Gauhati High Court
Nabin Chandra Hatimuria vs The State Of Assam And 12 Ors on 2 November, 2015
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam: Nagaland: Mizoram & Arunachal
Pradesh)
Writ Petition (Civil) 1528 of 2015
Sri Nabin Ch. Hatimuria,
son of Late R.K.Hatimuria, resident of
Hatigaon, Sewali Path, House No.76,
Dispur, Guwahati-38
...P etitioner
-versus-
1. The State of Assam, represented by
the Commissioner & Spl. Secretary to the
Government of Assam, Public Works
(Building & NH) Department,
Dispur, Guwahati-6.
2. The Chief Engineer, Public Works
Department, (Building)
Assam, Chandmari, Guwahati-3.
3. The Superintending Engineer,
Public Works Department, (Building)
Assam, Chandmari, Guwahati-3.
4. The Executive Engineer, Public Works
Department (Building), Building Design Branch,
Office of the Chief Engineer, Public Works
Department, (Building) Assam, Chandmari,
Guwahati-3.
5. The General Purposes Committee of the Assam
Legislative Assembly represented by its Chairman,
Sri Pranab Kumar Gogoi, Dispur, Guwahati-6.
6. The Principal Secretary,
Assam Legislative Assembly,Dispur,
Guwahati-6.
7. The Additional Secretary,
2
Assam Legislative Assembly,Dispur,
Guwahati-6.
8. The Deputy Secretary,
Assam Legislative Assembly, Dispur,
Guwahati-6.
9. M/s J.J. Associates, having its office at
GMC Road, Nanak Nagar, Bhangagarh,
Guwahati-5, represented by its proprietor
Sri Gagandeep Singh.
....R espondents
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
For the Petitioner : Mr. K.N.Choudhury ....Sr. Advocate
Mr. J.Patowary, .....Advocate
For Respondent : Mrs. V.L.Singh ...Govt. Advocate
Nos. 1 to 4
For Respondent : Mr. D.K.Mishra ....Sr. Advocate
Nos. 5 to 8 Mr. B.Chakraborty, .... Advocate
For Respondent No.9 : Mr.G.N.Sahewalla .....Sr. Advocate
Ms.R.Jain ..... Advocate
Date of hearing : 01.10.2015
Date of Judgment : 2.11.2015
JUDGMENT & ORDER (CAV)
Heard Mr. K.N.Choudhury, learned senior counsel representing the writ petitioner, assisted by Mr. J. Patowary, Advocate. Also heard Mrs. V.L.Singh, learned State Counsel, representing respondent nos. 1 to 4. Also heard Mr. D.K.Mishra, learned senior counsel representing respondent nos. 5,6,7 and 8 (re-numbered), assisted by Mr. B. Chakraborty, Advocate as well as Mr. G.N.Sahewalla, learned senior counsel representing respondent no.9 (re-numbered), assisted by Ms. R.Jain, Advocate.
2. This writ petition has its genesis in the Press Notice dated 17.12.2014 issued under the hand of the Chief Engineer, PWD (Building), Assam whereby Bids were invited for the following works:
3sl no. Group No. Name of project Approx value of work Cost of Bid
1. A Construction of Ground+4 Rs.743,93542 lakhs Rs.12,500.00
(fiour) storied Residential Apart-
ment building for MLA's at Dispur,
Guwahati-6,(Block-F)
2. B Construction of Ground+4 Rs.743,93542 lakhs Rs.12,500.00
(fiour) storied Residential Apart-
ment building for Hon'ble MLA's
Hostel (2 x 4=8 unit) at Old MLA
Hostel Complex, Dispur, Guwahati-6,
(Block-G).
3. Both the petitioner and the respondent no.9 had responded to the said Notice Inviting Bid and their technical bids were found responsive. Thereafter, process was undertaken for evaluation of the Financial Bids. Whereas the petitioner offered Rs.6,45,77,197/- in respect of the work under Block -F and Rs.6,47,28,000/- in respect of Block-G, the respondent no. 9, on the other hand, had offered an amount of Rs. 7,02,93,599/-, which was common to both Block-F & Block -G. Comparative statements were prepared and the petitioner was adjudged as the L-1 bidder. The evaluation and comparison of the Financial Bids was done having regard to the terms under the Bid Document and the tender of the petitioner was found substantially responsive. Although in terms of the "Award Criteria" at Clause 31 of the Bid Document, power vested with the Chief Engineer, PWD (Building) to award the contract, the same was not forthcoming.
