Jammu & Kashmir High Court
M/S Nayak Infrastructure Pvt. Ltd vs State Of J&K & Ors on 1 June, 2013
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 1668 OF 2012 AND OWP No. 1169 OF 2012 AND OWP No. 1170 OF 2012 M/s Nayak Infrastructure Pvt. Ltd Petitioners State of J&K & Ors. Respondent !Mr. R. K. Gupta, Sr. Advocate with Mr. P. N. Sadotra ^Mrs. Seema Shekhar, AAG, Mr. M. K. Bhardwaj, Sr. Advocate with Mr. R. K. Jain, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 01.06.2013 :J U D G M E N T :
(Oral) Block Bhallesa is one of the remotest areas of Jammu Division. It is a part of District Doda having a Hilly-terrain. Because of lack of adequate road connectivity, the people of these areas must be badly suffering. The sun started smiling in land-locked area of Bhallesa when decision was taken for construction of road from Km 2nd L025 to Champal, Block Bhallesa, Package No. JK04-151, Phase VIII, Stage Ist. The road was to be constructed under Pradhan Mantri Gram Sadak Yojana (for short PMGSY).
Fresh notice inviting e-Tenders dated 5th September, 2012 was issued by the Chief Engineer PMGSY (JKRRDA), Jammu on behalf of the Governor of J&K State whereunder fresh e- Tenders on %age Above/Excess (+) OR %age Below/Less(-) (i.e. on Percentage-Rate Basis) were invited from approved and eligible contractors registered with J&K State Government, CPWD, Railways or equivalent and other State Governments. The Tender documents were to be submitted up to 2 PM on 19th September, 2012.
The Competent Authority rejected the technical bid of the petitioner on the ground that bidder has provided wrong information in the affidavit about the litigation as is already in litigation with this department. Hence, non-responsive. Petitioner feeling aggrieved of the said decision of the respondents has challenged the same in this writ petition.
On notice, respondents have filed objections/reply affidavit.
Mr. Gupta, learned Senior counsel while referring to Clause 4.7 of the Standard Bidding Documents (for short SBD) submitted that the reasons given for rejecting the bid of the petitioner does not synchronize sub clause (ii) of Clause 4.7 of the SBD.
Learned counsel submitted that illustrations given in the said Clause have reference about record of poor performance. Learned counsel submitted that the question of poor performance would arise only when the petitioner would have been earlier allotted some work by the respondents and then for any of the cause mentioned in sub-clause (ii) of Clause 4.7 of the SBD, it could be stated that his performance has been poor. Learned counsel submitted that the litigation history is one of the reasons for recording poor performance. Learned counsel submitted that admittedly, the petitioner has never been allotted any work by the official respondents, as such; having litigation history is rendered inconsequential because it has reference only to record of poor performance. Learned counsel laid emphasis on this expression record of poor performance and submitted that in the facts of this case, sub- clause (ii) of Clause 4.7 of the SBD would not be attracted. Learned counsel laid great emphasis on the expression such as appearing in sub-clause (ii) of Clause 4.7 of the SBD and submitted that all the grounds mentioned therein are relatable to the record of poor performance only. Learned counsel submitted that the reasons given for rejecting the bid document of the petitioner does not come within the purview of sub-clause (ii) of Clause 4.7 of the SBD. Learned counsel further submitted that whatever information was required to be given in terms of NIT and SBD which include Section 3 thereof, has been properly given. Learned counsel also submitted that affidavit sworn and enclosed with the Tender document was filed in format prescribed by the official respondents. Learned counsel further submitted that the work for construction of road has been allotted to the private respondents at exorbitant rates. The petitioner had quoted almost Rs. 1.00 Crore (Rupees one Crore) lesser rate than quoted by the private respondents. Learned counsel submitted that the official respondents being custodian of the State Revenue could not award contract to private respondents which has resulted in huge loss to the State exchequer. Learned counsel in support of his contention referred to and relied upon AIR 1978 Supreme Court 851, (2003) 10 SCC 78, (2002)1 SCC 367 and AIR 1999 SC 666. Learned counsel prayed for allowing the writ petition.
Mrs. Seema Shekhar, learned Additional Advocate General submitted that petitioners bid document has been rejected for not giving correct information about the pendency of writ petition between him and the Government. Learned counsel submitted that the official respondents invoked sub-Clause (i) of Clause 4.7 of the SBD for rejecting the bid of the petitioner. Learned counsel further submitted that on the face of terms and conditions of the NIT and SBD, information was to be provided by the petitioner in the required format. Learned counsel also submitted that it is not known as to who has filed the affidavit. Learned counsel also produced record to show that affidavit which the petitioner had filed along with Tender document was containing wrong information. The record was produced to bring to the notice of the Court that despite pendency of the litigation in the shape of writ petitions OWP Nos. 1169/20012 and 1170/2012, incorrect information was given. Learned counsel also referred to Clause 1.10 of Section 3 of the SBD and submitted that information on current litigation in which bidder was involved was to be provided to the official respondents on the format prescribed in the said Section. Learned counsel submitted that no such information was provided in terms of prescribed format and accordingly prayed for dismissal of the writ petition.
