Chattisgarh High Court
M/S. S. Square Cargo Movers Pvt.Ltd vs South Eastern Coalfields Limited on 6 September, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 1702 of 2022
• M/s. S. Square Cargo Movers Pvt. Ltd. Having Office At 29/9,
Nehru Nagar (East), Bhilai, District Durg (Chhattisgarh)
Through its Director- Sanskar Agrawal S/o. Shri Rajesh Kumar
Agrawal, aged about 21 years, Having Address At House No.
C-86, VIP Estate, Opposite Ashoka Ratan, Shankar Nagar,
Raipur, District : Raipur, Chhattisgarh
---- Petitioner
Versus
1. South Eastern Coalfields Limited Through its Chairman-cum-
Managing Director, Having Office at SECL Bhawan, Seepat
Road, Bilaspur, District : Bilaspur, Chhattisgarh
2. General Manager (Contract Management Cell) / Tender
Inviting Authority, South Eastern Coalfields Ltd. Having Office
at SECL Bhawan, Seepat Road Bilaspur (Chhattisgarh).
3. Jalaram Transport through its Partner Shri Bharat Khanderia
Having Office at CMD Square, Link Road, Bilaspur (CG).
---- Respondents
For Petitioner : Mr. Shishir Dixit, Advocate
For Respondents No.1 & 2 : Mr. VR Tiwari, Sr. Advocate
assisted by Mr. Vinod Kumar
Deshmukh, Advocate
Order Reserved on 28.6.2022
Order Delivered on 06/09/2022
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DB: Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. Parth Prateem Sahu, Judge
CAV Order
Per Parth Prateem Sahu, J
1. Rejection of technical bid of petitioner company by respondent No.2 considering that petitioner company does not fulfil the 'work experience' criteria as prescribed under Clauses 6 & 7.2 of the Notice Inviting Tender (NIT), made the petitioner company to approach this Court by way of filing this writ petition, seeking following relief:-
"10.1. That, this Hon'ble Court be pleased to set aside the Technical Bid Evaluation Summary dated 28.3.2022 issued by Respondent No.4 (Annexure- P/4) whereby the petitioner has been declared to be disqualified in Technical Bid for not fulfilling the Work Experience criteria.
10.2. That, this Hon'ble Court be pleased to quash the tender proceedings from the stage of considering the price bids.
10.3. That, this Hon'ble Court be pleased to direct the respondents to reprocess the tender from the stage of price bid considering the petitioner to be a qualified bidder in Technical evaluation having proper work experience.
10.4. Any other relief which this Hon'ble Court may deem fit be granted."
2. Facts relevant for disposal of this writ petition are that respondent SECL issued NIT bearing No.SECL/ BSP/CMC/ RGH/e-Tender/491 dated 04.12.2021 for "Hiring of suitable capacity surface miner and allied equipment for mechanical 3 excavation/cutting of coal/coal measure strata & deployment of dozer on hiring basis of removal of ridges, left out coal / coal measure strata while working coal seam in the mine" at Baroud OCP, Raigarh Area, District Raigarh. Estimated value of the work is Rs.24,22,45,023.42, inclusive of GST, and period of completion of work is 730 days. Clause-6 of the NIT specified the criteria for eligibility of bidders. The bids were required to be submitted by the bidders in two separate envelopes by 15.12.2021. First envelope is to contain 'technical bid', whereas second envelope is to contain 'price bid'. As per Clause (6) of NIT, technical evaluation is to be made by the system. Pursuant to aforementioned NIT, the petitioner company and four others submitted their bids. Upon evaluation of technical bids submitted by tenderers, the Technical Bid Evaluation Committee sought legal opinion on the documents relating to work experience submitted by petitioner company and after due deliberation, arrived at a conclusion that petitioner did not fulfil eligibility criteria as provided in Clause 6 (A) & 7(2) of the NIT and accordingly declared petitioner company to be ineligible to participate in tender process.