4. At a time when the petitioner was legitimately expecting award of the contract in his favour , being the L-1 and a responsive bidder, he came to learn that the entire documents relating to the tender process had been sent to/requisitioned by the respondent no. 6 i.e. the Principal Secretary, Assam Legislative Assembly, for placing the same before the respondent no.5 i.e. the General Purposes Committee, which is a Committee constituted under the Rules of Procedure and Conduct of Business in Assam Legislative Assembly. On 2.3.2015 the petitioner had submitted an application under the Right to Information Act, 2005 before the respondent no.2 i.e. the Chief Engineer, Public Works Department (Building), Assam seeking a copy of the proceedings of the Minutes of the General Purposes Committee along with a copy of the Comparative Statement. Accordingly, the Minutes of the meeting of the General Purposes Committee held on 27.2.2015 along with a letter issued under the hand of the respondent no.7 i.e. the Additional Secretary, Assam Legislative Assembly were furnished to the petitioner. By the said letter of the respondent no.7 dated 10.3.2015, the Chief Engineer, Public Works Department (Building) was requested to take necessary action in terms of the decision of the General Purposes Committee. It appeared from the Minutes of the Meeting dated 27.2.2015 that the General Purposes Committee had made a recommendation for awarding the work (Block-F & G) in favour of the respondent no.9 (the second highest bidder). The reasons assigned for such recommendation was in view of the apprehension that the petitioner having quoted rates below 10% of the Schedule of Rate (SOR), the same may affect the quality of the work. On the other hand, the case of the second highest bidder was recommended taking note of its experience, 4 quality of work and proficiency in the field, particularly for timely completion of the multi- storied apartments for the MLA Hostel Complex. On such premises, prayer made in the writ petition is for quashing the Minutes of the Meeting of the General Purposes Committee, Assam Legislative Assembly dated 27.2.2015 as well as for a writ in the nature of Mandamus directing the respondent nos. 1 and 2 not to give effect to the recommendation made by the General Purposes Committee.
5. Assailing the interference made by the General Purposes Committee and terming it as a trespasser in the facts and circumstances of the case, Mr. K. N. Choudhury, learned senior counsel, at the outset submits that the petitioner had been adjudged as L-1 bidder for both 'Block-F' and 'Block-G' and there is no dispute to it. The acknowledgement as the L- 1 bidder was done in strict accordance to the terms and conditions of the Bid Document. The evaluation of the Technical Bid of the petitioner was done in strict accordance to Clause 26 of the Bid Document which pertains to examination of bids and determination of responsiveness. A detailed evaluation was made by the Chief Engineer, PWD (Building) determining the bid of the petitioner as having satisfied the requirement under Clause 26.2 of the Bid Document. Further, even in respect of evaluation and comparison of Financial Bids, the prescription under Clause 29 of the Bid Document had been complied with. Particular reference is made by Mr. K. N. Choudhury to Clause 29.5 thereof to show that adequate provisions have been made under the terms and conditions of the Bid Document to meet any shortfall in case the bid of the successful bidder is found to be seriously unbalanced in relation to the Department's estimate of the cost of work to be performed under the contract. Under the said Clause 29.5, the Chief Engineer, PWD (Building) may require the successful bidder to produce a detailed price analysis for any or all items of the Bill of Quantities to demonstrate the internal consistency of those prices with the construction method and schedule proposed. Also, after evaluation of the price analysis, the Chief Engineer PWD (Building) may require that the amount of the performance security as provided in Clause 34 be increased at the expense of the successful bidder to a level sufficient to protect any financial loss in the event of default of the successful bidder under the contract. According to Mr. Choudhury, the petitioner having passed /qualified after a detailed evaluation of his Technical and Financial Bid and having been adjudged as a responsive L-1 bidder, the interference made by an external authority in the tender process and in the award of the contract to the successful bidder, is wholly illegal. As regards the interference made by the General Purposes Committee in the tender process, Mr. Choudhury makes reference to the affidavit-in-opposition filed by respondent nos. 1 to 4. At paragraphs 9 and 14 thereof, statements have been made on behalf of the PWD (Building) that as desired by the Speaker of the Assam Legislative Assembly, all documents had been forwarded to the Principal Secretary to the Assam Legislative Assembly and as per the Minutes of the Meeting of the General Purposes Committee dated 27.2.2015 a decision was made for awarding the work to the respondent no.9 i.e. M/s J. J. Associates. Reference is also made to the proceedings of the meeting of the General Purposes Committee, Assam Legislative Assembly dated 27.2.2015 to say that the broad discussion revolved round the apprehension expressed by the Members therein of the likelihood of sub-standard work if the contract is awarded to the lowest bidder. The said apprehension stemmed from the fact that when a firm could complete the works in less than Rs.1,35,95,203/- against the estimated cost calculated by the PWD and having regard to the past experiences of sub-
