Ms Greyhound Engineers India Pvt Ltd ... vs Water Resources Department on 19 July, 2016

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Jharkhand High Court

Ms Greyhound Engineers India Pvt Ltd ... vs Water Resources Department on 19 July, 2016

2. It is the third tendering process for execution of renovation and mechanical work including painting and maintenance of electricity operated equipments of Bhim Barrage at Mohammadganj in the District of Palamau, Jharkhand in which petitioner's technical bid has been held to be non-responsive by the impugned decision of the Tender Committee contained in Letter No. 36 dated 07.01.2016 (Annexure-6 to the writ petition and Annexure-C to the counter affidavit).

3. Petitioner has assailed the same and also sought consideration of his financial bid alleging that the Respondent authorities have deliberately declared the petitioner's technical bid to be non-responsive in order to cut competitiveness and award the work in favour of the Respondent No. 5 who has quoted much high rate.

4. As sequence of facts unfold from the pleadings on record, Respondent invited Expression of Interest (EOI) through NIT No. 1/2014-15 dated 24.02.2015 which could not materialize as two participants namely, Sahabad Engineers Pvt. Ltd and Lav Kush Infrastructure Pvt. Ltd were declared non-responsive because of inadequate experience, as per decision of the Departmental Tender Committee dated 04.06.2015. Again Expression of Interest was invited through Re-tender No. 01/2014-15 dated 27.06.2015 which was participated by four bidders namely, Luv 2. Kush Infrastructure Pvt. Ltd, M/s Hardware Tools & Machinery Projects Pvt. Ltd (Respondent No. 5 herein), Greyhound Engineers India Pvt. Ltd. (Petitioner herein) and M/s Shahabad Engineers Pvt. Ltd. Lav Kush Infrastructure Pvt. Ltd and M/s Shahabad Engineers Pvt. Ltd were found non-responsive because of lack of requisite experience of such work. Petitioner's technical bid was also not found supported by legal and proper papers. Documents relating to experience of sub-letting work besides agreement of work, TDS deduction and Income Tax Clearance certificates were not enclosed by the petitioner. On 09.10.2015, the Departmental Tender Committee declared him as non-responsive. The remainder fourth bidder became the single bidder and though his bid was found responsive in technical evaluation by the Tender Committee held on 09.12.2015, but the tender process was called off on that account. Minutes of the Tender Committee dated 04.06.2015 and 09.10.2015 are Annexures-A & B to the counter affidavit. Again, the work was re-tendered vide Re-tender No. 01/2014-15 dated 03.11.2015 in which four bidders namely, M/s Arun Construction Co., Greyhound Engineers India Pvt. Ltd. (Petitioner herein), M/s Hardware Tools & Machinery Projects Pvt. Ltd (Respondent No. 5 herein) and M/s Shahabad Engineers Pvt. Ltd have participated. None of these bidders participated in the pre-bid Conference Meeting held on 10.11.2015 in the Office of Chief Engineer, Water Resources Department, Medininagar. M/s Shahabad Engineers Pvt. Ltd and petitioner's bid was found non-responsive. Petitioner was found not to have submitted work experience paper and whatever paper submitted, was not supported with legitimate papers. On examination of the respective tenders in the light of the terms and conditions of EOI, petitioner's bid containing five certificates for fulfillment of conditions of execution of similar nature of work during last three years would reveal that four out of five certificates were related to work experience prior to 2012 whereas one certificate was related to the work experience in the name of M/s Patel Engineering, Mumbai which had sub-letted the work to the petitioner with a mandate to complete the work up to 31.12.2011, though petitioner was found 3. to have completed the work in February 2014 only. It cannot be credited to his name. Other papers were allegedly found to be fabricated. Pursuant thereto, the Departmental Tender Committee found the petitioner's bid to be non-responsive and the remaining two bidders were found responsive for opening of financial bid by the impugned decision dated 07.01.2016..