3. Learned counsel for the petitioner would submit that the Technical Bid Evaluation Summary (Annexure P-4) of the petitioner company prepared by respondent No.2, is erroneous. Petitioner submitted all relevant documents in support of work experience of two similar nature of works 4 executed by M/s S.S. Cargo Movers Private Limited, Bhilai, District Durg (CG), a partnership firm, and M/s Godawari Deify SSCM JV, a joint venture firm, in which two Directors of petitioner company namely, Shri Shailesh Kumar Jaiswal and Shri Sukhdev Singh Sidhu were partners and having 60% share and therefore, 60% of work experience in M/s S.S. Cargo Movers and M/s Godawari Deify SSCM JV, was to be taken into consideration, which was in accordance with sub- clause (viii) under heading 'Technical Evaluation by System' under Clause-6 of the NIT. First similar nature of work was issued by the Project Officer, Lingaraj OCP MCL in favour of M/s S.S. Cargo Movers for the period 01.10.2020 to 30.9.2021 for Rs.19,47,52,327.43. Second work of similar nature was issued by the Project Officer, Lingaraj OCP MCL in favour of Godavari Deify SSCM JV for the period 16.10.2020 to 30.9.2021 of the work value of Rs.28,99,93,164.16. As per requirement of NIT, a bidder is required to have work experience of 50% of the tender value. The work experience submitted by petitioner company is more than the criteria fixed. He contended that as per technical bid evaluation summary dated 28.3.2022, technical bid of the petitioner company was rejected on extraneous considerations. Respondent No.2 had rejected technical bid of petitioner company considering that experience of partners of petitioner company is the experience of a partnership firm and not of a limited company. Said consideration of work experience submitted by the petitioner in technical bid evaluation 5 summary is contrary to the law laid down by Hon'ble Supreme Court in case of New Horizons Limited & another Vs. Union of India & ors, reported in (1995) 1 SCC 478.
He also contended that rejection of technical bid of petitioner is contrary to sub-clause (viii) of Clause-6 of the NIT which clearly provides that experience in proportion to actual share of bidder as a partner in a Joint Venture firm/ Partnership firm will be taken into consideration against eligibility. Similar documents of work experience submitted by petitioner company in other NIT issued by Kusmunda OCP Area of respondent No.1-SECL have been considered and technical bid of petitioner was opened. Terms and conditions of NIT issued by respondent No.2 and one issued by Kusmunda OCP Area under respondent No.1 were one and the same and therefore, rejection of technical bid of petitioner by respondent No.2 in NIT in question and accepted in another NIT on the basis of similar documents of work experience, is unjust and arbitrary.
He contended that in sub-clause (viii) of Clause-6 of NIT there is specific mention that value of experience is to be assessed in proportion to the actual share of bidder in any joint venture / partnership firm against eligibility. Respondent No.2 while preparing technical bid evaluation summary (Annexure P-4) had not considered the work experience of two Directors of petitioner company as partners in a joint venture / partnership firm to the extent of 60% and thereby 6 erred in evaluating work experience criteria of petitioner company. Respondent No.2 further erred in not calculating value of 60% towards work experience by Godawari Deify SSCM JV, a joint venture firm, in which S.S. Cargo Movers is the lead firm. Two Directors of the petitioner company were having 60% share in S.S. Cargo Movers, partnership firm.
4. Learned Senior Counsel for respondent Nos.1 & 2 opposed the submissions of learned counsel for petitioner and submitted that respondent No.2 had evaluated technical bid of petitioner company strictly in accordance with eligibility criteria prescribed in the NIT. Petitioner cannot be permitted to take benefit of mistake, if any, committed by the Area Level Tender Committee of respondent No.1 in any other tender proceedings. An illegality cannot be allowed to be perpetuated. Case law relied upon by the petitioner is on different facts because issue for consideration in that case was of 'non-consideration of technical/financial worth of Joint Venture constituents'. The Tender Committee upon evaluation of technical bid, in order to bring clarity, sought opinion from Legal Cell and after due deliberation came to the conclusion that petitioner does not meet the work experience criteria and therefore, it cannot be said that there is arbitrary exercise of powers by respondents. Rejection of technical bid of petitioner is supported by reasons and as such, judicial review will apply in restricted sense as to whether the reasons assigned are germane or irrelevant.