5standard works executed by different parties who were awarded contract being lowest bidders, the probability of sub-standard works in the execution of the contract in question cannot be over-ruled. The recommendation made in favour of respondent no.9 and non- consideration of the case of the petitioner despite being the L-1 bidder was on a comparative evaluation made by the General Purposes Committee that the rate of the lowest bidder is 13.20% and 12.99% below the total cost prepared by the PWD for Block- F & G respectively, whereas the respondent no.9 i.e. M/s J.J. Associates had quoted rate at 5.51% below for both the Blocks. The apprehension of the General Purposes Committee is that in case the contract is awarded to the lowest bidder who had quoted rates at 13.20% and 12.99% below the SOR for both Block F & G, the quality of the work would suffer. Mr. K. N. Choudhury submits that this view of the General Purposes Committee is utterly fallacious, in as much as, the terms and conditions of the Bid Document nowhere stipulates disqualification of a Bid if any rate is quoted below 10% of the SOR. It is contended that, notwithstanding the fact that the General Purposes Committee is without jurisdiction to meddle with the tender process, even the apprehension expressed is without any merit as Clause 29.5 of the Bid Document takes adequate care in respect of any unbalanced bids. Mr. Choudhury also makes reference to the Office Memorandum dated 12.6.2009 issued by the Government of Assam, Public Works (Building Cell) Department, to say that restrictions imposed with regard to quoting rate below 10% of the SOR by the contractor in allotment of works have stood withdrawn.
6. It is further contended by Mr. K.N.Choudhury that the power and jurisdiction of the General Purposes Committee to make interference in the tender process and to make recommendation in favour of the respondent no.9 is not traceable to any legislation - not to speak of Article 194 or 208 of the Constitution of India. Reference is also made to the Rules of Procedure and Conduct of Business in Assam Legislative Assembly, particularly to Rule 311A to say that the functions of General Purposes Committee do not inhere in it the power of evaluation of tenders or to make any recommendation about a suitable bidder. Its functions are confined only to the extent as provided under the said Rule 311A and nothing beyond. Mr. Choudhury relies upon the decision of the Apex Court in the case of the Purtabpore Company Ltd. -vs- Cane Commissioner of Bihar and ors., reported in 1969 (1) SCC 308 for the proposition that the General Purposes Committee was not justified in assuming jurisdiction in a matter which have been conferred on the Tender Committee and/or upon the Respondent Nos. 1 and 2.
7. Mr. D.K.Mishra, learned senior counsel representing the respondent nos. 5 to 8 (renumbered from respondent nos. 5, 10, 11 & 12) submits that the General Purposes Committee being a duly constituted body of the Assam Legislative Assembly consisting of elected MLAs with the Speaker as the Chairman, is within its domain to call for the records of matters connected with the affairs of the Assam Legislative Assembly as well as matters incidental thereto. The Committee has every right to see the practicability of the performance and delivery under given conditions, inasmuch as, the works in question relates to the Assembly and full finance is made from the own Budget of the Assembly. As such, the General Purposes Committee is within its power to call for the records, make such suggestion and tender advice as would be deemed necessary. Mr. Mishra also submits that the Writ Petition is wholly pre-mature in the absence of finalization of the process of 6 allotment of work to anybody. No work order having been allotted as on date, it is contended that the allegations made against the General Purposes Committee of arbitrariness, abuse of process, violation of principles of natural justice etc. are wholly uncalled for.
8. Mrs. V. L. Singh, learned counsel representing the Public Works Department i.e. Respondent Nos. 1 to 4 relies upon the affidavit-in-opposition so filed and submits that all documents of the tender in question had been forwarded to the Principal Secretary of the Assam Legislative Assembly as per desire of the Speaker of the Assam Legislative Assembly. It is also submitted that in the meeting held on 27.2.2015 the General Purposes Committee had decided that the work be awarded to the respondent no.9 i.e. M/s J.J. Associates.
9. Mr. G.N. Sahewalla, learned senior counsel representing respondent no.9 (re- numbered from respondent no.13) submits that the PWD considers 10% as the contractor's profit against each item of works. As such, if any rate is tendered below 10% of the estimated rate, the same would inevitably entail sub-standard quality in the execution of the works. It is urged that the petitioner not having quoted a viable rate, there is every likelihood that the quality and efficiency of the work would be compromised.
