Karnataka High Court
Ferro Concrete Construction (India) ... vs Tungabhadra Board on 6 July, 2023
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 100625 OF 2023 (GM-TEN)
BETWEEN:
KM
SOMASHEKAR FERRO CONCRETE CONSTRUCTION (INDIA) PVT. LTD.
A COMPANY INCORPORATED UNDER THE PROVISIONS
Digitally signed by K
M SOMASHEKAR OF THE COMPANIES ACT,1956.
Location: DHARWAD
Date: 2023.07.22 REGISTERED OFFICE AT,
13:10:23 -0700
5-A INDUSTRIAL AREA, BHAGIRATHPURA,
INDORE (MADHYA PRADESH) 452 003.
REPRESENTED BY ITS MANAGING DIRECTOR
MR.ANUPAM BIDASARIA
S/O DR.MAHAVIR BIDASARIA.
...PETITIONER
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND:
1. TUNGABHADRA BOARD
REPRESENTED BY ITS CHAIRMAN
TUNGABHADRA DAM, HOSPET,
VIJAYANAGARA DISTRICT, KARNATAKA.
2. SUPERINTENDING ENGINEER
IRRIGATION BRANCH, TUNGABHADRA BOARD
TB DAM, HOSPET, VIJAYANAGARA DISTRICT
KARNATAKA.
2
3. RAGHAVA CONSTRUCTION INDIA PVT.LTD
RAGHAVA PRIDE, H.NO.8-2-603/1/27 AND 28
ROAD NO.10, BANJARA HILLS
HYDERABAD-500034.
...RESPONDENTS
(BY SRI.MAHESH WODEYAR, ADVOCATE FOR R1 & R2;
SRI.GANESH RAIBAGI, ADVOCATE FOR R3 (VK FILED))
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO 1. ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, DIRECTION, OR
ORDER SETTING ASIDE THE ORDER OF THE RESPONDENT NO.2
REJECTING THE PETITIONERS TECHNICAL BID IN RESPECT OF THE
TENDER NO.92/2022-23 AND 93/2022-23 (2ND CALL) ISSUED BY
THE RESPONDENT NO.2 VIDE ANNEXURE-L AND M AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 22.06.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed assailing the rejection of technical bid of petitioner which relates to upstream and downstream face of Tungabhadra Dam i.e., tender Nos.92/2022-23 and 93/2022-23.
2. The petitioner claims to be a premium engineering and construction company which participates in major 3 irrigation and hydro electric project, tunnels, underwater foundation works, drilling, grouting and anchoring works, industrial buildings, housing developments in the fields such as Geotechnical and hydro geological studies, Bore hole drilling and laboratory soil testing, design of foundation and soil improvement techniques and ground improvement, construction of new Dams, rehabilitation of old masonary and concrete dams, strengthening of foundation by drilling, grouting and anchoring including drilling and grouting through drainage gallery of dams, Diaphragm walls, anchoring and shotcreting, construction management, road projects, bridges construction and industrial and residential complexes and etc.,
3. The petitioner also claims that it has successfully bid and has completed several projects for the Government, across the country and respective State Governments have awarded the work of rehabilitation of left flank of the dam managed by Karnataka Neeravari Nigam Ltd (KNNL). 4
4. The respondents issued an Advertisement inviting proposal from reputed bidders for providing dam body grouting, PICC pointing to upstream side of piers, bay and non spillway portion, treatment to contraction joints and reaming of porous and drainage holes of drainage gallery of Tungabhadra Dam right flank bearing Tender Notice IFB Nos.92/2022-23 (2nd call) and 93/2022-23 (2nd call). The bidders were invited to register and participate in the tender process through the mode of online via e-procurement portal. The respondents also issued a tender schedule enumerating the bidding process and criteria for evaluation, scope of work and other specifications for the said tender.
5. The petitioner claims that it has uploaded the required documents to demonstrate its eligibility/pre- qualification to participate in the said bidding process. Prior to completion of evaluation of the bidders technical bids, the petitioner has alleged that it was informed by its sources that one of the work certificate submitted by petitioner was not 5 being considered and a view was expressed that details of the certificate are not legible. The petitioner has claimed that it was immediately brought to the notice of the respondents that petitioner recently was awarded a similar work of rehabilitation of same dam for the left flank which is under the control of Government of Karnataka. Petitioner's technical bid was rejected on 17.01.2023 by the respondents. The petitioner has approached this Court alleging bias and arbitrariness on the part of respondents in arbitrarily rejecting the technical bid of the petitioner without assigning any reasons. Alleging malafides, petitioner claims that respondents have failed to adopt impartial and fair process to evaluate the bids and the entire bidding process is vitiated by favoritism, bias and malafides.
6. The captioned writ petition is filed by raising a specific contention that petitioner has submitted its bid for the subject tender in the prescribed forms and all requisite records to demonstrate its eligibility/prequalification to participate in 6 the said bidding process is uploaded online along with its tender application. On these set of grounds, captioned petition is filed seeking writ of certiorari to set aside the order of respondent No.2 rejecting the petitioner's technical bid.