5. Petitioner's representation against the decision of the Tender Committee were placed before the Chief Engineer, Water Resources Department, Medininagar with a direction to inquire into the matter and submit a report to the Department of Water Resources. On submission of a comprehensive inquiry report dated 07.04.2016 bearing Memo No. 443 by the Chief Engineer and on examination thereof, documents enclosed to the bid of the petitioner were found to be fabricated and lacking in transparency. Department therefore chose to proceed with the opening of financial bid, as a result of which, bid of the Respondent No. 5 was found to be lowest amongst two bidders. It also transpires that M/s Patel Engineering whose sublet work petitioner claimed to have executed, has been also blacklisted. Participation of M/s Patel Engineering Ltd in NIT of Water Resources Department for construction of canal tunnel of Kharkai Right Main Canal on Turnkey basis was declared ineligible on account of his debarment within a period of five years prior to the date of NIT. Challenge to the said decision of the Tender Committee in WPC No. 1004/2016 was also declined by the judgment dated 02.03.2016 (Annexure-G to the counter affidavit of the Respondent State).

6. In the background of facts, noticed herein-above and undisputed by the rival parties, it is the contention of the petitioner that earlier, Respondent No. 5 and 6 were found to have submitted the same work programme and methodology in the second tender which was considered to be suspicious leading to the tender itself being aborted. Respondent No. 6 has also participated in the present tender wherein Respondent No. 5 and 6 were declared to be responsive and the petitioner was held as non-responsive in order to allot the work to the Respondent No. 5. It is submitted 4. that the rate of the petitioner in the financial bid was Rs. 12.35 crores, whereas the Respondent No. 5 had quoted Rs. 27.90 crores and the Respondent No. 6 had quoted Rs. 29.50 crores for the same work. Decision of the Tender Committee to declare him non-responsive would, therefore, be only with an intent to favour the Respondent No. 5. On this ground, petitioner has challenged the decision of the Tender Committee.

7. Petitioner has however not been able to rebut the assertion of the Respondent State that the experience certificate required to fulfill the criteria of NIT of similar nature of work in the past three years were not duly satisfied by it for considering its technical bid as responsive. It has also not been able to dispel the allegation that even one out of five work experience certificates obtained from M/s Patel Engineering Ltd did not conform to the requirement as the work was required to be completed in 2011 while the petitioner had completed the same work in 2014. There are other allegations that fabricated document were produced by the petitioner, over which no comments are required to be made as it may be subject matter of further inquiry.

8. In the aforesaid background, decision of the Tender Committee in the third tender process on objective and independent consideration of fulfillment of the laid down conditions contained in the NIT and standard bid document, as evident from Annexure-6 to the writ petition and Annexure-C to the counter affidavit of the Respondent State), cannot be said to be suffering from errors vitiating decision making process itself. On this occasion, on objective consideration of the technical bids of four participating bidders, no such allegation of suspicious bid submitted by the Respondent No. 5 and 6 has been found by the Technical Evaluation Committee. It is nowhere alleged in the Minutes of the Tender Committee dated 07.01.2016 that the Respondent No. 5 or 6 had submitted documents which created suspicious about their connivance. In that way, after fourth tender process, if the Respondent has found two bids to be responsive and proceeded to open their financial bids, action of 5. the Respondent authorities cannot be said to be suffering from lack of transparency, fairness and discrimination.

9. Considering the principles laid down by the Apex Court on which decision making process relating to tender process can be tested under judicial review, this Court does not find any grounds made out on behalf of the petitioner to interfere in the impugned decision of the Tender Committee dated 07.01.2016 whereunder, petitioner's technical bid was held to be non-responsive. (See. Tata Cellular Versus Union of India (1994) 6 SCC 651 and Maa Binda Express Carrier and Another Versus North-East Frontier Railway and Others (2014) 3 SCC 760) For the reasons recorded herein-above and discussions made, this Court does not find any grounds to interfere in the instant matter. Writ petition is accordingly dismissed. I.A. no. 3745/2016 stands closed.

(Aparesh Kumar Singh, J) Ranjeet/

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Jharkhand High Court