Rajasthan High Court - Jaipur
Ms Dilip Buildcon Limited vs State Of Raj And Ors on 26 October, 2018
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 8492/2018
M/s Dilip Buildcon Limited Having Its Registered Office At: Plot
No. 5, Inside Govindnarayan Singh Gate Chuna Bhatti, Kolar
Road, Bhopal-462016 (MP) Through its authorized signatory
Mr.Satish Kumar Yadav.
----Petitioner
Versus
1. State Of Rajasthan Through Secretary, Ministry Of Water
Resources, Water Resources Zone, JLN Marg, Jaipur-
302017
2. Additional Chief Engineer (ACE), Water Resources
Department, Govt. Of Rajasthan, Sinchai Bhawan, JLN
Marg, Jaipur, Rajasthan-302017
3. Chief Engineer, First Appellate Authority, Water Resource
Department, Rajasthan Bhawani Singh Marg, Near High
Court Circle, Jaipur, Rajasthan 302005
4. Principal Secretary, Water Resource Department, Second
Appellate Authority, Secretariat, Bhagwant Das Road,
Jaipur, Rajasthan 302005
5. M/s Om Metals Infra Projects Ltd., J-28, Subhash Marg,
C-Scheme, Jaipur - 302 001
6. M/s Simplex-Precision Isarda JV, Simplex House 27,
Shakespeare Sarani, Kolkata - 700017, also at: 502-A, A
Wing, Poonam Chambers, Dr. Annie Besant Road, Worli,
Mumbai-400018 , also at: Precision Infratech Limited,
7/C-D, "Suryanath", Panchwati, Ellisbridge, Ahmedabad -
380006, Gujrat
7. M/s.Angelique International Limited (JV), 104-107,
Hemkunt Towers First Floor, 98, Nehru Place New Delhi-
110019 India also at: Hardware Tools & Machinery
Projects Pvt. Ltd. 803 Shapath-I, Opp. Rajpath Club, S.G.
Highway, Ahmedabad - 380015
8. M/s.Patel Engineering Ltd., Patel Estate Road, Jogeshwari
(W), Mumbai-400102.
----Respondents
For Petitioner(s) : Mr.R.P.Singh, Sr.Advocate assisted by
(2 of 26) [CW-8492/2018]
Mr.Nishant Sharma, Advocate.
For Respondent(s) : Mr.J.M.Saxena, Addl. Advocate
General, Mr.S.S.Hora, Advcoate &
Mr.Rahul Lodha, Advocate.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment reserved on : 1st October, 2018.
Date of Judgment : 26th October, 2018.
REPORTABLE
By the Court:-
1. The petitioner-Company has filed the present petition challenging the order dated 05.01.2018 wherein its technical bid has been treated as "non-responsive" on account of not fulfilling the required experience of seven years, as the petitioner-Company is alleged to have commenced the construction work on 27.12.2010.
2. The petitioner-Company has felt aggrieved against order dated 29.01.2018, passed by the Chief Engineer (first appellate authority) and order dated 13.04.2018, passed by the Principal Secretary, Water Resource Department (second appellate authority), who have rejected the first and second appeals respectively filed by the petitioner-Company against rejection of his technical bid, communicated to him vide order dated 05.01.2018.
3. The petitioner-Company has further sought a mandamus against the respondents to consider its technical bid as responsive and to evaluate the financial bid accordingly in pursuance of E-
Notice Inviting Bid No.07/2017-18 dated 10.10.2017 for
(3 of 26) [CW-8492/2018]
construction of Isarda Dam, across Banas river for drinking water, near village Banetha, District Tonk (Rajasthan).
4. The brief facts of the case are that the Government of Rajasthan, Water Resource Department, issued E-Notice Inviting Bid (NIB) dated 10.10.2017 for planning, investigation, design, drawing and construction of Isarda Dam, across Banas river for drinking water, near village Banetha, District Tonk (Rajasthan) on Engineering Procurement Construction basis (Single Responsibility Turn Key Project) including its operation and maintenance for five years (hereinafter shall be referred to as 'the NIB').
5. The petitioner-Company has pleaded in the petition that as per the original NIB, the date for downloading the tender document was from 10.10.2017 to 16.11.2017 and the date for uploading the tender document was till 16.11.2017 by 1800 Hrs (PM) and the deadline for submitting the bid was 17.11.2017 by 1300 Hrs (PM). It is pleaded that on 06.11.2017 a corrigendum bearing letter No.4754 was issued amending the time towards the process of bid submission and bid submission deadline was extended till 07.12.2017 by 1300 Hrs (PM).
