Jharkhand High Court
Shiv Shakti Constructions Through Its ... vs The State Of Jharkhand on 21 November, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (C) No. 4876 of 2022
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Shiv Shakti Constructions through its Authorized Representative Rajesh Kumar Yadav --- --- Petitioner Versus
1. The State of Jharkhand
2. The Secretary, Department of Water Resources, Govt. of Jharkhand
3. Engineer-in-Chief, Water Resources, Govt. of Jharkhand
4. Chief Engineer, Water Resources Department, Jharkhand
5. The Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar
--- --- Respondents CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan
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For the Petitioner: Mr. Nilesh Kumar, Advocate
For the Resp.-State: Mr. Manish Kumar, Sr. SC-II
Ms. Sunita Kumari, A.C to Sr. S.C-II
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06 / 21.11.2022 By the impugned decision contained in the Minutes dated 20.09.2022
(Annexure-7), the Departmental Tender Committee has declared the bid submitted by the petitioner as non-responsive. Petitioner has also challenged the communication bearing no. 296/Madhupur dated 21.09.2022 (Annexure-9) issued by the Respondent No. 3, whereby the petitioner has not been invited for participation in the evaluation of the technical bid. Petitioner has also prayed for a direction upon the Respondent No. 3 to allow him to participate in the technical bid and declare him responsive for a bid in question.
2. Petitioner is a registered contractor under Water Resources Department, Government of Uttar Pradesh. It contends that it is ready to get itself registered with the Water Resources Department, Government of Jharkhand vide e-tender Reference No. WRD/Irr.Div.No. 2, Sikatia (Deoghar)/SBD-IFB-02/2022-23 dated 22.07.2022, whereby bids were invited for the work of P.C.C lining and renovation of structures from 0.00 to 15.00 Km of Ajay Main Canal for an approx. value of Rs. 1,24,58,06,798.53 paise from eligible and approved contractors (Annexure-2). Petitioner submitted the bid documents in the office of the Respondent No. 3 with all relevant documents and FDR amounting to Rs. 1,24,60,000/- from Canara Bank, Alpha Commercial Market, Gautam Buddha Nagar in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar, Jharkhand dated 10.08.2022 (Annexure-3 & 4). Respondent No. 3 made an inquiry through letter no. 233/Madhupur dated 13.08.2022 from the Branch Manager, Canara Bank, Alpha Commercial Market, Gautam Buddha Nagar regarding verification of FDR deposited by the petitioner (Annexure-5). The concerned bank vide e-mail dated 16.08.2022 (Annexure-6) 2 sent to the Respondent No. 3 confirmed that they have issued the subject FDR of Rs. 1,24,60,000/- submitted by the petitioner in the office of the Respondent No. 3. However, the petitioner was surprised to know that the Departmental Tender Committee had, in its meeting held on 20.09.2022, declared the bid submitted by the petitioner as non-responsive on the ground that the FDR of Rs. 1,24,60,000/- valid upto 10.08.2022, was not pledged in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia (Deoghar) (Annexure-7). Immediately thereafter, the Bank in question wrote a letter dated 21.09.2022 to the Respondent No. 3 (Annexure-8) stating that they had already confirmed the same on 16.08.2022 and that the subject FDR was issued in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar (Respondent No. 5). It also reconfirmed the same through the e-mail dated 21.09.2022 that they have marked lien of Rs. 1,24,60,000/- on the subject FDR on 10.08.2022.
3. Learned counsel for the petitioner submits that the Respondent No. 5 wrote a letter to the Incharge, e-Procurement Cell, Chief Engineer Office, Water Resources Department, Deoghar vide letter no. 296/Madhupur dated 21.09.2022 that altogether six companies have been found responsive and their Technical Bids will be opened on 21.09.2022. Learned counsel for the petitioner has referred to Clause 4 of the IFB. Clause 4 of the IFB requires submission of bid security to the tune of one percent of bid value in favour of the Respondent No. 5 in any one form as specified in clause 16.1 of Instruction to Bidders of the Standard Bidding Document. As per Clause 16.1, bidders shall furnish fixed deposit receipt issued by any scheduled Indian approved by the Reserve Bank of India. Petitioner has duly submitted the FDR of Canara Bank in favour of the Employer (Respondent No. 5). Learned counsel for the petitioner has further argued that there was no requirement that the FDR issued in the name of the Respondent No. 5 was to be pledged in his favour. Therefore, petitioner has been compelled to approach this Court.