7. On receipt of notice, respondent No.1-Board and respondent No.2 filed statement of objections and the contentions raised in the writ petition are strongly contested by respondent Nos.1 and 2. Countering the allegations made in the writ petition, respondent Nos.1 and 2 have contended that the committee in-charge of tender has verified the tender evaluation report submitted by the petitioner and has found that the description in item of document submitted by the petitioner is not matching with the description of item prescribed in the tender documents. The particulars are furnished at para 14 of the statement of objections. The respondent Nos.1 and 2 have further claimed that having found variance in description of items, the committee of Tungabhadra Dam Board was justified in rejecting the bid of 7 the petitioner and therefore, decided to accept the qualified single tender of respondent No.3 and consequently, permitted the Superintending Engineer, IB to open the Commercial bids and issue work order on 09.01.2023. The respondent Nos.1 and 2 further claimed that on approval by the Committee, the agency was intimated through online and the letter of acceptance-cum-work order is already issued in favour of respondent No.3.
8. The respondent Nos.1 and 2 further claimed that tenders were finalized by strictly adhering to the tender conditions and the documents uploaded by the respective bidders are meticulously examined in a transparent manner and having found that the documents annexed by the petitioner following short of qualification criteria stipulated in the tender documents, the respondent No.2 has rightly rejected the technical bid. The respondent Nos.1 and 2 further contended that allegations made in the captioned writ 8 petition is not substantiated by the petitioner and therefore, requests this Court to dismiss the writ petition.
9. Respondent No.3 has also filed statement of objections and has stoutly denied the entire allegations made by the petitioner in the writ petition. The respondent No.3 claimed that it has uploaded all requisite documents to demonstrate its eligibility for participating in the bid process including experience certificates. The respondent No.3 claimed that the concerned Evaluation Committee has examined the previous experience letters/credentials of the bidders and the same are verified and confirmed by the Department from concerned authorities before issuing Letter of Acceptance (LOAs). Following the said letter and in compliance of the same, respondent No.3 claimed that it has submitted bank guarantee bond dated 19.01.2023 for a sum of Rs.30,24,200/-. The concerned respondent-authorities have also issued a letter to the respondent No.3 herein approving the bid submitted by respondent No.3 and 9 respondent No.3 was requested to approach the Executive Engineer and proceed with the execution of the said work in accordance with the contract documents. The respondent No.3 claimed that petitioner's tender was disqualified as it did not meet the prequalification criteria and therefore, has taken a contention that allegations of arbitrariness is not substantiated by the petitioner. The respondent No.3 has further alleged that petitioner has hopelessly failed to substantiate any of its allegations and on the contrary, respondent No.3 claimed that petitioner has not come to Court with clean hands and hence, prayed for dismissal of the writ petition.
10. Heard learned counsel appearing for the petitioner, learned counsel appearing for respondent Nos.1 and 2 and learned Senior Counsel appearing for respondent No.3.
11. Tungabhadra Dam is mainly divided in two parts. The right flank of the Dam is now the subject matter of the 10 captioned writ petition. The right flank of the Dam consists of respondent No.1-Board which is constituted by the President of India in exercise of power vested under sub-Section (4) of Section 66 of the Andhra Pradesh Act, 1953. The Tungabhadra Dam is an inter se project of Andhra Pradesh, Karnataka and Telangana States. The Board consists of Chairman appointed by the Government of India and four members representing Government of India, Government of Karnataka, Government of Andhra Pradesh and Government of Telangana. From all the States, the Engineer-in-chief (Irrigation) represents the Board.
12. The left flank which is monitored and controlled by the Karnataka Neeravari Nigam Ltd. through its Engineer has floated a tender for execution of left flank. Interestingly, the present petitioner participated in the bid for improvement of Tungabhadra Dam left flank. The petitioner's bid was accepted and petitioner's construction methodology submitted along with tender application was accepted by the Executive 11 Engineer of the Karnataka Neeravari Nigam Limited. The maintenance of left flank, the tender amount inclusive of GST is around Rs.34,95,12,359/-. The relevance of awarding maintenance contract to the petitioner will be discussed later.
13. The petitioner-Company is found to be ineligible insofar as item Nos.1 and 4 for tender No.92 and item No.4 in tender No.93. The dispute in the present case on hand is only in regard to rejection of the petitioner's technical bid on the ground that it is found to be not eligible insofar as item Nos.1 and 4 in tender No.92 and item No.4 in tender No.93.