6. The petitioner-Company has pleaded in the petition that under Section-3 [Evaluation and Qualification Criteria] of the bid document, the petitioner-Company satisfied the condition No.4(i) which required experience under construction contracts in the role of contractor, sub-contractor or management contractor for at least last seven years prior to the bid submission deadline.
7. The petitioner-Company has pleaded that since it fulfilled all the eligibility conditions, the petitioner-Company submitted the bid (4 of 26) [CW-8492/2018] on 06.12.2017 and also submitted the Earnest Money Deposit (for short "EMD") to the tune of Rs.13,07,00,000/- i.e. 2% of the estimated cost of work being Rs.653.50 Crores, vide bank guarantees.
8. The petitioner-Company has pleaded that a concession agreement dated 25.03.2010 was signed by the National Highway Authority of India for the works of four laning of Ahmedabad to Godhra Section of NH-59 from Km 4.200 to Km 122.420 in the State of Gujarat on design, build, finance, operate and transfer (DBFOT) basis. It is pleaded that under the said work, Pan India Infrastructures Pvt. Ltd. was appointed as Concessionaire's EPC and the said entity appointed the petitioner-Company vide agreement dated 26.04.2010 as Contractor for the said work.
9. The petitioner-Company has pleaded in the petition that it was the contractor in the said work since 26.04.2010 and therefore had the due experience of seven years, required under the clause for qualifying as a successful bidder. The petitioner- Company has pleaded that it was given mobilization advance on 27.04.2010 towards the said work, as shown from the TDS certificates and ledger account. The petitioner-Company has pleaded that it had submitted the work completion certificate dated 10.07.2013 for the said project along with the bid which records that it was the contractor and the date of agreement was 26.04.2010.
10. The petitioner-Company has further pleaded that even in the excel-sheet filed along with the tender, the date of issue of the work was mentioned by the petitioner-Company as 26.04.2010 (5 of 26) [CW-8492/2018] and not 27.12.2010.
11. The petitioner-Company has pleaded in the petition that the respondents declared the technical bid of the petitioner-Company, as non-responsive, on the basis of typographical error in Form- EXP-1 [General Construction Experience] and without considering the concerned documents filed with the bid and also without seeking any clarification from the petitioner-Company, despite provisions to that effect in the tender document.
12. The petitioner-Company has pleaded in the writ petition that when it came to know about the bid order dated 05.01.2018, petitioner-Company immediately wrote a letter dated 06.01.2018 and acknowledged that there was a typographical error in one of the forms of the bid. The petitioner-Company also annexed other certificates along with his representation clearly showing that the petitioner-Company had experience for more than seven years. It has been pleaded that in spite of such clarifications being given, the representation of the petitioner-Company was not considered by the respondents and financial bid was opened hurriedly on 08.01.2018.
13. The petitioner-Company has pleaded that feeling aggrieved and dissatisfied with the notice dated 05.01.2018 and subsequent actions of the respondents, Company filed S.B.Civil Writ Petition No.966/2018 before this court and the said petition was disposed of on 16.01.2018 with direction to file appeals, as per provisions of the Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter shall be referred to as 'the Act of 2012') and the interim protection was also given to the petitioner-Company.
(6 of 26) [CW-8492/2018]
14. The petitioner-Company has pleaded that it filed first appeal under Section 38 of the Act of 2012 before the respondent No.3 on 17.01.2018, however, the petitioner-Company's first appeal was dismissed on 29.01.2018 by the impugned order. The petitioner-Company has pleaded that it filed second appeal before the respondent No.4 on 30.01.2018 and the said second appeal was also dismissed on 13.04.2018 by the impugned order. The petitioner-Company has now challenged the orders of both the appellate authorities as well as the order dated 05.01.2018 whereby technical bid of the petitioner-Company has been found to be non-responsive.
15. The petitioner-Company has assailed action of the respondents as arbitrary and illegal by treating its technical bid as non-responsive. The petitioner-Company has alleged that it was awarded a contract on 26.04.2010 and after signing the said contract, several steps were required to be taken and when the petitioner-Company filed work completion certificate dated 10.07.2013, the authorities have wrongly treated experience of the petitioner-Company w.e.f. 27.12.2010.
16. The petitioner-Company has alleged that if seven years experience is to be counted backwards from the last date of submission of form i.e. from 07.12.2017, the petitioner-Company since had entered into the agreement on 26.04.2010, it has to be assumed that the petitioner-Company had completed the required seven years experience.