4. Respondents have filed a counter affidavit. It is stated therein that the FDR submitted by the petitioner Company was not proper as it was mentioned on the FDR "received from 1. Shiv Shakti Construction, Greater Nodia, 2. Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar". Thus it was not properly pledged in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia, (Deoghar) (Respondent No. 5). The bid security was therefore not acceptable in accordance with Clause 16.1, 16.2 and 16.3 of the Instruction to Bidders. Relevant clauses have been quoted in the counter affidavit. They have also referred to Clause 16.6, as per which, bid security may be forfeited 3 by the Employer, but the FDR submitted by the petitioner cannot be forfeited without the consent of the petitioner since the same was not pledged or not marked as lien to the Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar. Respondents have also stated that the same petitioner in another Tender No. WRD/Irr.Div.Dumka/SBD-IFB-05/2022-23 dated 15.07.2022 has submitted the Bid Security properly marked as lien to the Executive Engineer which was accepted by the Tender Committee and his bid was declared responsive. Petitioner for the reasons best known to him, has not pledged or not marked as lien the instant FDR in favour of the Executive Engineer. Annexure- A is the bid security (FDR) in the other tender dated 15.07.2022. It is further stated that the clarification of the concerned bank through e-mail dated 16.08.2022 did not contain any specific declaration that the FDR of Rs. 1,24,60,000/- dated 10.08.2022 was issued in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar. The Bank only confirmed that it issued the subject FDR of Rs. 1,24,60,000/- on 10.08.2022 (Annexure-B). It is further stated that surprisingly, on the very next date of the Departmental Tender Committee proceeding dated 20.09.2022, the concerned bank sent a letter to the Respondent No. 5 on 21.09.2022 that they had confirmed on 16.08.2022 that the subject FDR was issued in favour of the Respondent No. 5. The comparison of both the clarification letter shows that concerned bank first time accepted the lien in favour of the Respondent no. 5 vide letter dated 21.09.2022 which is after the petitioner's bid was found non- responsive. Since the Departmental Tender Committee had already taken a decision to declare the petitioner's bid as non-responsive in its meeting dated 20.09.2022 which is in consonance with the clauses of Instruction to Bidders (Part of the SBD), writ petition being without merit, is fit to be dismissed.
5. Petitioner has filed rejoinder to the counter affidavit. It is reiterated that the petitioner has fulfilled all the terms and conditions of the Standard Bidding Document and also submitted the bid security of one percent of the bid value in favour of the Employer which is mentioned in the appendix. The said clause 16.1 (e) provides that the bid security submitted in a fixed deposit receipt from any scheduled Indian Bank approved by the RBI was acceptable. It is stated that the copy of the FDR annexed to the writ petition as Annexure-3 clearly shows that it was issued by the Canara Bank in favour of the Respondent No. 5 who has verified it from the bank on 13.08.2022, as per Annexure-5. The bank duly confirmed vide Annexure-6 e-mail dated 16.08.2022. Learned counsel for the petitioner has reiterated that there was no condition to add the word 4 'pledge' or 'lien' in the FDR. Issuance of FDR in favour of a particular person for a particular time clearly indicate that the amount has been blocked and / given in their favour for a particular time. The Respondents in a very casual and mechanical manner have declared the petitioner's bid as non-responsive. Even if the Department had specific query, they had sufficient time to verify the same from the Bank concerned. Nowhere, the Bank has disputed about issuance of FDR, rather it has categorically accepted the same. Learned counsel for the petitioner has also referred to the newspaper reports which indicates that the Enforcement Directorate has collected evidence against the person who had called a senior officer to manage the present tender. It is apprehended by the petitioner that the Tender Committee has not acted independently. Learned counsel for the petitioner submits that in such circumstances, since the Financial Bid of the remaining bidders have not yet been opened, the impugned decision of the Tender Committee dated 20.09.2022 may be quashed and the Respondents may be directed to treat the petitioner's bid as responsive.