14. The qualification criteria for tender No.92 and tender No.93 is as under:
QUALIFICATION CRITERIA FOR OPENING OF PRICE BID - TENDER No.92/2022 (TENDER ID-546007):
To qualify for the award of the contract each bidder in its name should have, good experience in execution as original agency in similar works of Dam Safety Works i.e Construction or rehabilitation of Dam involving all ingredients viz Construction/ major repair of Masonry/ Concrete Dams/Barrages including upstream face pointing / drilling / grouting / Reaming of Porous and Drainage Holes / Treatment 12 to Contraction Joints in State and Central Government or undertaking, during the last ten years specified i.e., the years 2012- 13 to 2021-22 financial years updated to 2022-23 (i.e., they should be immediately preceding the financial year in which tenders are invited), satisfying the qualification shown under para "Bid Capacity", only are eligible to tender.
a) Satisfactorily completed as a prime contractor similar works of Dam Safety Works i.e. Construction or rehabilitation of Dam involving all ingredients viz Construction/ major repair of Masonry/ Concrete Dams/Barrages including upstream face pointing/ drilling/ grouting/ Reaming of Porous and Drainage Holes / Treatment to Contraction Joints value not less than Rs.7,20,37,795.50/- in any one year.
b) Executed in any one year, the following minimum set of quantity of works in last ten years i.e., from 2012-13 to 2021-22.
1. Racking, cleaning and pointing on upstream face of Masonry joints with 4351.90 UV resistant, anti-shrink and high Sqm strength materials like cements using crystalline technology (CT) Polymer/ Equivalent cementitious materials
2. Drilling of inclined / vertical 2855.50 holes in masonry/ concrete/ Hard Rmt rock body
3. Grouting 428.25 MT
4. Reaming of porous drain holes 1311.24 Rmt QUALIFICATION CRITERIA FOR OPENING OF PRICE BID - TENDER No.93/2022 (TENDER ID-574263): 13
To qualify for the award of the contract each bidder in its name should have, good experience in execution as original agency in similar works of Dam Safety Works like Construction or rehabilitation of Dam involving all ingredients viz Construction/ major repair of Masonry/ Concrete Dams/Barrages including upstream face pointing/ drilling/ curtain grouting in State and Central Government or undertaking, during the last ten years specified i.e., the years 2012-13 to 2021-22 financial years updated to 2022-23 (i.e., they should be immediately preceding the financial year in which tenders are invited), satisfying the qualification shown under para "Bid Capacity", only are eligible to tender.
a) Satisfactorily completed as a prime contractor similar works of Dam Safety Works like Construction or rehabilitation of dam involving all ingredients viz.
Construction/ major repair of Masonry/ Concrete Dams/Barrages including upstream face pointing/drilling/ Curtain grouting value not less than Rs.5,90,77,647/- in any one year.
b) Executed in any one year, the following minimum set of quantity of works in last ten years i.e., from 2012-13 to 2021-22.
1. Providing Pointing to stone masonry 8518.63 Sqm
2. Drilling of inclined / Vertical holes in 4138.75 Concrete/ Hard Rock Body/Hard Rmt Foundation Rock
3. Curtain Grouting 620.81 MT
4. Cleaning concrete / masonry / 8518.63 rock surface for guniting / Sqm shortcreting by sand blasting * The bidder should upload the minimum set of quantities statement with countersigned certificates of specific 14 financial year of last Ten years for consideration. (Mandatory).
c(1). The tenderer should give undertaking declaration with sufficient proof of purchase of equipment. The declaration should be on a non-judicial stamp paper stating that "I, Sri/Ms/Smt...................................... do hereby solemnly affirm and declare that I/we own/lease the following equipment for using on the subject work and also declare that I/We will abide by any action such as dis-qualification or termination of contract or blacklisting or any action deem fit, if the department detects at any stage that I/we do not possess the equipment listed below". (Mandatory) c(2). Availability of key personnel with adequate experience as required should be indicated based on the requirement for the work to be executed."
15. The petitioner has placed on record its experience for having executed the projects relating to repair and maintenance of Dams and has also furnished details notifying the requirements as per tender called by the respondent No.1- Board and by KNNL which manages and controls left flank of Tungabhadra Dam. The petitioner-Company has also placed on record the works done with other project relating to other Dams. These comparative charts are placed on record along 15 with written submissions dated 19.04.2023. It would be useful for this Court to cull out two charts:
Experience of Requirement Requirement Remarks having executed as per tender as per Tender minimum called by SE called by EE quantities TB Board for KNNL for treatment of treatment of Right Side of Left side of TB TB Dam for Dam NIT 92/2022-
23 Item Racking, cleaning 4351.90 Sqm 9750 Sqm Petitioner has and pointing on executed 26800 upstream face of Sqm of pointing Masonry joints work on with UV resistant, Upstream face in anti-shrink and 2016-17 in KRS high strength Dam. materials like cements using crystalline technology (CT)/ Polymer/ Equivalent cementitious materials Drilling of inclined 2855.50 Rmt 5368 Rm Petitioner has / vertical holes in executed 27061 masonry / RM of drilling concrete / Hard work on in 2018- rock body 19 in KRS Dam Grouting 428.25 MT 805 MT Petitioner has executed 1148 MT of grouting work on in 2018- 19 in KRS Dam Reaming of Porus 1311.24 Rmt 1023 RM Petitioner has Drain executed 1945.75 RM in 16 2019-20 in Almatti Dam and 1571.24 RM is Indirasagar Dam Experience of Requirement Qty Remarks having as per tender executed called by SE TB minimum Board for quantities treatment of Right Side of TB Dam for NIT 93/2022- 23 Item Providing 8518.63 Sqm 9750 Sqm Petitioner has Pointing to stone executed 26800 masonry Sqm of pointing work on stone masonry face in 2016-17 in KRS Dam. Drilling of 4138.75 Rm 5368 Rm Petitioner has inclined Vertical executed 27061 holes in RM of drilling Concrete/ Hard work on in 2018- Rock Body / 19 in KRS Dam Hard Foundation Rock Curtain Grouting 620.81 MT 805 MT Petitioner has executed 1148 MT of grouting work on in 2018- 19 in KRS Dam Cleaning 8518.63 Sqm 9933.99 Sqm Petitioner has concrete/ executed work of masonry / rock cleaning for surface for shotcrete guniting / 9933.99 Sqm in shortcreting by 2018-19 in sand blasting Naryanpura Dam 17
16. The conditions in regard to qualification criteria for opening of price bid is also indicated in the bid document which is placed on record vide Annexure-E.
