Orissa High Court
Gurudev Singh vs State Of Orissa & Others ... Opp. Parties on 6 July, 2012
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 2867 of 2012
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Gurudev Singh, Son of late Jodh Singh, AT: Bahadur Bagicha Pada, PO: Bhawanipatna, Dist: Kalahandi ... Petitioner
-Versus-
State of Orissa & others ... Opp. Parties
For Petitioner : M/s. Pitambar Acharya, Sr. Adv.
S.Rath, B.Bhadra, B.K.Jena &
S.Rout.
For Opp. Parties : Mr. P.K.Muduli,
Addl. Standing Counsel
[For O.Ps. 1 to 4]
M/s. Prasanta Ku. Nayak &
Alok K. Mohapatra
[For O.P. No.5]
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 06.07.2012 B.N.MAHAPATRA,J. This writ petition has been filed with a prayer to direct the opposite parties to accept the technical and financial bids of 2 the petitioner and select him to execute the work for Construction of Bridge over Bhangamunda Nallah at 6th Km on Tundla to Karlamunda Road in Kalahandi District. Further prayer of the petitioner is to declare the action of opposite parties in selecting Opposite Party No.5- Sri Sachin Agrawal to execute the work in question as illegal, arbitrary and contrary to the detailed tender call notice.
2. Petitioner's case in a nutshell is that he is a Special Class Contractor and has undertaken many construction works in different government and public sector undertakings and has completed the same without any allegation whatsoever by the authorities who had issued the work order in his favour. Opposite party No.3- Superintending Engineer, Jeypore (R & B) Circle, Jeypore invited sealed bids from the eligible contractors registered with the Government and contractors of equivalent grade/class registered with Central Government/ MES/Railways having registration for execution of Civil Works in prescribed form for the work in question for the year 2011-12 at an approximate estimated cost of Rs.2,89,42,704/-. The date of sale and receipt of bid was from 11 hours of 12.09.2011 to 16 hours of 21.09.2011. Pursuant to said tender call notice, bids were received within the stipulated period. During scrutiny, it was found that four bidders were disqualified for non-submission of required 3 documents as would be evident from the agenda note prepared by the Assistant to Chief Engineer (Roads) and five bids were treated as valid. From the agenda, it is further evident that the petitioner stood second highest bidder having offered Rs.2,60,19,491/- whereas the first lowest bidder has offered Rs.2,48,32,840/-. Petitioner's case is that even though opposite party No.5 failed to produce a note of experience regarding construction of bridge works, the opposite parties have illegally selected him and are going to issue work order in his favour. Hence, the present writ petition.
3. Mr.Acharya, learned Senior Advocate appearing for the petitioner placing reliance on paragraph 13 (i) of tender call notice submitted that each bidder has to submit along with bid a note regarding his experience on construction of Bridge Works. Sub-para (ii) of paragraph 13 further provides that the prospective applicant should furnish list of similar nature of work satisfactorily completed in Schedule-D1 and list of works in progress under Schedule-D2 in its name. Along with tender documents, the petitioner submitted the required documents showing his performance in the field of construction of bridge on different sites as would be evident from the performance reports issued in form-G by the Executive Engineer, Rural Works Division, Bhawanipatna. From the performance report granted 4 by the Executive Engineer, Rural Works Division, Bhawanipatna in favour of the first lowest bidder, i.e., opposite party No.5-Sri Sachin Agrawal, it is evident that said Agrawal has not executed any construction of bridge work on any occasion. He does not satisfy the terms and conditions of the tender call notice which provides that the bidder has to submit along with bid a note regarding his experience on construction of bridge works.
