Jharkhand High Court
Sm & Snr(Jv) vs Bharat Coking Coal Ltd. & Others on 7 September, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 4387 of 2021
SM & SNR(JV), a Joint Venture Firm of M/ Sunrise Movers and
M/s Singh Natural Resource Private Ltd. --- Petitioner
Versus
Bharat Coking Coal Ltd. & others --- Respondents
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan
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For the Petitioner : Mr. Navniti Prasad Singh, Sr. Advocate M/s. Aditya Shekhar, Baibhaw Gahlaut, Advs.
For the Respondent Nos. 1-3 : Mr. A.K. Das, Advocate For the Respondent no. 4 : Mr. Ajit Kumar, Sr. Advocate M/s. Aparajita Bhardwaj, Tanya Singh, Advocates
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11/07.09.2022 e-Notice Inviting Tender dated 29th May, 2021 was floated by the Respondent-BCCL for 'Long Term Coal Transportation' including crushing of coal from different sources at Bastacolla Area, BCCL to BNR Siding of BCCL including allied jobs for an estimated value of Rs. 150,78,88,016/-. The stipulated period of work was 1278 days. Petitioner was disqualified during technical evaluation by the duly constituted committee for the reason that 'Joint Venture SM and SNR(JV)' was not in existence before the JV Agreement dated 18th June, 2021, which makes all other documents such as Annexures-O, Annexure-B, Annexure-N, Annexure-P, etc. invalid and non-existent in the eyes of law. Petitioner complained to the Independent External Monitor (IEMs), who vide his communication dated 17th October, 2021 (Annexure- 3/A), opined that the tender should not be finalized till completion of the enquiry and submission of the reports of IEMs.
2. Be it be noted here that Annexure-H is the INTEGRITY PACT i.e., PRE-CONTRACT INTEGRITY PACT, part of the tender document to be signed both by the employer and the bidders. The first recital thereof reads as under:
" To avoid all forms of corruption by following a system that is fair, transparent and free from any influence/prejudiced dealings prior to, during and subsequent to the currency of the contract to be entered into with a view to."
Section 2 relates to Commitments of the Bidder(s)/Contractor(s) and provides for the enumerated undertakings, to which the bidders have to commit themselves during participation in the tender process and during execution of the contract. Section 6 thereof provides for equal treatment to all 2. Bidders/Contractors/Subcontractors. It stipulates that the principal employer will enter into the agreement with all Bidders and Contractors with identical conditions. Section 8 thereof provides the duties and responsibilities of the Independent External Monitor.
3. The Forum of Independent External Monitor was invoked by the petitioner through his representation dated 13th October, 2021 upon being technically disqualified (Annexure-3). During technical evaluation of bids of all 17 bidders, 8 bidders were disqualified. The financial bids were opened thereafter. Respondent no. 4 was found to be lowest bidder having quoted price of Rs. 122,89,28,733/-. Letter of Acceptance was issued upon respondent no. 4 on 20th October, 2021 (Annexure-4 to the writ petition/Annexure-1 to the counter affidavit of respondent no.4). Work order was issued upon respondent no. 4 on 24th October, 2021. The writ petition was filed on 25th October, 2021. By order dated 29th October, 2021, the award of work in favour of the respondent no. 4 was made subject to the outcome of the writ petition by learned Single Judge.
4. Be it noted here that on account of Standing Instruction dated 1st August, 2022 issued by Hon'ble the Chief Justice, all tender matters are to be heard by the Division Bench. That's why the matter has been placed before this Bench after assignment of roster.
5. Meanwhile Independent External Monitors were undertaking the exercise on representation of the petitioner. BCCL also participated therein and its submissions are noted by the Independent External Monitors as enclosed in their counter affidavit. The Independent External Monitor took note of the stand of the BCCL that once the bidder had signed the Integrity Pact, it should not have approached the Court. Having represented the matter before the IEMs, they should have waited for their decision in the matter. BCCL also submitted its comments on the merits of the complaint relating to disqualification of the technical bid of the petitioner. The Independent External Monitor conveyed their opinion on 28th November, 2021 to the Chairman and Managing Director, BCCL, Dhanbad on 20th November, 2021 in the following terms:
"Conclusion In view of the pending case before Hon'ble High Court of Jharkhand and taking cognizance of the award of the tender by BCCL, the IEMS decided to refrain from offering any opinion at this stage."3.