17. The petitioner-company is found to be ineligible on the ground that the nature of work done does not relate to racking, cleaning and pointing on upstream face. The said findings of the scrutiny committee appears to be contrary to the documents placed by the petitioner which is evident from Annexure-Q. The nature of work done by the petitioner-
company satisfy the criteria prescribed by the respondents. Though pointing works is indicated in the work done certificate, the nature of work in fact relates to the tender work. The petitioner, as per Annexure-Q, has furnished the nature of work done and the said work relates to rehabilitation and improvement of 100 years old Krishnaraja Sagar Dam. Therefore, petitioner-company has undertaken projects in maintenance and treatment of upstream face and this work is done by way of pointing work. Therefore, an explanation was 18 offered by the petitioner-company by way of a communication dated 16.01.2023 vide Annexure-J and an explanation was offered to the defect pointed out by the authority. This letter is in fact submitted prior to evaluation dated 17.01.2023.
18. The second ground to reject the tender of petitioner is on the ground that the total value of work done is found to be less than Rs.7.23 Crores per year. The respondent- authorities have referred to the work done by the petitioner- company for the year 2021-22 which is found to be 58.01 lakhs and therefore, the authorities have come to conclusion that requirement is not fulfilled. The qualification criteria which is reproduced supra indicates that the contractor should have done a similar work pertaining to dam safety and the requirement is that said contractual work/project should not be less than Rs.7,20,37,796/- Crores in any one financial year. Except 2021-22, the petitioner-company has undertaken projects for the last preceding 10 years and in all the preceding years, the estimated value of projects are found to 19 be much higher than the prescribed criteria of Rs.7,20,37,796/-. For the year 2016-17, the estimated value is found to be Rs.49,82,32,000/-. The details of total value of work done for similar works executed by petitioner-company for 10 financial years reads as under:
Sl. Financial Year Value in Rs. No 1. 2012-2013 0.00 2. 2013-2014 0.00 3. 2014-2015 0.00 4. 2015-2016 0.00 5. 2016-2017 Rs.49,82,32,000/- 6. 2017-2018 Rs.26,52,07,000/- 7. 2018-2019 Rs.44,16,69,000/- 8. 2019-2020 Rs.14,25,45,000/- 9. 2020-2021 0.00 10. 2021-2022 Rs.58,01,000/-
19. The work certificate enclosed in statement-I clearly reveals that atleast in 4 financial years, the estimation of similar projects executed by petitioner-company is more than Rs.14 crores. Therefore, authorities could not have rejected the technical bid by selectively picking the project for the year 2021-22, which is found to be 58.01 lakhs.
20
20. The petitioner-company is also found to be ineligible in respect of item No.4 of tender No.92 which pertains to 'reaming of porous drain holes' and the required minimum quantity is 1311.24 RMT. In the statement of objections, the quantity assessed by the respondent- authorities is 699.19 RMT. The petitioner-company has no where quoted this figure for the said work. On the contrary, the Statement-III enclosed along with tender application by the petitioner-company, the quantity executed by petitioner- company is found to be much above the quantity indicated in the tender notification which is 1311.24 RMT. For 2016-17, the quantity executed is found to be 2769.01 RMT, while for 2019-20, it is found to be 1946.75 RMT and for 2021-22, it is found to be 1571.24 RMT.
21. In entire statement of objections, while arguing, learned Senior Counsel appearing for respondent No.3 and counsel appearing for respondent No.1-Board were not able to substantiate as to from where they have picked up the figure 21 699.19 RMT. This figure is not quoted by the petitioner- company.
22. One more disturbing trend that emerges from the records is that respondent No.1-Board on evaluation, while rejecting petitioner's technical bid has arrived at a conclusion that the requirements are not fulfilled by the petitioner- company and these remarks are assigned on the basis of separate statement which is appended with. These statements based on which these remarks are assigned by the concerned authorities of respondent No.1-Board are not produced before this Court.