17. The official respondents have filed reply to the writ petition. The respondents have pleaded that the petitioner-Company did (7 of 26) [CW-8492/2018] not meet the experience qualification, as required in the technical bid. The procuring entity/Bid Evaluation Committee has taken date of start of construction work, as date for calculation of experience criteria. It is asserted that the petitioner-Company itself indicated specifically, in the form filed by it, the date of start of construction work was 27.12.2010 and date of completion was 31.03.2013. It is pleaded that the procuring entity/Bid Evaluation Committee has taken the date of start of work as 27.12.2010 for calculating experience till 06.12.2017 and it worked out as six years, eleven months and eleven days, which was less than seven years experience. It has been pleaded that the petitioner-Company is wrongly intending to project its experience of seven years from the date of signing agreement i.e. 26.04.2010 and the same cannot be held relevant for the purpose of counting experience.
18. The respondents have pleaded that the bid process was transparent and bid document along with instructions made each and every aspect very clear to ensure that there may not be any confusion and the bidders may easily follow the procedure and conditions of bid.
19. It is pleaded that the procedure and conditions of bid further allowed every bidder to participate and for which a pre-bid conference meeting was organized with a view to see that the prospective bidder may discuss each and every aspect of the matter and may seek assistance while raising queries on any issue with regard to the project/bid procedure and if anything was required to be corrected/modified or any confusion found was to be removed, the same could be done so and the entire process (8 of 26) [CW-8492/2018] was to follow smoothly without any obstruction.
20. The respondents have pleaded that the issue with regard to experience was very specifically made clear in the bid document (evaluation and qualification criteria) specifying "experience under the construction contracts in the role of contractor, sub-contractor or management contractor for at least seven years prior to the bid submission dead line". It has been pleaded that the reasoning of the petitioner-Company that the date of agreement should be treated as crucial date for counting the experience, if that be so, it is normally seen that the tenders floated by the respective authorities though very clearly indicate the date of commencement and completion but for some reason or the other the date of commencement gets extended unimaginably and thus an interference cannot be drawn that the date of execution of agreement is the date of commencement of work on the project.
21. It is pleaded that after issuance of work order to the successful bidder, agreement is executed stipulating the date of commencement but as experienced by Government time and again, work normally does not get commenced, as indicated in the agreement itself and hence, the period between actual commencement and completion is not to be counted towards experience to get technically qualified.
22. The respondents have pleaded that clause 5.2.1 of the tender document prescribes for clarification of technical or financial bid. The Bid Evaluation Committee may at its discretion can ask any bidder for clarification regarding its bid. In the instant case the petitioner-Company itself has indicated the date of start (9 of 26) [CW-8492/2018] of work and thus there was no occasion for the Bid Evaluation Committee to seek any clarification on that aspect. It has been further pleaded that clause 5.7.2 of the bid document, which refers to responsiveness of technical or financial bids, specifically states that a substantially responsive technical or financial bid, is one that meets without material deviation, reservation or omission to all the terms, conditions and specifications of the bidding document and a material deviation, reservation or omission is one that:
(a) if accepted would (i) affect in any substantial way the scope, quality or performance of the work; or (ii) limits in any substantial way, inconsistent with the bidding document, the procuring entity's rights or the bidder's obligations under the proposed contract; or
(b) if rectified, would unfairly affect the competitive position of other bidders presenting substantially responsive bid.
23. The respondents have further referred to clause 5.7.4 of the tender document which prescribes that if a technical or financial bid is not substantially responsive to the bidding document, it shall be rejected by the procuring entity and may not subsequently be made responsive by the bidder by correction of the material deviation, reservation or omission. The respondents have pleaded that clause 5.9.1 of the tender document provides that the determination of qualification of a bidder in evaluation of technical bid shall be based upon an examination of the documentary evidence of the bidder's qualifications submitted by the bidder, pursuant to ITB clause 3.8 and in accordance with the (10 of 26) [CW-8492/2018] qualification criteria indicated in Section-III. Factors not included in Section III, shall not be used in the evaluation of the bidder's qualification. The respondents have further pleaded that clause 5.12.1 of the tender document relates to negotiations, which provides that to the extent possible, no negotiations shall be conducted after the pre-bid stage and all clarifications needed to be sought shall be sought in the pre-bid stage itself.
24. The respondents have pleaded that criteria adopted by the Bid Evaluation Committee, while evaluating technical bids, have been applied uniformly without any discrimination, the bidders who participated in the process have submitted the date of start of the work and date of completion of work in Form-EXP-1 and thus, the petitioner-Company was very well aware of the conditions and process and as such it does not have any case. The respondents have also supported the orders passed by both the appellate authorities in rejecting the appeals of the petitioner-Company and have reiterated that the appellate authorities have taken into account all the submissions made on behalf of the petitioner- Company and further considered the relevant case law and as such no error is committed by the both the appellate authorities in rejecting the claim of the petitioner-Company.