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5. Learned counsel for the petitioner submitted that the Tender Inviting Authority while preparing summary i.e. Technical Bid Evaluation Summary (TBOS) on the deliberation/ recommendation for work wherein the Tender Committee recommended not to open the bid of petitioner, had taken note of the judgment in case of New Horizons Ltd. (supra). The authority considering the legal opinion, held that the petitioner does not satisfy eligibility criteria based on work experience. In legal opinion the learned Senior Advocate misinterpreted the judgment in case of M/s New Horizons Ltd. (supra).
6. We have heard learned counsel for the parties and perused the record of writ petition.
7. Question involved in present case for consideration is whether Tender Committee while preparing Technical Bid Evaluation Summary has rightly considered the work experience of the petitioner company or not to satisfy Clause-6 of the NIT. Relevant portion of Clause-6 of the NIT, which deals with eligibility criteria, is quoted below for ready reference:-
"viii. In case the experience has been earned by the bidder as an individual or proprietor of a proprietorship firm or an entity registered as company under the Companies Act, then 100% value of the experience will be considered against eligibility. But if the experience has been earned by the bidder as a partner in a Joint Venture firm / 8 Partnership firm then the proportionate value of experience in proportion to the actual share of bidder in that Joint Venture firm / Partnership firm will be considered accordingly.
8. There is no dispute that work experience submitted by petitioner along with tender document was of similar nature of work. The Tender Committee while preparing technical bid evaluation summary of petitioner company has considered as under:-
"d. Role/Shares of Partners:-
(i) M/s Godawari Natural Resources Limited with participation share of 25% (Twenty Five Percent).
(ii) M/s Defy Infrastructure Limited with participation
share of 25% (Twenty Five Percent)
(iii) M/s SS Cargo Movers (A Partnership Firm) with Participation share of 50% (Fifty Percent).
Note:- In this particular case M/s SS Cargo Movers as a partnership firm, comprise 5 Nos of parnters vis-a-vis partnership shares as detailed below;-
a) Shri Shailesh Jaiswal - 30%
b) Shri Sukdev Singh Sidhu - 30%
c) Sidhjai Enterprises Pvt. Ltd. - 10%
d) Smt. Tanya Jaiswal - 15%
e) Smt. Simranjeet Kaur Sidhu - 15%
e. Experience submitted for getting benefit in consideration of Eligibility Criteria in the name and style of Firm :- 50% Participation share of Godawari Deify SSCM JV and then 9 60 Percent participation share of two partners namely Shri Shailesh Jaiswal and Shri Sukdev Singh Sidhu (as Directors of S Square Cargo Movers Private Limited)."
9. Value of work experience assessed by the Tender Committee, as per document uploaded in official website, as Rs.8,69,97,949.25/-, whereas the petitioner claimed valuation at Rs.14,49,96,528.08/-. Estimated value of subject NIT is mentioned as Rs.22,22,45,023.42/- (inclusive of GST). The Tender Committee did not consider work experience of two Directors of petitioner company with M/s SS Cargo Movers as its partners on the ground that M/s SS Cargo Movers, a partnership firm, was not taken-over by the petitioner company. There is yet another reason assigned by respondent for not considering experience of M/s SS Cargo Movers in the account of petitioner company that it is not in the name of bidder company M/s S. Square Cargo Movers, rather it is in the name of 'M/s S.S. Cargo Movers' which is a different firm.
10. In sub-clause (viii) of Clause-6 of the NIT under the heading 'Technical Evaluation by System' it is clearly mentioned that if experience is earned by a bidder as partner in Joint Venture firm or partnership firm, then the proportionate value of experience in proportion to the actual share of bidder in that joint venture firm/partnership firm will be considered against eligibility. Two Directors of petitioner company were partners in M/s SS Cargo Movers, which executed similar nature of 10 work, and thereafter these two Directors along with two new Directors have formed the petitioner company.