23. It is also forthcoming from the records that respondent No.1-Board while assessing the technical eligibility of petitioner-company has placed reliance on an evaluation done on 30.11.2022, while fresh tender notification for tender No.92 was issued on 14.12.2022, while the petitioner- company has submitted its application on 02.01.2023. 22
24. Now coming to tender notification No.93/2022 which deals with down stream project, the authorities have come to conclusion that petitioner has failed to fulfill the required minimum quantity of item No.4. The petitioner- company is found to be ineligible on the ground that the nature of work as indicated in the accompanying document does not relate to the work done at item No.4 in tender No.93. Item No.4 relates to cleaning concrete/masonry/rock surface for guniting/ shotcreting by sand blasting, while the project executed by the petitioner relates to 'pneumatic shotcrete equipment'.
25. Let us now examine the projects implemented by respondent No.3 and its eligibility. The petitioner-company has placed on record the nature of projects implemented by the petitioner-company and respondent No.3. A comparative chart is produced and the same is reproduced as under: 23
Tender No.92/2021-Upstream Face of Right Flank of TB Dam S. Qualification Name of Work Description of Name of Work Description Remarks No Requirement (Ref in Petitioner's Item in in Respondent of Item in pg.9) Certificate (Ref Petitioner's No.3's Respondent pg.11) Certificate certificates (Ref No.3's (Ref pg.12) pg.13) Certificate (Ref pg.15-
16)
1. Racking, cleaning Rehabilitation & Pointing Work NSP-APWSIP- Epoxy mortar The only reason and pointing on Improvements to (26800 Sqmt) Rehabilitation pointing to given by upstream face of 100 year old and masonry walls Respondent masonry joints with Krishnarajasagar Providing & Modernization (6060 Sqmt) No.1 and 2 to UV resistant, anti- a Dam under pointing on from KM.0.000 to reject the shrink and high DRIP by upstream face KM 29.291 of Epoxy mortar Petitioner's bid strength materials conducting of Masanry Nagarjuna pointing to is that the like cements using detailed dam with UV Sagar Lal masonry walls description of crystalline investigations resistant and Bahadur Canal, (34282 Sqmt) the item technology carrying out anti-shrink A.P., India, mentioned in (CT)/Polymer/Equiv treatment to materials like Package the documents alent cementitious upstream face cements using No.LC.NLG-1 submitted by materials (4351.90 by pointing crystalline Petitioner do Sqmt) with UV technology not match the resistant and (CT), Poly description in anti shrink Ironite Ceramic the tender materials like Cementitious document and cements using (PICC) or that the same is crystalline equivalent not legible.
technology (ct) cementitious
or Poly Ironite materials It is submitted
Ceramic (where required) that per the
Cementatious conforming to evaluation of
Materials BIS/EN-15043, the same
Class R4(2014) documents by
standard for the Evaluation
masonry joint Committee on
filling to a depth 30.11.2022, the
of 5 cm Including Petitioner was
preparing of 'T' found to satisfy
joint of masonry this
by removing requirement.
existing loose Moreover, the
portion of stone Certificate and
masonry by Final Bill
breaking (using submitted by
manual/mechani Petitioners
cal means) would show that
removing the
existing requirements
embedded were duly
M.S.bar, racking fulfilled.
out the
masonry joints Further, the
to required same standard
depth, cleaning has not been
with special applied to
chemicals and Respondent
air water jet No.3 certificate
24
under pressure which does not
for removing refer to any UV
algae/fungi, Resistant or
applying bond Cementitious
coat before material but has
repair material nonetheless
application and been found to
top coat after qualify the
finishing, requirement.
complete as per
specification Lastly, the
including cost of Respondent
all materials, No.3 has been
machinery, found qualified
labour, despite relying
scaffolding, hire on an
charges of experience
cranes, insurance certificate for a
charges canal which
transportation clearly does not
with all leads and have an
lifts and any upstream or
other incidental downstream
charges as face.
directed by the
Engineer-in-
charge.
Tender No.93/2021-Downstream Face of Right Flank of TB Dam S. Qualification Name of Work Description of Name of Work Description Remarks No Requirement in Petitioner's Item in in Respondent of Item in (Ref pg.10) Certificate Petitioner's No.3's Respondent (Ref pg.17) Certificate certificates No.3's (Ref pg.17) (Ref pg.13) Certificate (Ref pg.16)
4. Cleaning Treatment of High Abrasion NSP-APWSIP- Cleaning of Respondent concrete/masonry / second stage Resistant Slope Rehabilitation Gates / No.1 and 2 have rock surface for honeycombed Protection work and Masonry walls/ disqualified the guniting / concrete and by application of Modernization Roof slab / by Petitioner for shortcreting by sand honeycombed special materials from KM.0.000 to Sand this item on the blasting pier regions applied by KM 29.291 of Blasting ground that the leaked pneumatic Nagarjuna (43398 Certificate relied construction Shotcrete Sagar Lal Sqmt) upon by joints spillway Equipment Bahadur Canal, Petitioner does piers and bucket (9485 Sqmt) A.P., India, not satisfy the portion for vent Package requirement.
nos.1 to 25 main No.LC.NLG-1
spillway and A1 It is submitted
to A5 of that the
additional Petitioner has
spillway of clearly
Narayanapur completed the
dam (package-II) said work and
has been
disqualified due
to a
25
hypertechnical
approach being
adopted.