25. The respondent No.5 has also filed reply to the writ petition and has pleaded in his reply that the petitioner-Company has rightly been not considered qualified in technical bid as it did not have the requisite experience of seven years. It has been submitted that the document for counting the period for experience, as submitted by the petitioner-Company, was a (11 of 26) [CW-8492/2018] certificate from M/s.Pan India Infrastructures Pvt. Ltd. dated 10.07.2013. The four dates mentioned in the work completion certificate by the petitioner-Company, which are given in tabulation form, are as follows:-
Appointed Date 27th December, 2010
Agreement Date 26th April, 2010
Date of Start 27th December, 2010
Construction Period 27 months
Scheduled date of completion 27th March, 2013
Actual date of completion 31.03.2013
26. It has been submitted that experience would commence from the date of start of the project i.e. from 27.12.2010 and which was less than seven years as on 06.12.2017. It has been submitted that starting date of the project i.e. 27.12.2010 was not a confusion or typographical error rather it was the start date as borne out from the experience certificate. It has been submitted that while applying for bid, bidding forms submitted under 4.5.9 Form-EXP-1 [General Construction Experience]; the same was mandatory to each bidder to give in the format and the petitioner- Company itself submitted the starting month/year was 27.12.2010 and ending month/year was 31.03.2013. The said document has been filed as Annexure-R5/3 with the reply to writ petition.
27. The respondent No.5 has pleaded that the date of agreement/contract of the petitioner-Company on 26.04.2010 in no case can be relevant for the purpose of experience because the start date of the contract was mentioned as 27.12.2010. The respondent No.5 has further submitted that the requirement of (12 of 26) [CW-8492/2018] experience is an essential and material condition of the contract and technical qualifications given in the bid document are pre- requisite and necessary before entertaining the bid. The respondent No.5 has pleaded that the claim of the petitioner- Company to declare as technically qualified is absolutely baseless.
28. Learned Senior Counsel for the petitioner-Company Mr.R.P.Singh has made following submissions in support of the case of the petitioner-Company:-
(a) There was a typographical error in the document submitted by the petitioner-Company and in fact the date of commencement of work was 26.04.2010 itself, the date on which the petitioner-
Company had entered into the agreement. The typographical error was sought to be clarified by petitioner-Company but the same was not permitted erroneously.
(b) There was an ambiguity in the tender document and due to such ambiguity the petitioner-Company in a bonafide manner had given the date of agreement as 26.04.2010 and the work which commenced on 27.12.2010 cannot have relevance once the agreement is executed to undertake a particular project.
(c) The petitioner-Company has the requisite seven years experience on the last cut-off date and the respondents have illegally kept the petitioner-Company out of fray in the matter of grant of contract.
(d) The respondents have illegally deprived the petitioner- Company to rectify/correct the typographical error in one of the forms of tender document and immediately on discovering of the (13 of 26) [CW-8492/2018] typographical error, the petitioner-Company responded but the respondents acted arbitrarily in proceeding to open the financial bid without involving the petitioner-Company.
(e) The action of the respondents is not in conformity with the settled law that while considering the decision making process of the Government, in awarding contracts, such process should exclude the remotest possibility of discrimination, arbitrariness and favouritism and the same should be transparent.
(f) Opening of financial bid eventually by the respondents on 08.01.2018 showed that the petitioner-Company had given the bid of Rs.50 Crores less than the lowest financial bid opened on 08.01.2018. The State being the custodian of public money is required to consider the best offer which is given by a bidder to bring down the cost of public projects and respondents have ignored this aspect of the matter in most illegal manner.
29. Counsel for the petitioner-Company, in support of his arguments, has relied upon the judgment of the Apex Court in the case of Industrial Promotion & Investment Corp. of Orissa Ltd. Vs. New India Assurance Co. Ltd. & Anr. reported in 2016 (15) SCC 315 [para 9 & 10], New Horizons Ltd. & Anr. Vs. UOI & Ors. reported in 1995 (1) SCC 478 [para 17] and Ganpati Rv-Talleres Alegria Track Pvt. Ltd. Vs. UOI and Another reported in 2009 (1) SCC 589 [para 23].
30. Per contra, Mr.J.M.Saxena, learned Additional Advocate General has submitted that the claim of the petitioner-Company is wholly unjustified. The petitioner-Company did not have the requisite seven years experience. Counsel submitted that there (14 of 26) [CW-8492/2018] was no ambiguity in any of the stipulations provided under the bid document. Counsel submitted that if at all there was some query by any bidder, there was a pre-bid conference meeting, as per condition No.2.2.2 of the tender document and the petitioner- Company was well within its right to ask for clarifications about experience or any other issue.