Mr. Bhardwaj learned Senior Advocate appearing on behalf of the private respondents submitted that the writ petition cannot be considered, inasmuch as, there was no proper and valid authorization in favour of the person who has filed this writ petition. Learned counsel also submitted that in the admitted fact position of this case viz. litigation was pending between the petitioner and the Government and its authorities, petitioner furnished wrong information, thus, was not entitled for consideration of his bid document, which has rightly been rejected.
Since the decision of this case would turn on the appreciation of Clause 4.7 of the SBD, all other issues projected at Bar by learned counsel for the parties would not require to be considered.
In order to appreciate the arguments of learned counsel for the parties, Clause 10 of NIT, Clause 4.7 of the SBD, Clause 1.10 of Section 3 of the SBD are taken note of:
Clause 10 of NIT:
Any information provided on the format other than those prescribed in the section 3 shall not be accepted and the bid shall be treated non responsive out rightly.
Clause 4.7 of SBD Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have;
(i) Made misleading or false representation in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements; and/or
(ii) Record of proof performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failures etc.
(iii) Participated in the previous bidding for the same work and had quoted unreasonable high or low bid prices and could not furnish rational justification for it to the Employer.
Clause 1.10 of Section 3 of SBD:
Information on current litigation in which the Bidder is involved. Name of Other party(s) Cause of dispute Litigation where(Court/arbitration) Amount involved Any information provided on the format other than those prescribed in the section 3 shall not be accepted and the bid shall be treated non responsive out rightly. Clause 4.7 of the SBD is more than clear and lucid in its expression when it says that even though the bidders meet the above qualifying criteria, but they would be subject to disqualification if they have; (i) made misleading or false representation in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements; and/or (ii) record of proof performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failures etc. The contention of learned counsel for the petitioner is that expression litigation history has reference to record of poor performance in view of the expression such as used in sub clause (ii) of Clause 4.7 of the SBD. The contention of learned counsel for the petitioner appears to be legally correct as all these grounds which are not exhaustive have reference only to the record of poor performance. Admittedly, the petitioner having not previously entered into any contract with the official respondents, his poor performance on any of the grounds mentioned in sub clause (ii) of Clause 4.7 of the SBD cannot be made ground for rejecting his tender documents.
The contention of learned counsel for the petitioner that sub-clause (i) & (ii) of Clause 4.7 are to be read in conjunction merits rejection for the reasons that these are two separate provisions of Clause 4.7 of the SBD, and expression used at the end of Clause (i) is and/or. The expression and/or makes it amply clear that bidder can be disqualified for the reasons mentioned in sub cause (i) of Clause 4.7 of SBD and also on the ground mentioned in sub clause (ii) & (iii). The expression or also declare intention of the competent authority that all or any one of the grounds mentioned in sub clause (i) to (iii) would independently become ground for disqualifying a person who has filed the bid document.
Clause 10 of the NIT is notice to the bidder that any information provided on the format other than one prescribed in the Section 3 shall not be accepted and the bid shall be treated non responsive out rightly.
Clause 1.10 of Section 3 requires the bidder to furnish information on current litigation in which he is involved.
The important note of Section 3 mandates for giving information on the format as prescribed in Section 3. It is also informed that the information on any other format would not be accepted and the bid shall be treated non responsive out rightly.
The petitioner has reproduced the contents of format of affidavit in his affidavit. The affidavit though is not properly worded but purpose for filing the affidavit is to provide information in respect of the items listed in the format of the affidavit. Paragraph 2 of the format reads, we have not been fallen into litigation with any Government Department. The purpose of filing affidavit is to elicit information from the bidder, whether he is locked in litigation with the Government and its Authorities. It would not lie in the mouth of the bidder to say that whatever is mentioned in the format is only to be reproduced. If the purpose was only to reproduce the format in the affidavit then there was no requirement of filing of the same. The petitioner was duty bound to state in the affidavit enclosed with the tender document that he infact is litigating with the Government and its Authorities in earlier two writ petitions. Even otherwise in terms of Clause 1.10 of Section 3, the petitioner bidder was under obligation to provide information about the current litigation. The terms and conditions of the NIT and SBD bind the authorities who issued the same as also the person who responds to NIT. The competent authority of the government issued NIT on the terms and conditions mentioned therein and invited offers from the eligible persons. When a person comes forward with his offer, he has to satisfy the terms and conditions of the NIT and SBD. Thereafter the competent authority can take a decision to accept or not to accept the tender documents. In this case admittedly the information of the pending litigation has not been given to the respondent-authority by the petitioner which was the information of vital importance.
In view of the aforesaid facts, it is held that the case of the petitioner is covered by sub clause (i) of Clause 4.7 of the SBD and that he has given misleading and incorrect statement in the affidavit. Even otherwise there is non compliance with Clause 1.10 of the said Section 3 that also disentitles the petitioner for consideration of his claim.
The judgments cited at Bar were referred to explain expression such as, which contention of learned counsel for the petitioner has been accepted. The record produced by learned Additional Advocate General would show that there is non compliance with Clause 1.10 of Section 3 of the SBD as in all the columns he has used word nil. On the terms and conditions of NIT and SBD, the tender documents were to be rejected. Article 14 which constitute soul of the Constitution of India is not offended in the facts of this case For the above stated reasons, this Writ Petition OWP no. 1668/2012 along with connected CMA(s) is, accordingly, dismissed.
At request, list OWP nos. 1169/2012 & 1170/2012 on 04.06.2013.
(Muzaffar Hussain Attar) Judge Jammu, 01.06.2013 Vijay