Punjab-Haryana High Court
Ludhiana Builders vs State Of Punjab And Others ... on 4 April, 2012
CWP No. 6412 of 2012 -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
CWP No. 6412 of 2012
Date of Decision: April 04, 2012
Ludhiana Builders ----Petitioner
Versus
State of Punjab and others ---Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE ALOK SINGH
Present: Mr. Sunil Chadha, Advocate
for the petitioner.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR, J.
1. The instant petition filed under Article 226 of the Constitution prays for quashing e-tender No. MCL/(Civil)/2011- 12/000011 (P-1) inviting e-tenders by Municipal Corporation, Ludhiana-respondent No.2 on Double Bid System (DBS) (Technical and Financial Bid) for additional items such as Civil, Public Health, Electrical, Lifts and HVAC etc. at Indoor Stadium Complex, Pakhowal Road (Phase-II), Ludhiana. A further prayer for quashing Corrigendum dated 31.03.2012 (P-2) has also been made on the ground that it is grossly illegal, oppressive, unreasonable, arbitrary and thus, violative of Article 14 of the Constitution. The principal basis of challenge is that it aims at avoiding healthy competition and prevents creating a level playing field with the sole object of helping a particular bidder and the same is contrary to the guidelines issued on 27.11.2009 (P-3) CWP No. 6412 of 2012 -2- by the Government of India. The petitioner has made a sustained attack on clause 9 of the qualification criteria whereby a bidder executed two works each costing ` 10.00 crores or completed one work costing ` 20.00 crores during the last five years ending last day of June 2011.
2. Brief facts of the case disclosed in the petition are that the Municipal Corporation-respondent No.2 invited e-tenders on DBS. As per the aforesaid notice inviting e-tender, estimated cost of the work is ` 2570 lacs, which required depositing of earnest money of ` 65 lacs and processing fee of ` 5,515/-. The time limit fixed is 18 months. As per notice (P-1) on-line sale of bidding document was fixed upto 02.04.2012 (2:30 pm) and the last date of on-line submission of bidding document was also kept as 02.04.2012 (upto 3:00 pm). The technical bids were to be opened on 03.04.2012 at 11:00 am and the financial bids were to be announced on 03.04.2012. However, a corrigendum No.2 dated 31.03.2012 (P-2) was issued by the Additional Commissioner (T), Municipal Corporation, Ludhiana-respondent No.3 resulting in advancing the date of on-line sale of bidding document to 16.04.2012 (2:30 pm) and the last date of on-line submission of bidding document was also changed to 16.04.2012 (3:00 pm). The technical bids were to be opened on 17.04.2012 (11:00 am) and the financial bids were to be announced thereafter on 17.04.2012.
3. The primary grievance of the petitioner is that the notice inviting e-tenders (P-1) and corrigendum dated 31.03.2012 (P-2) have been designed in such a way so as to favour a particular bidder/ person and to outclass other intending bidders CWP No. 6412 of 2012 -3- like the petitioner. A specific objection has been raised to the provisions of clause 9A of concerning qualification criteria stipulating that bidder is required to have executed two works each costing ` 10.00 Crores or above or must have completed one work costing ` 20.00 Crores or above during the last five years ending last day of June, 2011. The claim of the petitioner is that it fulfilled the criteria but vide corrigendum dated 31.03.2012 (P-
2), the criteria was changed and a bidder is required to have executed two works each costing ` 15.00 Crores or should have completed one work costing ` 25.00 Crores, during the last five years ending last day of February, 2012. A further stipulation has been engrafted indicating that a bidder had annual financial turnover of ` 50.00 Crores on construction works during the last three financial years ending 31.03.2011. The aforesaid condition is stated to be oppressive, contrary to the guidelines issued by the Government of India. It has further been argued that it has been designed to favour a particular bidder and in order to outclass other intending the bidders including the petitioner.
4. Mr. Sunil Chadha, learned counsel for the petitioner has vehemently argued that as per circular dated 27.11.2009 (P-
3), guidelines have been laid down regarding procedures to be adopted for inviting tenders and qualification of Contractors for execution of Road and Bridge works in respect of National Highways and Centrally Financed Schemes. According to learned counsel, clause 2.63 under the heading 'Qualification Criteria' a bidder is required to meet the following criteria; (a) over the last five years, complete annual turnover should be 40% of the value of the contract applied. The estimated cost of the project CWP No. 6412 of 2012 -4- according to learned counsel is ` 2570 lacs and 40% of the same would come to ` 1028 lacs. Accordingly, a bidder for the tender is required to have completed one or two works costing ` 1028 lacs and likewise should have annual financial turnover of ` 1028 lacs on construction works during the last three financial year ending 31.03.2011.
5. The argument looks attractive but we fail to find any substance in the same because firstly the Government of India, Ministry of Road Transport and Highways has issued those instructions for the execution of Road and Bridge works on National Highways and Centrally Financed Schemes. Therefore, it would not apply to the tender in question. A perusal of the opening para would further show that with the developmental activities on National Highways having increased manifolds in recent years, the need for building capacity in the construction industry has come in the sharp focus and therefore, it was decided to permit the joint ventures to participate in bids for projects costing ` 25 Crores in all States other than North Eastern Region and Jammu and Kashmir. It is, thus, evident that the circular has no application on the tender invited by the Municipal Corporation Ludhiana, which is for the additional items Civil, Public Health, Electrical Lifts and HVAC etc. at Indoor Stadium Complex at Pakhowal Road (Phase-II), Ludhiana. In any case, Municipal Corporation, Ludhiana has stipulated the qualification concerning financial bids requiring a bidder to have executed two works each costing ` 15 crores or ought to have one work costing ` 25 crores. The aforesaid norm is higher than the one contemplated by the circular dated 27.11.2009 (P-3), therefore, it CWP No. 6412 of 2012 -5- cannot be regarded as violative of article 14 of the Constitution, if a higher standard is laid than the one prescribed by the circular, the object of the circular appears to be not to allow a bidder with poor financial condition to qualify for such contract. It is well settled that the higher qualification than the one minimum prescribed could always be laid by public authority and it would not lead to any arbitrary exercise of power. The other argument is that the onerous condition has been imposed in order to facilitate the eligibility of only one of the persons. There is no detail of any such person either in the petition or at the time of argument despite repeated queries made by the Bench. The memo of party does not show impleadment of any private person. Accordingly, we can safely presume that the arguments have been devised as a fragment of imagination. The writ petition does not merit admission and is thus liable to be dismissed.
6. For the reasons aforementioned, the writ petition fails and the same is dismissed.
(M.M. KUMAR)
JUDGE
(ALOK SINGH)
April 04, 2012 JUDGE
Atul