Moreover, if this
is the standard
to be applied, it
is submitted
that even
Respondent
No.3's
certificate does
not satisfy the
requirement of
this item.
26. Having taken cognizance of these significant details culled out supra, this Court has to examine as to whether tender process is found to be malafide and unfair which has ultimately resulted in violation of principle of reasonability and therefore, it becomes absolutely necessary for interference at the hands of this Court. This Court also needs to examine whether the decision of respondent Nos.1 and 2 is perverse and not merely faulty, incorrect or erroneous. This Court has to also examine whether the tender process in the present case on hand depicts as an extreme case which would warrant judicial review at the hands of this Court.
27. Referring to the above significant details, the following are my conclusions:26
1) The material placed on record clearly demonstrate that petitioner-company has a good experience in execution of similar works such as Dam safety works i.e., construction and rehabilitation of Dam involving all ingredients viz., construction/ major repair of masonary/ concrete dams/ Barrages including upstream face pointing/ drilling/ grouting/ reaming of porous and drainage holes/ treatment of contraction joints. The documents also indicate that petitioner-company has satisfactorily completed Dam safety works.
2) While respondent No.3 has implemented projects relating to maintenance of water canals and not dams. The description of work done by respondent No.3 which is evident from its certificates also indicates that it has undertaken projects relating to cleaning of gates, masonry walls/ roof slab by sand blasting. All these projects relate to maintenance of canals namely Nagarjuna Sagar Lalbahadur Canal. It is also worth to note that technical expert who was present before 27 the Court has admitted that the work undertaken by respondent No.3 relates to canals and not dams.
3) The entire process of scrutiny done by respondent Nos.1 and 2 is also found to be tainted with arbitrariness. The document furnished by the petitioner-company are not properly scrutinized while petitioner-company is found to be eligible in terms of work certificate enclosed along with the tender application. As indicated supra, the authorities have proceeded to disqualify on the ground that petitioner-company does not fulfill the prescribed criteria.
4) While petitioner was required to furnish the details of works done in preceding 10 financial years and the requirement was only that in any one of the financial year, value of the estimated work should not be less than Rs.7,20,37,796/-, the petitioner-company is found to have done work not less than Rs.7 Crores on atleast 4 occasions which is indicated supra. The authorities with a malafide 28 intent have quoted lowest value of the project done by the petitioner for the year 2021-22 which is Rs.58 lakhs. While in the preceding years, atleast on 4 occasions, the estimated value of the project is in fact found to be more than Rs.14 Crores.
5) The quantity in item No.4 in tender No.92 'reaming of porous drain holes', requires minimum quantity of 1311.24 RMT. The authorities have quoted 699.19 RMT, while petitioner's documents no where has quoted this figure. The respondents have failed to offer an explanation from where they have quoted this figure. Be that as it may, the petitioner has done the work of reaming of porous drain holes and atleast on two occasions is found to have done the above said work for quantity much above than the prescribed quantity.
6) One more serious infraction which is found in evaluating the technical bid is that petitioner-company had written a letter on 16.01.2023 to the authority explaining the 29 alleged defect. This letter is in fact submitted before evaluation which is done on 17.01.2023. The explanation is not taken into consideration while rejecting the bid.
7) The work done certificate enclosed by the petitioner-
company is arbitrarily rejected by not properly evaluating the same. Though the executed project is referred to as pointing work, at column No.1, the petitioner has elaborately indicated that it has undertaken project of rehabilitation and improvement of 100 years old Krishnaraja Sagara Dam. By conducting detailed investigation, carrying out treatment to upstream face by pointing with UV resistant and anti-shrink materials like cements using crystalline technology (ct) or poly ironite ceramic cementitious (picc) or equivalent materials (where required) conforming to bis/en-1504-3, class r4(2014) standard, steel fiber reinforced shotcrete above in view of severe splashing/impact of water, extraction of cores, videography of bore holes and water loss testing as directed, dam body grouting (where ever required) to arrest the 30 seepage and to improve the structural strength of dam. Therefore, the authorities have selectively picked up the nature of work indicated in column-IV which is referred as pointing work without taking cognizance of the details furnished in column-I which in fact relates to projects relating to maintenance of dam.
8) If application for tender No.92 was furnished by the petitioner-company on 02.01.2023, the scrutiny of petitioner's application based on evaluation report dated 30.11.2022 also demonstrates arbitrariness and malafides and therefore, rejection of technical bid based on erroneous reasons is liable to be set aside by this Court.