6. We have considered the submissions of learned counsel for the parties and taken note of the pleading borne from the records. The issue in the present writ petition revolves around the submission of FDR. The FDR of Rs. 1,24,60,000/- submitted by the petitioner as one percent of the bid security amount shows that it has been issued by the Canara Bank, Alpha Commercial Market, Gautam Buddha Nagar. The receipt shows 1. received from M/s Shiv Shakti Construction 2. Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar and is valid for a period of 12 months from 12.08.2022. Clause 16 of the Instruction to Bidders which the parties have referred to in support of their rival cases is quoted hereunder:
"16. 1 The Bidder shall furnish, as part of his Bid, a Bid security (one percent of the bid value) in the amount as shown in column 4 of the table of IFB for this particular work. This bid security shall be in favour of Employer as named in Appendix and may be in one of the following forms:
a. Receipt in challan of cash deposit in the Govt. Treasury in India.
b. Deposit-at-call receipt from any scheduled Indian bank from any of the branches of SBI/Nationalised/Scheduled Bank situated within the State of Jharkhand approved by the Reserve Bank of India.
c. Indian Post Office/National Savings Certificates duly endorsed by the competent postal authority in India. d. Bank Guarantee from any scheduled Indian Bank from any of the branches of SBI/Nationalised / Scheduled Bank situated within the State of Jharkhand in the format given in Section 8. e. Fixed deposit receipt, a certified cheque or an irrevocable letter of credit, issued by any scheduled Indian Bank approved by the Reserve Bank of India.5
16.2 Bank guarantees (and other instruments having fixed validity) issued as surety for the bid shall be valid for 45 days beyond the validity of the bid.
16.3 Any bid not accompanied by an acceptable Bid Security and not secured as indicated in Sub-Clause 16.1 and 16.2 above shall be rejected by the Employer as non-responsive."
7. Respondent No. 5 upon submission of the bid by the petitioner together with the FDR made inquiry from the Branch Manager, Canara Bank, Alpha Commercial Market, Gautam Buddha Nagar through letter no. 233/Madhupur dated 13.08.2022 (Annexure-5) in the following terms:
"कार्यपालक अभिर्ंता का कार्ाय लर् भ ंचाई प्रमण्डल ं ०-02, भ कभिर्ा (दे वघर) E-mail [email protected] पत्ां क:- 233 / मधुपुर भदनां क 13/8/ 12022 प्रेषक :-
ई० भदलीप कुमार मुममय, कार्यपालक अभिर्ंता ।
ेवा में, Branch Manager, Canara Bank, Alpha Commercial Market, Gautam Buddha Nagar.
भवषर्:- FDR का त्यापन करने के ंबंध में | प्र ंग:- FDR A/C No. 140005646834/7 Dated:-10.08.2022 Amt. 1.24,60,000.00 महाशर्, उपर्ुयक्त भवषर्क के न्दिय में कहना है भक Shiv Shakti Constructions के द्वारा इ कार्ाय लर् के द्वारा भनकाली गई भनभवदा ं WRD/Irr.Div.No.2,Sikatia(Deoghar)/SBD- IFS-02/2022-23 Dt: 22.07.2022 में भनभवदा डाली गई है । भि में इनके द्वारा आपके बैंक शाखा े भनगयत FDR A/C No. 140006646834/7 Dated: 10.08.2022 Amt. 1,24,60,000.00 अग्रधन के रूप में िमा की गई है तथा िो अधोहस्ताक्षरी के नाम प्रभतभित भकर्ा गर्ा है ।
अनुरोध है भक उपरोक्त वभणयत FDR का त्यापन करना चाहें गे। ुलि प्र ंग हे तु FDR की छार्ा प्रभत पत् के ाथ ंलग्न की िा रही है ।। अनु ०: - र्थावत्।
भवश्वा िािन कार्यपालक अभिर्ंता भ ंचाई प्रमण्डल ं ०-02 भ कभिर्ा(दे वघर)"
(Emphasis supplied)
8. Vide Annexure-6 email dated 16.08.2022, Canara Bank, Alpha Commercial Market issued the following confirmation "We confirm that we have issued subject FDR of Rs.