4. It was further submitted that the tender document contains two parts, i.e., technical bid and financial bid. If a bidder conforms to the terms and conditions of the tender call notice with regard to the technical bid showing completion of similar nature of work and becomes successful in the technical bid then he goes for financial bid. In the present case, Sachin Agrawal failed to produce the note of experience regarding construction of bridge. Though the petitioner has produced necessary documents showing his performance for construction of bridge work in question and other similar nature of works and has offered an affordable and workable price, the opposite parties for the reasons best known to them have illegally selected opposite party No.5 to execute the work. This shows how the opposite parties are showing undue favour to opposite party No.5, who did not conform to the terms and conditions of the tender call notice. 5 Highlighting all the aforesaid facts, the petitioner has made representation to the Engineer-in-Charge-cum-Secretary to Government, Works Department with a copy to the Chief Engineer, DPI, Roads and the Superintending Engineer, R & B Circle, Jeypore to consider the technical evaluation and accept the successful bidders, but no action has been taken by the said authorities. Concluding his argument, Mr.Acharya prayed to allow the aforementioned prayer.
5. Mr. P.K.Muduli, Additional Standing Counsel reiterating the stand taken in the counter affidavit submitted that in response to clause 13 (i) and 13(ii) of the Detailed Tender Cal Notice, opposite party No.5 furnished relevant document showing his experience on execution of similar nature of works as certified by Executive Engineer, R.W. Division, Bhawanipatna. As regards bridge work, the scope of work and nature/specification of work involved is reinforced cement concrete works with cement and steel. Bridge work technically is also a C.D. work (Cross Drainage work) with bigger span length/vent. On perusal of experience certificate submitted by opposite party No.5, it is found that he possesses experience on C.D. works (R.C.C. culverts) with open foundation. Cross drainage works with similar span length/vent are called culverts but the nature of work in C.D. works/ culverts involves similar specification of work. Thus, 6 opposite party No.5 possesses experience of executing similar specification of work as to be done in the proposed bridge. The procedure and the methodology of construction, specification and nature of work are broadly same in C.D. Works (R.C.C. Culverts) and bridge works. Moreover, opposite party No.5 possesses requisite plants and machineries and specifically staging, shuttering and centering arrangement for casting of reinforced cement concrete items of bridge as required under the eligibility criteria outlined in Clause-122 of the Detailed Tender Call Notice. The proposed bridge having open foundation does not involve any complicated technology/methodology of construction like well foundation and pile foundation which are adopted in construction of major bridges with perennial flow of water. The proposed bridge is over a 'nallah' which is inflated due to back water of river Tel during rainy season only. The major spell of the period it remains dry and there will be no difficulty in execution of open foundation.
6. It was further submitted by Mr. Muduli that experience in bridge works or execution of similar nature of work is not a prerequisite eligibility criterion required for qualifying in the technical bid evaluation which is evident from a bare reading of clause-122 of Detailed Tender Call Notice which has been deliberately suppressed by the petitioner. 7 The petitioner has not approached this Court with clean hands and has suppressed/concealed the mandatory requirements provided under clauses 116 to 123 of the Detailed Tender Call Notice. Experience in bridge works has not been stressed as a mandatory requirement in Clauses 13(i) and (ii) of Detailed Tender Call Notice while formulating the terms and conditions and eligibility criteria in order to attract the best price on open competition which is in public interest. By restricting the qualifying criteria as contended by the petitioner there will be no competition at all and only the big players will rule the field resulting loss to the public exchequer. With the above submission, Mr. Muduli prayed for dismissal of the writ petition.
7. Mr.P.K.Nayak, learned counsel appearing for opposite party No.5 supporting the stand taken by the State specifically submitted that Clauses 13(i) and (ii) are not mandatory; those are directory. Comparison of Clauses 7, 9, 10 and 11 of the Detailed Tender Cal Notice shows that requirements of those clauses are mandatory but the requirement under Clause 13(i) and (ii) are directory.
8. On the rival contentions raised by the parties, the following questions fall for consideration by this Court. 8
(i) Whether experience in bridge works or execution of similar nature of works is not a prerequisite eligibility criterion for qualifying in the technical bid evaluation in view of Clause 122 of the Detailed Tender Call Notice;
(ii) Whether experience in construction of bridge works as mentioned in Clause 13(i) and (ii) is not mandatory but directory in nature;
9. Since both the questions are interlinked, they are dealt with together. To deal with those questions, it is necessary to extract Clause 13(i) and (ii) and clause 122 of the Detailed Tender Call Notice.