6. Learned senior counsel for the petitioner submits that the rejection of the technical bid by the Respondent-BCCL on the ground that Joint Venture was not in existence before the JV Agreement dated 18th June, 2021 and all other documents such as Annexure-O, Annexure-B, Annexure-N, Annexure-P etc. were invalid and non-existent in the eyes of law, is a ploy / subterfuge to disqualify the petitioner / bidder as such correction in the date of the Joint Venture agreement executed on 15th June, 2021, notarized on 18th June, 2021 was made at the request of the employer, BCCL, as per Annexure 1/A at page- 147, which is as under:
"You are requested to submit the following - i. Rectified Copy (date mismatch) of JV agreement by the concerned Notary Public who has notorized the JV Agreement earlier. Ii. Affidavit or any other document to prove proprietorship/Individual status of the firm which should be valid on the day of Bid Submission by the bidder."
7. The bidder was disqualified on technical grounds as the authorization in favour of one of the Directors of the Joint Venture was treated to be invalid having been executed on 17th June, 2021 i.e. before the notarization of Joint Venture agreement on 18th June, 2021 i.e. cut-off date for submission of the bid.
8. Learned senior counsel for the petitioner submits that if the petitioner was allowed to participate in the financial bid, its bid would have been the lowest i.e. 24.52% below the estimated value of Rs.150.78 Crores. Its bid was Rs. 9.00 crore (approximately) lower than the bid quoted by the respondent no.
4. Therefore, petitioner approached this Court.
9. Respondent-BCCL has filed counter affidavit. Respondent no. 4 has also appeared and filed its counter affidavit today. Both the respondents have defended the award of work in favour of respondent no.4. Respondent no. 4 has indicated that it is executing the work since November, 2021. Coal Transportation schedule (work schedule) from November, 2021 till May 2023 has been enclosed as Annexure-3 showing varying amounts of quantity of coal to be transported in each month. Respondent no. 4 had also submitted performance guarantee to the tune of Rs. 1,05,29,000/- and odd before award of work.
10. Upon consideration of the relevant materials borne from the record taken note above, we find that the Independent External Monitors have laid off their hands on the enquiry only for the reason that the matter is sub-judice before this 4. Court. Independent External Monitors have been appointed as per the tender documents. Every bidder including the petitioner and the respondent no. 4 must have signed the Integrity Pact. The object of the entering into Integrity Pact was to ensure that the tender process is undertaken in a fair and transparent manner and is not influenced by any dealings prior to, during and subsequent to the currency of the contract to be entered into. The bidders were also required to give an undertaking as per Section 2 thereof and all bidders were to be treated equally as per Section 6 of the Integrity Pact. The Independent External Monitors, in fact, on 17th October, 2021 before award of Letter of Acceptance in favour of the respondent no.4, opined that the tender should not be finalized in favour of any tenderer. We do not find any reason as to why the Independent External Monitor should have kept the inquiry in abeyance only on account of the fact that the petitioner has approached this Court. Independent External Monitors are experts in their field nominated by Central Vigilance Commission to act as a watchdog in award of tender in such contracts as per Section 8 of the Integrity Pact.
11. Therefore, we are of the considered view that the Independent External Monitor should arrive at a considered opinion after due enquiry in respect of the issues raised before it by the petitioner. The report of the Independent External Monitor though being recommendatory in nature, has substantive value. BCCL would submit that report before this Court. Let such a report be submitted within a period of 2 weeks.
12. Since the work has progressed from November, 2021 till date, in order to secure the interest of the employer as well as to have the commitment of the petitioner to undertake the work if it ultimately succeeds, we deem it proper to direct the petitioner to make a deposit of amount of Rs. 2.5 Crore with learned Registrar General within two weeks through a demand draft. Learned Registrar General would keep the amount in an interest bearing account.
13. Matter be listed on 27th September, 2022.
Let a copy of this order be handed to the learned counsel for the Respondent-BCCL by tomorrow.
(Aparesh Kumar Singh, J) (Deepak Roshan, J) jk/