9) One more significant detail which is found to be compelling and this Court is bound to take cognizance is that petitioner-company is already awarded the maintenance of left flank of the same dam. If petitioner-company is eligible and competent and if contract is already awarded for maintenance 31 of Tungabhadra Dam left flank and if the document annexed along with the application after due scrutiny fulfills the criteria, it is quite difficult to accept the evaluation done by the technical bid of respondent No.1-Board insofar as right flank of same dam is concerned. The petitioner-company has commenced with the project. The Chief Engineer of KNNL has awarded the tender insofar as relating to left flank of the same dam and is also one of the official of the committee of right flank. This relevant aspect would also create a doubt in the manner in which tender evaluation and scrutiny is done by the respondent No.1-Board.
28. The Hon'ble Apex Court in the case of New Horizons Limited and Another vs. Union of India and Others1, held that in the matter of entering into a contract, the State does not stand on the same footing as a private person who is free to enter into a contract with any person he likes. The State, in exercise of its various functions, is 1 (1995) 1 SCC 478 32 governed by the mandate of Article 14 of the Constitution of India which excludes arbitrariness in State action and requires the State to act fairly and reasonably. The significant details which are culled out in the preceding paragraphs by this Court clearly demonstrate that the action of respondent Nos.1 and 2 in rejecting the technical bid of the petitioner-company and accepting the technical bid of respondent No.3 is totally arbitrary and unreasonable. The subject matter of tender which is of maintenance and rehabilitation of dam involves huge expenditure from the State exchequer and therefore, the State's action in exercising discretion in the matter of selection of person for awarding of contract has to be exercised keeping in view the public interest involved in such selection. Therefore, the rejection of technical bid of petitioner is not made lawfully.
29. The process of evaluation of technical bid submitted by the petitioner and respondent No.3 and other contenders is not properly evaluated by the respondent No.1-Board. 33 Therefore, the process of evaluation of bids being a serious exercise, the Tender Inviting Committee must undertake due diligence and efficiency. On examining the records, I am more than satisfied that respondent No.1-Board has acted mindlessly, mechanically and in complete ignorance of the requisite documents furnished by the petitioner-company along with tender application. The manner in which respondent Nos.1 and 2 have dealt with the petitioner's bid demonstrates an utterly bias and arbitrariness and also favoritism.
30. The work done certificates submitted by the petitioner-company are either conveniently ignored or figures quoted are wrongly quoted while rejecting the technical bid of the petitioner which is indicated in the preceding paragraphs. Therefore, I am of the view that respondent Nos.1 and 2 are guilty of hyper technical approach to non-suit the petitioner- company. An inference can be drawn that respondent Nos.1 and 2 have made all possible efforts to disqualify the 34 petitioner on whimsical grounds. The respondent Nos.1 and 2 could not have adopted an approach to unreasonably disqualify the petitioner who is otherwise found qualified for the left flank of the same dam. Such a hyper technical approach would not be in a public interest as it would curtail competition.
31. The tender notification contemplates reverse tender process and also lays down a procedure for submission of tender for reverse tendering. The concept of reverse tendering has gained significant attention in the realm of procurement and contract management. Reverse tendering also known as reverse auction is a strategic process that flips the traditional procurement model on its head. Instead of tenderers bidding to win a contract by offering the lowest price, the reverse tendering process allows the contractors to compete and lower their prices through a transparent and competitive online platform. Therefore, where reverse tendering process is exercised, the auction takes place on the 35 online platform with bids becoming increasingly competitive within a predetermined timeframe. This further promotes transparency of process and ensures fairness and fosters a competitive environment. By rejecting the petitioner's technical bid on whimsical grounds, the reverse tendering process is virtually negated. Even on this count, the impugned orders of rejection passed by respondent Nos.1 and 2 are liable to be rejected.
32. Judicial interference is permissible when the action of the State is unconstitutional. Standards applied by the Court in judicial review must be justified by constitutional principles which govern proper exercise of public power. It is equally trite law that principle of judicial review cannot be denied in contractual matters or matters in which the State exercises its contractual powers. Therefore, judicial review is intended to prevent arbitrariness and in a given case, it must be exercised in law in larger public interest. The Hon'ble Apex 36 Court in catena of judgments has held that power of judicial review is neither unqualified, nor unlimited.
33. When one talks of judicial review, one is instantly reminded of the classic and oft-quoted passage from Council of Civil Service Unions (CCSU) vs. Minister for the Civil Service2, where Lord Diplock summed up the permissible grounds of judicial review, thus:
"Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.
By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justifiable question to be decided, in 2 1985 AC 374 37 the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."38
34. The petitioner-Company's technical bid is rejected by quoting wrong figures. The technical bid is also rejected on the ground that the petitioner-company has not done similar work and does not possess expertise. The respondent No.1- Board has strangely ignored the documents annexed by petitioner-company. The work done certificates annexed along with application though are found to be part of record are deliberately ignored by the respondent No.1-Board's Evaluation Committee. Therefore, I am more than satisfied that the decision in rejecting petitioner's technical bid is outrageous in its defiance of logic. Petitioner-company is already awarded the maintenance work of left flank and therefore, respondent No.1-Board is guilty of not acting with procedural fairness. The material on record clearly demonstrates that the impugned orders rejecting petitioner's technical bid suffer from procedural impropriety.
