegal or unreasonable so as to warrant interference of this Court.
18. The writ application is thus dismissed being devoid of merit. No order to costs.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 20th July, 2018, GDS/Ajaya