"13 (i) Each bidder is to submit along with bid a note regarding his experience on construction of Bridge Works.
a) Name of the Road:-
b) Estimated Cost :-
c) Total Length
d) Major Item of works:
e) Quantity of items i) As per Agreement:-
ii) As per execution:-
f) Date of Commencement:-
g) Stipulated date of Completion:-
h) Actual date of completion:-
i) Other details if any :-
(ii) The prospective applicant in its name
should furnish list of similar nature of work satisfactorily completed in Schedule-D1 and list of works in progress in Schedule-D2.9
122. ELIGIBILITY CRITERIA:- To be eligible for qualification, applicants shall furnish the followings.
a. Required E.M.D. as per the clause No.06.
b. Demand Draft towards cost of Tender paper as per
Clause No.4.
c. Scanned Copy of valid Registration Certificate, Valid
VAT clearance certificate, PAN card along with the tender documents as per Clause No.07 and furnish the above original documents for verification within 3(Three) working days of opening of cover-I of the tender before Superintending Engineer, Jeypore (R & B) Circle.
d. Information regarding (i) Evidence of ownership of principal machineries /equipments in Schedule-C as per Annexure-I of Schedule-C (ii) Annexure-III of Schedule-C & (iii) Annexure-IV of Schedule-C if required as per Clause No.10.
e. Information regarding current litigation, debarring/ expelling of the applicant or abandonment of work by the applicant in Schedule "E" and affidavit to that effect including authentication of tender documents and Bank guarantee in schedule "F" as per clause 11.
f. Submission of original bid security and tender paper cost as prescribed in the relvant clause of DTCN after last date of submission of bid but before 17.00 Hrs of 24.09.2011."
10. Perusal of Annexure-3 series shows that the petitioner has submitted the required documents showing his performance in the field of construction of bridge work at different sites. Perusal of Annexure-4 does not reveal that opposite party No.5 has executed any construction 10 of bridge work on any occasion. On the contrary, the performance report certified by the Executive Engineer, Rural Works Division, Bhawanipatna reveals that opposite party No.5 has executed road and CD works. This being the admitted position, it can be safely concluded that while the petitioner satisfies the requirement of having experience in execution of bridge works in terms of Clauses 13(i) and (ii) of the Detailed Tender Call Notice, opposite party No.5 does not possess such experience.
11. Now, the next question arises as to whether Clauses 13(i) and (ii) are mandatory or directory in nature. All the clauses of Detailed Tender Call Notice under Annexure-1 are independent clauses. Any participant who submits his bid must satisfy the conditions of tender call notice. Otherwise, there would be no need of stipulating separate and distinct conditions in the tender call notice requiring bidders to satisfy such conditions. Therefore, the stand taken by the opposite parties that the requirements, as specified in Clauses 13(i) and (ii), are not mandatory but directory in nature is not sustainable in law.
12. Law is well settled that the action of State and its instrumentality should be fair, legitimate and above board and without any affection or aversion. (See Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157; E.P. Royappa Vs. State 11 of Tamil Nadu, AIR 1974 SC 555 and State of Andhra Pradesh & Anr., -vs- Nalla Raja Reddy, AIR 1967 SC 1458).
13. In the fact situation, we are of the view that selection process in the instant case has not been done adhering to the terms and conditions of the Detailed Tender Call Notice. Therefore, selection of opposite party No.5 is not valid one. Since the petitioner has satisfied all the required conditions of the tender call notice, we direct the opposite parties to accept petitioner's bid and issue work order in his favour.
14. In the result, the writ petition is allowed.
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B.N.Mahapatra, J.
V. Gopala Gowda, C.J. I agree.
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Chief Justice
Orissa High Court, Cuttack
Dated 6th July, 2012/ss