31. Counsel submitted that there is a proper format in the tender document as Form-EXP-1 [General Construction Experience] and the petitioner-Company at S.No.11 had given the starting month and year as 27.12.2010 as experience and the ending month and year was shown as 31.03.2013 and the role of bidder was shown as sub-contractor of four laning of Ahmedabad to Godhra Section. Counsel submitted that the petitioner-Company itself has filled the format and has given the construction experience and as such it cannot be said that the respondents have treated the petitioner- Company technically disqualified in wrong and illegal manner.
32. Mr.J.M.Saxena, learned Additional Advocate General submitted that the requirement of having seven years experience cannot be diluted in any case and even if the petitioner-Company is having 21 days less experience, the same does not make the petitioner-Company technically qualified bidder and the authorities have not committed any illegality. Mr.Saxena has further submitted that this court under Article 226 of the Constitution of India may not exercise its discretionary power to confer or to make technically disqualified bidder to be technically qualified only on account of the alleged offer of Rs.50 Crores less for the entire project. Mr.Saxena submitted that first of all the petitioner-
(15 of 26) [CW-8492/2018] Company has to be technically qualified than only the question of comparison of financial bid can be raised by the bidder. Mr.Saxena submitted that the petitioner-Company has not reached to that stage of opening of financial bid and as such it cannot be pleaded that the petitioner-Company had given better offer in respect of the public project.
33. Mr.S.S.Hora, learned counsel for the respondent No.5 submitted that the experience required is the actual experience and not the comparison on papers or by having only a certificate or alleged date of agreement dated 26.04.2010. Mr.Hora submitted that the State Officers of the respondents have proceeded as per the terms and conditions prescribed in the tender document and as per own version given by the petitioner- Company, it had commenced the work on 27.12.2010 and the period prior to 27.12.2010 to 26.04.2010 cannot be counted for the purpose of construction experience. Mr.Hora submitted that the documents and information submitted by the petitioner- Company itself reflected that they were not technically qualified and as such no inference is required to be made by this court. Mr.Hora has submitted that scope of interference in tender matters is very limited and the experience/technical qualification is essential and the same cannot be diluted by the court by exercising power under Article 226 of the Constitution of India.
34. Counsel submitted that experience is to be given ordinary meaning but the requirement has to be strictly complied. Mr.Hora further submitted that though there was no typographical error, as has been claimed by the petitioner-Company, assuming for the (16 of 26) [CW-8492/2018] sake of argument, the said error cannot be allowed to be corrected after opening of the bid and the respondents have accordingly taken proper decision in rejecting the claim of the petitioner-Company.
35. Mr.S.S.Hora, learned counsel for the respondent No.5, in support of his arguments, has placed reliance on the judgments of the Apex Court in Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and Another reported in (2016) 16 SCC 818, Central Coalfields Limited and Another Vs. SLL-SML (Joint Venture Consortium) and Others reported in (2016) 8 SCC 622, Municipal Corporation, Ujjain & Another Vs. BVG India Limited and Others reported in 2018 SCC OnLine SC 278, W.B.State Electricity Board Vs. Patel Engineering Co.Ltd. and Others reported in (2001) 2 SCC 451 and K.K.Dixit and Others Vs. Rajasthan Housing Board and Another reported in (2015) 1 SCC 474.
36. I have heard learned counsel for the parties and with their assistance perused the material.
37. It would be appropriate to quote the relevant portion of the order dated 05.01.2018 whereby the bid of the petitioner- Company has been held to be technically non-responsive. The same reads as under:-