10. The facts of the case and the submissions made by the learned counsels for the parties have been noticed. The salient point for adjudication is confined to the question as to whether the General Purposes Committee of the Assam Legislative Assembly had any jurisdiction to make interference, advise and make recommendation in a tender process initiated by the office of the PWD (Building). In other words, whether the General Purposes Committee is empowered to play any role in the tender process in question having regard to the scope and ambit of the conditions in the Bid Document.
11. The scope and ambit of the tender process can be had from the terms and conditions specified in the Bid Document. Clause 4 of the Bid Document pertains to Qualification of the Bid. According to the said Clause, more particularly Clause 4.1 thereof, all bidders are to provide by way of Qualification, Information, a preliminary description of the proposed work method and schedule, including the drawings and charts where necessary. The proposed methodology should include programme of construction backed with equipment planning and development duly supported by broad calculation and quality assurance procedures which are proposed to be adopted justifying their capability of execution and completion of work as per technical specifications within the stipulated period of completion. The particulars of information and documents to be furnished with the Bid is specified in Clause 4.3 of the Bid Document, which also includes information and documents with regard to experience in works of similar nature and size etc. Further, under Clause 4.5B and 4.5C, each bidder must not only furnish with their Bid a detailed construction planning and methodology supported with layout and necessary drawings and calculations, but must also demonstrate of having experience and resources sufficient to meet the qualifying criteria for the contracts. The examination of bids and determination of responsiveness, as alluded to hereto before, is essentially provided under Clause 26 of the Bid Document. For better appreciation, Clause 26 is reproduced below :
7"26. Examination of Bids and Determination of Responsiveness 26.1. During the detailed evaluation of "Technical Bids", the Chief Engineer, PWD (Bldg.), Chandmari, Guwahati-3 will determine whether each Bid (a) meets the eligibility criteria defined in Clause 3 and 4; (b) has been properly signed; (c) is accompanied by the required securities and; (d) is substantially responsive to the requirement of the Bidding documents. During the detailed evaluation of the "Financial Bid", the responsiveness of the bids will be further determined with respect to the remaining bid conditions, i.e. priced bill of quantities, technical specification, and drawings.
26.2. A substantially responsive "Financial Bid" is one, which conforms to all the terms, conditions, and specifications of bidding documents, without material deviation or reservation. A material deviation or reservation is one (a) which affects in any substantial way the scope, quality, or performance of the Works;(b) which limits in any substantial way, inconsistent with the Bidding documents, the Chief Engineer, PWD (Bldg.), Chandmari, Guwahati 3's right or the Bidder's obligations under the contract; or (c) whose rectification would affect unfairly the competitive position of other Bidders presenting substantially responsive Bids.
26.3. If a "Financial Bid" is not substantially responsive, it will be rejected by the Chief Engineer, PWD (Bldg.), Chandmari, Guwahait-3, and may not subsequently be made responsive by correction or withdrawals of the non-conforming deviation or reservation."
It appears from the above that the evaluation of both Technical Bid and Financial Bid has to undergo rigorous verification by the Chief Engineer, PWD (Bldg.). After a detailed evaluation of Technical Bid under Clause 26.1, a Financial Bid can only be determined as substantially responsive when it conforms to all the terms, conditions, and specifications of the Bidding Document, without material deviation or reservation, that is, without affecting in any substantial way the scope, quality, or performance of the works and without being inconsistent with the Bidding Document. Under Clause 26.3, discretion vests with the Chief Engineer, PWD (Bldg.) to reject any Financial Bid which is not substantially responsive and the same cannot be substantially cured to make it responsive by way of correction or withdrawal of the non-conforming deviation or reservation.
12. The evaluation and comparison of Financial Bids which are determined to be substantially responsive in accordance with Clause 26.2 vests with the Chief Engineer, PWD (Bldg.), who is defined as the Employer as per Appendix -I to the Bid Document. In evaluating the Bid, the Employer will determine for each Bid the evaluated Bid Price by adjudging the bid price in the manner as indicated in Clause 29.2. Under Clause 29.5 the Employer may also require the successful bidder to produce the detailed price analysis for 8 any or all items of the Bill of Quantities in case the bid of the successful bidder is found to be seriously unbalanced in relation to the department's estimate of the cost of the work to be performed under the contract. The Employer may also require the successful bidder to demonstrate the financial consistency of those prices with the construction methods and schedule proposed. Discretion also vests with the Employer that after evaluation of the price analysis he may require that the amount of performance security be increased at the expense of the successful bidder to a level sufficient to protect against financial loss in the event of default of the successful bidder under the contract. The particulars with regard to performance security are provided under Clause 34 of the Bid Document.