11. Case of the petitioner is that two Directors of petitioner company by name Shri Shailesh Kumar Jaiswal and Shri Sukdhev Singh Sidhu, were partners in M/s S.S. Cargo Movers. M/s S.S. Cargo Movers is also a constituent firm of M/s Godawari Deify SSCM, a joint venture. It is M/s SS Cargo Movers which was a constituent firm of aforementioned joint venture. It is not only the aforementioned two Directors of petitioner company were partners of M/s SS Cargo Movers but there were three other partners also. In writ petition there is no pleading with regard to present status of M/s SS Cargo Movers whether it is still in existence or not and whether above named two Directors of petitioner company have separated themselves from the partnership firm M/s SS Cargo Movers along with equipments and resources to the extent of their shares with the said firm. It is not the case of the petitioner that M/s SS Cargo Movers merged with petitioner company with its experience and credentials.
12. In judgment of New Horizons Pvt. Ltd. (supra) relied upon by learned counsel for petitioner, the Hon'ble Supreme Court has observed as to what would be consideration while evaluating the experience of the bidder, with company, joint venture and partnership firm, and held thus:-
"23......The terms and conditions of such a 11 document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute tile work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery arid equipment is outdated. Conversely lack of experience may be made good by improved technology arid better equipment....."
13. While considering the challenge to tender proceeding, it is only to be considered whether the 'decision making process' 12 suffers from any patent illegality or arbitrariness. The Hon'ble Supreme Court in the matter of Tata Cellular v. Union of India reported in (1994) 6 SCC 651 has laid down the grounds on which the Court can exercise power of judicial review and the same reads thus:-
"77. The duty of the Court is to confine itself to the question of legality. Its concern should be;-
• Whether a decision-making authority
exceeded its power?
• Committed an error law;
• committed a breach of the rules of natural justice.
• reached a decision which no reasonable tribunal would have reached; or • abused its power.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.
(ii) Irrationality, namely, Wednsebury
unreasonableness.
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(iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. vs. Secretary of State for the Home Department, ex Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely,the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention".
14. The Tender Committee Authority while deliberating upon the Technical Bid Evaluation Summary, considered legal opinion as also other materials for consideration, like there is no merger of M/s SS Cargo Movers, a partnership firm in which two of the Directors of petitioner company were partners.
15. In case of M/s New Horizons Pvt. Ltd. (supra) relied upon by learned counsel for petitioner, the Hon'ble Supreme Court has observed that while taking into consideration past experience, present state of affairs, equipments and resources at the disposal of the company are also to be considered to evaluate capacity of bidder company to execute the work. It is also observed by Hon'ble Supreme Court that for judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. From the above 14 observation of Hon'ble Supreme Court in the case of M/s New Horizons Pvt. Ltd. (supra), it is clear that not only past experience is to be added by the employer but credentials along with present set of equipment and resources at the disposal of company is also to be added.
16. In case at hand, the petitioner has not made any specific pleading regarding present state of equipments or resources available with petitioner company, more so when two of the Directors of petitioner company were stated to be partners in M/s SS Cargo Movers. Even the current status of partnership firm 'M/s SS Cargo Movers' has not been specifically pleaded. The tender floated by the respondent Company is commercial in nature. The work under the tender document is for extraction/ breaking of coal in slices/layers to lump size (100 mm) without resorting to drilling and blasting at Baroud OCM, Raigarh Area with minimum quantity of 7483 cubic meter per day. As it is commercial deal with per day specific target for which respondents are engaging person/firm/company and therefore, it is for the respondent employer to assess capacity of tenderer to execute said work and being so, experience clause under the eligibility criteria of tender document is having significance. Respondents while considering technical bid submitted by the petitioner company, particularly eligibility criteria of work experience, has made deliberations, evaluated the documents submitted by petitioner company and only thereafter reached to the conclusion that petitioner does not 15 fulfil eligibility criteria.
17. In case of Central Coalfields Ltd. vs. SLL-SML (Joint Venture Consortium) reported in (2016) 8 SCC 622 while considering the scope of interference in tender matters has held thus:-
"47....... Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or malafide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached....."
18. If the facts of present case are considered in the light of aforementioned decisions of Hon'ble Supreme Court, we do not find any fault in decision making process undertaken by the respondents. It is for the bidder to satisfy that it fulfils all the eligibility criteria mentioned in the tender document, which the petitioner failed to do.
19. In the result, the petition being sans merit is liable to be and is hereby dismissed. No order as to costs.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
roshan/