35. The petitioner has succeeded in substantiating that this is a fit case for judicial review. I am more than satisfied 39 that petitioner is entitled to challenge the legal validity of the impugned decision. There is almost complete unanimity on the principle that judicial review is not so much concerned with the decision itself as much with the decision-making process. Though Hon'ble Apex Court in State of Punjab vs. Gurdial Singh3 noticed the limitations of judicial review and declared that the power vested in the superior courts ought to be exercised with great circumspection, and that interference may be permissible, only where the exercise of power seems to be have been vitiated, the Hon'ble Apex Court further held that court is not totally handcuffed and judicial review is permissible where it is found that the finding of fact is not supported by any reasonable basis and an evaluation done by the committee is not consistent with the norms and rules governing tender regime.
36. Though learned counsel appearing for respondent Nos.1 and 2 has taken a stand that evaluating tenders and 3 1980 SCR (1) 1071 40 awarding contracts are essentially commercial functions and therefore, principles of equity and natural justice stay at a distance, I am not inclined to accede to this argument as I am more than convinced that the impugned decision in rejecting petitioner's technical bid is not bona fide and also not in public interest. The material on record clearly demonstrates procedural aberration and a conscious error in assessment which has not only caused serious prejudice to the tenderer, but by accepting the technical bid of respondent No.3, the reverse auction in the present case on hand is virtually neutralized by the officials of respondent No.1-Board.
37. The petitioner along with its application has produced experience certificates indicating that it has an experience of carrying projects relating to maintenance and rehabilitation of dams. The Hon'ble Apex Court in the case of New Horizons Limited (supra) held that past experience should be considered along with the present resources available to a tenderer. The same view is taken by the 41 Hon'ble Apex Court in the case of Raunaq International Limited vs. I.V.R. Construction Ltd. and Others4. These two judgments were rendered bearing in mind that when large work contracts involving engagement of substantial manpower or requiring specific skills are required to implement a particular project, the ability of a tenderer and to deliver and execute project also becomes relevant. While maintenance of a dam requires high degree of skill, the same cannot be equated to a project done on a canal. The canal is excavated trenched and down stream side of a dam. The execution of projects relating to canals or artificial waterways are in fact horizontal projects, while implementation of projects relating to dam warrants high skill. Companies who have a specific specialization with a reputation of integrity, equality and fiscal responsibility have to be awarded such projects. Only those firms which specialize in dam construction and repairs have to be awarded contracts. Only companies with dedicated crews, 4 AIR 1999 SC 393 42 specialized equipment with a robust safety programme can be awarded such contracts. The provision of Dam Safety Act, 2021 mandates State Governments to constitute State Committee's on dam safety which shall ensure proper surveillance, inspection, operation and maintenance of specified dams and ensure their safe functioning. To ensure safe functioning, the maintenance and rehabilitation becomes further more relevant.
38. The action of respondent No.1-Board clearly gives an indication that the authorities have acted with malafides and the same is intended to favour respondent No.3 which does not possess expertise and experience in projects relating to maintenance and rehabilitation of dam projects. The rejection of technical bid of petitioner when it is already awarded maintenance of left flank of the same dam clearly demonstrates that decision is unreasonable and no responsible authority acting reasonably and in accordance with relevant 43 law could have reached the decision which is impugned in the captioned petition.
39. In the light of observations made by me in the preceding paragraphs, though invitation to tender is in the realm of contract, I am more than satisfied that the impugned decision arrived at by respondent No.1 lacks qualitative evaluation by the experts. The impugned decision clearly suffers from arbitrariness affected by bias and rejection of technical bid of petitioner is actuated by malafides. Respondent No.3 who has furnished documents for having done projects relating to maintenance of canals is awarded project relating to maintenance and rehabilitation of Tungabhadra Dam and therefore, I am more than satisfied that respondent No.1 has not acted validly and obviously not within the bounds of reasonableness. I am also of the view that respondent No.1 has failed to act in conformity with certain healthy standards and norms which are essential for awarding contracts of such a magnitude. The action of 44 officials of respondent No.1-Board clearly depicts misuse of its statutory powers.
40. In the light of principles stated supra, I am more than satisfied that respondent No.1-Board's decision suffers from illegality, irrationality, as well as procedural impropriety. Accordingly, I proceed to pass the following:
ORDER
(i) The writ petition is allowed;
(ii) The impugned orders passed by respondent No.2 rejecting the petitioner's technical bid in respect of tender Nos.92/2022-23 and 93/2022-23 vide Annexures-L and M respectively are hereby set aside. Consequently, the order dated 18.01.2023 awarding tender in favour of respondent No.3 vide Annexure-S is quashed;
(iii) The respondent Nos.1 and 2 shall re-do the entire tender process in accordance with law bearing in mind the observations made by this Court supra;45
(iv) The pending interlocutory application, if any, does not survive for consideration and stands disposed of.
Sd/-
JUDGE CA