13. The terms and condition as provided in the Bid Document and noticed above, do not go to show any role of the General Purposes Committee to interfere in the tender process. Further, the terms and conditions are exhaustive enough to meet any contingencies for ensuring that the successful bidder will be one who is capable to carry out the work in question without compromise on security and efficiency. Guard against any financial loss is also taken care of by Clause 29.5 of the Bid Document.
14. Turning to the proceedings of the meeting of the General Purposes Committee held on 27.2.2015, the first Agenda itself is an indicia as to the purpose of the meeting. The first Agenda reads as "Selection of parties for construction of Residential Apartment Block F & G for Hon'ble MLAs". The entire proceedings proceeded on the element of apprehension. The members expressed apprehension of sub-standard works on ground that the lowest bidder had offered rates which is less by Rs.1,35,91,203/- than the estimated cost calculated by the PWD and percentage-wise are 13.20% and 12.99% below the total estimated cost for both Block F & G. At this stage it would be apposite to say that an 'apprehension' can only stay in the realm of apprehension and cannot form the basis for rejecting/disregarding the bid of the lowest bidder who has, otherwise, passed the rigorous standard of qualifying in the Technical and Financial Bid in strict terms of the Bid Document. The recommendation made by the General Purposes Committee in favour of respondent no.9, despite being the second lowest bidder, is an action amounting to usurpation of the powers of the Tender Committee and that of the competent authority under the PWD (Bldg,). In any event, the action of the General Purposes Committee to disregard the bid of the petitioner and in making recommendation in favour of the Respondent No.9 is an action without power and authority and dehors the terms and conditions of the Bid Document. In case the decision/recommendation of the General Purposes Committee is allowed to prevail, there will be no meaning as to the sacro-sanctity of a tender process. The decision-making process of the competent authority cannot be allowed to be trampled upon by a Committee which has absolutely no role or say in the said decision-making process.
15. For the fact that the petitioner had offered rates below 13.20% and 12.99% of the SOR cannot operate as a disqualifying ground in view of the aforesaid Office Memorandum 9 dated 12.6.2009 whereby the earlier restriction in quoting rates below 10% of the SOR had been withdrawn.
16. In the case of Purtabpore Company Ltd. -vs- Cane Commissioner of Bihar and ors. (supra), the Apex Court had laid down the proposition that where Executive Officers entrusted with statutory discretion may be obliged to take into account considerations of public policy or that of the policy of a Minister or the Government, that itself will not absolve the officers from their duty to exercise their personal judgment in individual cases unless explicit statutory provision had been made for them to be given binding instruction by a superior. The Apex Court has further clarified to the effect that an authority would not be justified in assuming jurisdiction which had been conferred upon another authority. Taking the cue from the Apex Court judgment, it would not be justified on the part of the PWD to heed to/abide by the instructions/recommendations of the General Purposes Committee which had assumed jurisdiction, albeit illegally and dehors any provisions in the Bid Document to that effect. To reiterate, neither Article 194 nor Article 208 and for that matter Rule 311A of the Rules of Procedure and Conduct of Business in Assam Legislative Assembly confers any power and functions upon the General Purposes Committee to interfere with the decision-making process in the tender in question by way of making any recommendation.
17. An authority amenable to the writ jurisdiction cannot act arbitrarily even in contractual matters by taking recourse to observations and recommendation made by any other authority not connected with the decision-making process. In the instant case, the PWD (Bldg.) is required to act in a manner that would not go to affront Article 14 of the Constitution of India. If a state action is arbitrary, this Court will step in to remedy the wrong. The action of the General Purposes Committee if found to be unjust, unlawful and wholly uncalled for, the Court shall strike to weed out the injustice. Be it the General Purposes Committee or any other authority not connected with the decision-making process in the issue in hand, the law of the country stands tall as it reverberates - " be you ever so high, the laws are above you".
18. In view of the above, there is no hesitation to declare the action of the General Purposes Committee to be illegal and void. Accordingly, while interfering with the proceedings of the meeting of the General Purposes Committee dated 27.2.2015 as being null and void so far it relates to the works in question, a direction is made to the respondent Public Works Department (Bldg.) to proceed with the allotment of work with regard to construction of Residential Apartment's Building in Block-F and Block-G uninfluenced by the observations and recommendation made the General Purposes Committee in its meeting dated 27.2.2015. The PWD (Bldg.) shall now take steps for bringing the tender process to its logical conclusion as expeditiously as possible in strict accordance to the terms of the Bid Document.
19. Resultantly, this Writ Petition stands allowed in terms of the findings and directions above. The parties are left to bear their own costs.