"dk;kZy; vfrfjDr eq[; vfHk;Urk ty lalk/ku laHkkx] t;iqj rduhdh fczM bZO;wys'ku cSBd dk dk;Zokgh fooj.k v/kh{k.k vfHk;Urk ljnk ifj;kstuk o`Rr Vksad ds i=kad 598 fnukad 19.12.2017 }kjk muds v/khuLFk [k.M bZljnk ifj;kstuk [k.M Vksad es djk;s tkus okys Planning, Investigation, Design & Construction of Iserda Dam across Banas River for drinking water near village Banetha Dist. Tonk Rajasthan on engg. Procourement (17 of 26) [CW-8492/2018] construction basis single responsibility turnkey project including O and M for 5 Years. dk fufon izdj.k izkIr gqvk gSA fufonk izdj.k dk ijh{k.k dj foRrh; fczM [kksyus dk fu.kZ; djus ds fy, fnukad 05.01.2018 dks lka;% 5:30 cts vfrfjDr eq[; vfHk;Urk ds d{k esa fczM bZZO;wys'ku desVh dh cSBd vk;ksftr dh x;h ftlesa fuEukafdr vf/kdkjh mifLFkr gq,&
01. eq[; ys[kkf/kdkjh ty lalk/ku laHkkx] t;iqj lnL;
02. v/kh{k.k vfHk;Urk bZljnk ifj;kstuk o`Rr Vksad lnL;
03. vf/k'kk"kh vfHk;Urk ¼bZljnk½ dk;kZy; gktkA lnL;
04. vf/k'kk"kh vfHk;Urk bZljnk ifj;kstuk [k.M Vksad ¼fjiztsfUVx vkWfQlj½ mDr dk;Z gsrq fuEukafdr dEifu;ksa dh vkWuykbZu fufonk,¡ izkIr gqbZ Fkh %&
1. M/S Om Metals Infra Projects Ltd. New Delhi
2. M/S Simplex-Precision Isarda JV Mumbai
3. M/S Angelique International Ltd. New Delhi
4. M/S Patel Engineering Ltd. Mumbai
5. M/S Ghana Ram Infra Engineering Pvt. Ltd. New Delhi
6. M/S Dilip Buildcon Ltd. Bhopal (M.P.) vf/k'kk"kh vfHk;Urk bZljnk ifj;kstuk [k.M Vksad ¼fjiztsfUVax vkWfQlj½ us mDr fufonkdkjksa ls vkWuykbZu izkIr MkWD;wesaVl ,oa izekf.kr djokdj eaxok;s x;s dk;kZuqHko izek.k i=ksa ds vk/kkj ij rS;kj dh xbZ fczM bO;wys'ku fjiksVZ desVh ds le{k izLrqr dh lfefr }kjk izdj.k ,oa nLrkostksa dk xgu ijh{k.k dj fopkj foe'kZ djus ds i'pkr fuEukafdr fu.kZ; fy;s x;s %& Ø-l- dEiuh dk uke desVh dk fu.kZ;
6 M/S Dilip fufonkdkj }kjk izLrqr dk;kZuqHko izek.k i= ftlesa Buildcon Ltd. buds }kjk lc dkWUVªsDVj ds :i esa dk;Z laikfnr Bhopal (M.P.) fd;k x;k gS] esa dk;Z izkjEHk djus dh frfFk 27.12.2010 gS tks fd fizaV MkWD;wesaV ds fcUnq la[;k 4(1) ds vUrxZr pkgs x;s 7 o"kZ sds dk;kZuqHko ls de vof/k dk gksus ds dkj.k lfefr }kjk budh rduhdh fczM dk ukWu jsLiksfUlo ekuk x;kA rduhdh :i ls lQy fufonkdkjksa dh foRrh; fufonk fnukad 08.01.2018 dks izkr% 11:00 cts vfrfjDr eq[; vfHk;Urk dk;kZy; ty lalk/ku laHkkx t;iqj esa [kksyh tkosxhA Xen Isarada Xer (Isarada) SE Isarda CAO WR ACE WR Project W R Zone Project Zone Zone Div. Tonk Jaipur Circle Tonk Jaipur Jaipur"
38. It would be further appropriate to quote the relevant clauses of the tender document, which are as follows:-
"Section-1: Instructions to Bidders (18 of 26) [CW-8492/2018]
1. General 1.1 Scope of Bid 1.1.1 In support of the invitation to Bid indicated in the Bid Data Sheet (BDS), the Procuring Entity as indicated in the BDS, issues this Bidding Document for the procurement of works as named in the BDS and as specified in Section V, Procuring Entity's Requirements.
1.4 Eligible 1.4.1 A Bidder may be a natural person, Bidders private Entity, Government-owned Entity or, where permitted in the Bidding Documents, any combination of them with a formal intent to enter into an agreement or under an existing agreement in the form of Joint Venture [JV], Consortium or Association. In the case of a Joint Venture, Consortium or Association:-
all parties to the Joint Venture, Consortium or Association shall sign the Bid and they shall be jointly and severally liable; and a Joint Venture, Consortium or Association shall nominate a representative who shall have the authority to conduct all business for and on behalf of any and all the parties of the Joint Venture, Consortium or Association during the Bidding process. In the event the Bid of Joint Venture, Consortium or Association is accepted, either they shall form a registered Joint Venture, Consortium or Association as company/firm or otherwise all the parties to Joint Venture, Consortium or Association shall sign the Agreement.
2. Contents of Bidding Document 2.2 Clarification 2.2.1 The Bidder shall be deemed to have of Bidding carefully examined the conditions, Document specifications, size, make and and Pre-Bid drawings, etc. of the Works and Conference Related Services to be provided. If any Bidder has any doubts as to the meaning of any portion of the conditions or of the specifications, drawings etc., it shall, before submitting the Bid, refer the same to the Procuring Entity and get clarifications. A Bidder requiring any clarification of the Bidding Document shall contact the Procuring Entity in writing or e-mail at the Procuring Entity's address indicated in the BDS.