1,24,60,000/- on 10.08.2022."
9. The Tender Committee held its meeting on 20.09.2022 and considered the bids of 11 bidders including the petitioner who was at serial no. 1. The bid of the petitioner has been rejected only on the ground that the FDR was not 6 pledged in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar. The Respondent Bank has thereafter through e-mail dated 21.09.022 again confirmed that the FDR of Rs. 1,24,60,000/- was marked as lien on 10.08.2022.
10. A perusal of Clause 16.1 and Clause 16.1 (e) does not show that the fixed deposit receipt has to bear the endorsement of being pledged or liened in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar. That was not the condition for submission of the bid security, as per the Instruction to Bidders, as per the SBD. Therefore, there was no reason why the petitioner's bid should have been declared as non-responsive on that ground. Moreover, the concerned bank vide Annexure-6 e-mail dated 16.08.2022 had also categorically confirmed to the Respondent No. 5 on the very subject that they have issued the subject FDR on 10.08.2022. A perusal of the letter no. 233/Madhupur dated 13.08.2022, issued by the Respondent No. 5 to the Branch Manager, Canara Bank, Alpha Commercial Market, Gautam Buddha Nagar (Annexure-5) would show that the Respondent No. 5 also understood the FDR in the manner that the same has been pledged in his favour. After the bank has confirmed the same vide Annexure-6 letter dated 16.08.2022, the Tender Evaluation Committee seems to have imposed a condition which was not the terms of Instruction to Bidders, as per the SBD and declared the petitioner's bid as non-responsive as the FDR was not pledged in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar (Respondent No. 5).
11. Learned counsel for the Respondent has stated that the petitioner in another Tender No. WRD/Irr.Div.Dumka/SBD-IFB-05/2022-23 dated 15.07.2022 had submitted the Bid Security / FDR in which the word 'lien' was used. However, that being not a mandatory requirement of Clause 16 relating to the bid security under ITB of the Standard Bidding Document, addition of the word 'lien' in the FDR in the other bid would not amount to holding that absence of such an expression 'pledge' or 'lien' in the FDR (Annexure-3) submitted by the petitioner in connection with the instant bid was not in consonance with Clause 16 of the Instruction to Bidders under the Standard Bidding Document.
Learned counsel for the Respondents has informed this Court that Financial Bid of other bidders whose bids were found responsive has not yet been opened.
12. Taking all these facts and circumstances into consideration and for the reasons recorded hereinabove, we are of the considered view that the decision 7 of the Tender Evaluation Committee dated 20.09.2022 declaring the petitioner's bid as non-responsive only for the reason that its FDR was not pledged in favour of the Executive Engineer, Irrigation Division No. 2, Sikatia, Deoghar (Respondent No. 5), is not proper in the eye of law as there was no such requirement under Clause 16 of the Instruction to Bidders under Standard Bidding Document. As such, the decision being arbitrary, cannot be sustained in the eye of law. It is accordingly set aside. Petitioner's bid be considered as responsive on those counts and be entertained along with the bids of other bidders for the purposes of finalization of the tender.
13. Writ petition is accordingly allowed in the manner and to the extent indicated hereinabove.
(Aparesh Kumar Singh, J) (Deepak Roshan, J) Ranjeet/