The Procuring Entity will respond in (19 of 26) [CW-8492/2018] writing or e-mail to any request for clarification, within seven days provided that such request is received no later than twenty-one (21) days prior to the deadline for submission of Bids as specified in ITB Sub-Clause 4.2.1 [Deadline for Submission of Bids]. The clarification issued, including a description of the inquiry but without identifying its source shall also be placed on the State Public Procurement Portal and should the Procuring Entity deem it necessary to amend the Bidding Document as a result of a clarification, it shall do so following the procedure under ITB Clause 2.3 [Amendment of Budding Document] through an addendum which shall form part of the Bidding Document.
2.2.2 The Bidder or his authorized representative is invited to attend the Pre-Bid Conference, if provided for in the BDS. The purpose of the Pre-Bid Conference will be to clarify issues and to answer questions on any matter related to this procurement that may be raised at that stage. If required, a conducted site visit may be arranged by the Procuring Entity.
2.2.3 The Bidder is requested, to submit questions in writing, to reach the Procuring Entity not later than 7 Days before the date of Pre-Bid Conference.
5. Evaluation and Comparison of Bids.
5.2 Clarification 5.2.1 To assist in the examination, of Technical evaluation and comparison of the or Financial Technical or Financial Bids, the Bid Bids evaluation committee may, at its discretion, ask any Bidder for a clarification regarding its Bid. The committee's request for clarification and the response of the Bidder shall be in writing.
5.2.2 Any clarification submitted by a Bidder with regard to its Bid that is not in response to a request by the Bid evaluation committee shall not be considered.
Section-3 Evaluation and Qualification Criteria 2.0 Qualification Criteria (20 of 26) [CW-8492/2018] Bidders fulfilling the eligibility criteria, as given below shall be considered technically responsive.
1. Eligibility: XX XX XX
2. Pending Litigation: XX XX XX
3. Financial Requirement: XX XX XX
4. Experience:
Criteria Requirement Compliance Requirements Docume nts Single Joint Venture Submiss Entity ion/ All Each Lead Require Partners Partner Partner ments.
Combined
(i) Experience Must Must Not Not Form
Gener under meet meet applica applica Exp-1
al construction requir requireme ble ble
Constr contracts in the ement nt
uction role of
Experi contractor,
ence subcontractor,
or management
contractor for at
least the last 7
Years prior to
the Bid
submission
deadline
39. It would be further appropriate to quote the relevant extract of the Form EXP-1 filled by the petitioner-Company, which reads as follows:-
4.8.9 Form EXP-1 : General Construction Experience General Construction Experience S.N Starting Ending Years Contract Role of o. Month Year Month Year Identification and Bidder.
Name and Address of Procuring Entity Brief Description of the Works Executed by the Bidder.
11. 27.12.2010 31.03.2013 225 Four lanning of Sub Ahmedabad to Contract Godhra section of or NH-59 from Km 4.200 to Km 122.420 in the State of Gujarat on Design, Build, Finance, Operate and Transfer (DBFOT) Basis under NHPD (21 of 26) [CW-8492/2018] Phase-III PAN India Infrastructure Pvt.
Ltd., Mumbai,
Road Work
40. This court finds that the first and foremost question for consideration in the instant petition is in respect of the requirement of seven years experience prior to bid submission deadline. The project in question is for construction of Isarda Dam across Banas river for drinking water near village Banetha, District Tonk (Rajasthan). The procuring entity while issuing the tender document made it very clear that bidder should have the experience under construction contracts in the role of contractor, sub-contractor or management contractor for at least the last seven years prior to the bid submission deadline.
41. The petitioner-Company, in the instant case, is said to have entered into the agreement on 26.04.2010 in the construction work for four laning of Ahmedabad to Godhra Section of NH-59 in the State of Gujarat on DBFOT basis under NHPD Phase-III with Pan India Infrastructures Pvt. Ltd., Mumbai and the starting month/year of construction is given from 27.12.2010.
42. The experience has to be construed as the actual experience and the signing of an agreement on 26.04.2010 is of no significance as far as the experience part is concerned. The procuring entity-State Government was informed by the petitioner-Company, while filling Form-EXP-1 [General Construction Experience], that it has the experience w.e.f. 27.12.2010 to 31.03.2013 as sub-contractor. The petitioner- Company further filed agreement dated 26.04.2010 executed (22 of 26) [CW-8492/2018] between Pan India Infrastructures Pvt. Ltd. (Concessionaire's EPC) and Dilip Buildcon Pvt. Ltd. (petitioner-Company-Contractor). The said agreement was executed for development of road on Ahmedabad-Godhra Section of National Highway No.59 in the State of Gujarat. The agreement dated 26.04.2010 and commencement of work from 27.12.2010, has a widening gap of about eight months and as such the official respondents have not taken into account the experience of the petitioner-Company from the date of agreement.
43. This court finds that since there is a requirement of having experience and the same has to be the actual experience and by signing an agreement, the effective date of experience cannot be commenced. The experience is a mandatory condition required by the procuring entity and dilution of such condition can be detrimental to the interest of the procuring entity as the bidder will not fulfill the mandatory requirement of possessing experience. The criteria/eligibility fixed by the procuring entity while keeping in mind various aspects is required to be fulfilled by the bidder who wishes to participate in the tender process.
44. The submission of learned counsel for the petitioner- Company that there was a typographical error and the same should have been rectified on the request of the petitioner- Company, this court finds that information submitted by the petitioner-Company itself in the format clearly shows that experience of the petitioner-Company is in respect of four laning project started from work commenced from 27.12.2010 and as such it cannot be said that there was a typographical error on the (23 of 26) [CW-8492/2018] part of the petitioner-Company which required to be rectified on the request of the petitioner-Company.
45. This court finds that the petitioner-Company failed to meet the requirement of possessing seven years experience prior to the bid submission deadline and as such the respondents have not committed any illegality. The submission of learned counsel for the petitioner-Company that experience should relate back to the date of agreement between the Concessionaire and the petitioner- Contractor, is without any substance and the same cannot be accepted.
46. The plea that work of project can only commence after mobilizing resources from the date of agreement and as such the date of agreement becomes relevant for counting experience, this court finds that there may be situations where project may not commence immediately after any agreement is entered into between the parties, however, the same cannot be made basis for the purpose of taking benefit of counting experience. The procuring entity is in fact concerned with the requirement of having the actual experience and as such the submission of the learned counsel for the petitioner-Company, is without substance.
47. The submission of learned counsel for the petitioner- Company that the State would have been benefited by acceptance of technical bid of the petitioner-Company as it had offered Rs.50 Crores less than the bidder who has finally been awarded contract after the financial bid being opened, this court finds that once the petitioner-Company is not technically qualified, the petitioner- Company cannot be permitted to raise a plea of giving a better (24 of 26) [CW-8492/2018] option in terms of money. The petitioner-Company first has to qualify in the technical bid and opening of financial bid is only from and amongst the technically qualified bidders and whatever best financial bid was found by the procuring entity, after evaluating the financial bid, the said bidder has been awarded the contract and no fault can be found with the same.
48. The submission of learned counsel for the petitioner- Company that the respondents have acted arbitrarily, is without any substance. The respondents cannot be held responsible for violation of any right of the petitioner-Company. The official respondents were bound to follow the terms & conditions, as provided in the tender document for considering eligibility and requirements and the same are required to be strictly complied with.
49. The submission of learned counsel for the petitioner- Company that if there was an ambiguity with respect to experience, the petitioner-Company ought to have offered an opportunity to rectify the same, this court finds that tender document itself had provided a mechanism to resolve certain issues in pre-technical bid meeting. The petitioner-Company, if had any confusion or query with regard to its eligibility, the same could have been questioned and explanation could have been sought from the respondents. This court finds no ambiguity in the conditions of tender document and as such it cannot be pleaded that the petitioner-Company was prevented by the respondents to participate in a fair manner and they have been ousted in illegal manner.
(25 of 26) [CW-8492/2018]
50. The allegation of counsel for the petitioner-Company that appellate authorities have not considered the appeals of the petitioner-Company in fair manner, this court finds that both the authorities have specifically dealt with all the contentions raised by the petitioner-Company. The appellate authorities have considered the main issue as whether the petitioner-Company fulfills the qualification sought in the technical bid or not. The date of start of calculating the experience was taken from the Form-EXP-1, filed by the petitioner-Company and the starting point was 27.12.2010 till 06.12.2017 and from the same, it was borne out that the petitioner-Company had six years, eleven months and eleven days experience to its credit which was less than seven years, as sought by the official respondents. The appellate authorities have found that construction experience was one of the important parameters for deciding technical qualification and any material deviation, affecting responsiveness of the bidder, was not to be considered.
51. This court finds that both the appellate authorities have considered the issues raised before them in a proper and fair manner and no illegality as such is found in the impugned orders.
52. The judgments relied upon by learned counsel for the petitioner-Company do not deal with the situation, as has been obtaining in the present case.
53. This court does not find any error in the decision taken by the respondents in rejecting the technical bid of the petitioner- Company and further the orders passed by both the appellate authorities, upholding the action of the respondents, do not call (26 of 26) [CW-8492/2018] for any interference by this court.
54. The present petition being devoid of merit, accordingly stands dismissed.
(ASHOK KUMAR GAUR),J Solanki DS, PS Powered by TCPDF (www.tcpdf.org)