Jharkhand High Court
Ms Va Tech Wabag Limited Through Its ... vs Drinking Water And Sanitation on 11 February, 2015
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 6710 of 2013
M/s VA Tech Wabag Limited, a company duly registered under the
provisions of the Indian Companies Act through its ManagerLegal
Mr. S.T. Balayogeshwaran, son of Shri Siva. Suyambu having its
registered office at 11, Murray's Gate Road, Alwarpet, P.O.
Mylapore, P.S. Teynampet, Town and District Chennai 600018
(Tamil Nadu) and one of its works at and P.O. Bhelatand, P.S.
Barwadda, DistrictDhanbad ... ... Petitioner
Versus
1. The State of Jharkhand, through the Additional Secretary,
Department of Drinking Water and Sanitation, Ranchi
2. The Superintending Engineer, Drinking Water and Sanitation
Circle, Dhanbad
3. The Executive Engineer, Drinking Water and Sanitation
Circle, Dhanbad
4. M/s Abhay Kumar Sinha, son of Braj Kishore Prasad,
Telipara, Hirapur, Dhanbad ... ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Mr. Saurav Kumar, Advocate
Mr. Indrajit Sinha, Advocate
Ms. Suchitra Pandey, Advocate
Mr. Arpan Mishra, Advocate
For the RespondentState : Mr. Rajesh Shankar, G.A.
Mr. Abhay Prakash, J.C. to G.A.
For the Respondent No. 4 : Mr. Anil Kumar Sinha, Sr. Advocate
Order No. 05 Dated: 11.02.2015
The petitionerM/s VA Tech Wabag Limited has
approached this Court with the following prayers:
(i) For a declaration that the Respondent No. 4 was not
technically eligible to participate in the bidding process in
respect of Tender No. O&M/DWSS/Dhanbad02/201314
issued by the Respondent No. 2 for Operation and
Maintenance of Water Treatment Plant at Bhelatand and
Maithan with other ancillary works including water supply
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from 18 nos. of existing ESR under Dhanbad water supply
scheme phase1 and 2 for the year 201314 and 201415
and set aside the decision of the Respondent Department
dated 25.09.2013 holding the Respondent No. 4 as
technically eligible;
(ii) further issuance of writ in the nature of certiorari or any
other appropriate writ to set aside the award of contract in
favour of the Respondent No. 4 in respect of Tender No.
O&M/DWSS/Dhanbad02/201314, as communicated to the
petitioner vide letter dated 21.10.2013 of the Respondent
No. 3, as being illegal, arbitrary, unjustified, contrary to the
tender conditions and constitutional;
(iii) further an appropriate writ or writs order or direction
commanding upon the Respondents to act in a fair,
equitable, legal manner and in accordance with the tender
conditions in respect of Tender No. O&M/DWSS/Dhanbad
02/201314 and to consider the financial bid of only
technically eligible bidders,
(iv) further an appropriate writ or writs order or direction
commanding upon the Respondents to restrain from acting
in any manner and in furtherance of the said award of
contract to the Respondent No. 4 in respect of Tender No.
O&M/DWSS/Dhanbad02/201314;
(v) further for a declaration that the petitioner being the
only eligible bidder was entitled to the award of contract in
respect of Tender No. O&M/DWSS/Dhanbad02/201314
for the year 201314 and 201415 and,
(vi) for issuance of any other appropriate writ(s), order(s),
direction(s), as deemed fit and proper for doing
conscionable justice to the petitioner.
2. Briefly stated, the facts of the case are narrated thus:
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The petitionercompany claiming itself one of the
leading companies in the world in the water treatment field, was
awarded work order dated 30.07.2011 for the O&M contract for
the Dhanbad Water Supply Scheme Phase1 for two years.
Previously also the petitioner has executed water R.O. Plant at
Chennai, Games Village Water Treatment Plant at New Delhi,
Wastewater Treatment Plant at Jamnagar Refinery, MBR
Technology Wastewater Treatment Plant at Muscat,
Ultrafiltration Plant for Wastewater Treatment at Vizag etc. Since
the period for O & M contract for Dhanbad Water Supply Scheme
PhaseI was coming to an end, the respondentDepartment of
Drinking Water and Sanitation issued eProcurement notice dated
25.06.2013. In the notice dated 25.06.2013 the scope of work was enlarged by including small Water Treatment Plant at Maithan also. The estimated cost for execution of work was Rs. 9.47 crores for a period of 24 months. The bid was required to be submitted in online format in two folders containing the technical bid and the price bid separately. Specific requirement of experience of the bidders was also indicated in the Tender condition and it was made clear that the bid of the tenderers, not having requisite eligibility would not be considered. The bidders were required to submit experience certificates indicating:
(a) atleast one year experience in successful operation & maintenance of municipal WTP of minimum 30 MLD capacity anywhere in India;
(b) possess High Tension & Low Tension Contractor License;
(c) experience of successful O & M of a pumping station, consisting of a V.T. Pump with minimum capacity of 800 Cubic Meter/Hour discharge & a centrifugal pump of 400 Cubic Meter/Hour discharge & a centrifugal pump of 400 Cubic Meters discharge;
(d) experience of 1 year in maintenance of 3 nos. of Elevated Service Reservoir of a capacity of minimum 1 lac 4 gallon;
(e) experience of laying and maintaining of rising mains and distribution network of pipe 30 km in length with 200 m to 400 m diameter and
(f) the turnover requirement of the bidder was that it should have had a turnover of 50% of the tendered amount in any one year in last three financial years to be certified by a Chartered Accountant.
3. The petitioner further claims that in terms of Clause 1.12.2.2 of the Tender condition, in a JointVenture, "lead partner" of the JV was required to meet atleast 50% of the eligibility under Clause 1.9. in proportion to partnership in JV, but not less than 50% of the eligibility criteria provided under Clause 1.9. The respondentDepartment uploaded the PreBid Clarification and Corrigendum on 10.07.2013 however, there was no indication of a discussion as to clarification of Clause 1.9. The information available on 23.07.2013 did not disclose the JointVenture of the respondent no. 4 with M/s Neo Parisrutan Pvt. Ltd, M/s Hindustan Architects Pvt. Limited and M/s Basak Engineering. The petitioner who has successfully executed the work order dated 30.07.2011 submitted its bid on 23.07.2013. The bid submitted by the respondent no. 4 discloses that the respondent no. 4 entered into MoU with the aforesaid three companies for execution of the work. The respondent no. 4 submitted its bid on the basis of credential of the above collaborators in the following manner:
(a) Relying on the experience of M/s Neo Parisrutan Pvt. Ltd for the purpose of experience in O & M of WTP;
(b) Relying on the credential of M/s Hindustan Architects Pvt. Limited for the purposes of laying and maintaining long distance large diameter pipeline and
(c) Relying on M/s Basak Engineering & Co for its HT & LT 5 contractor license. Upon relying on the above, the Respondent No. 4 stated that the Department would find him competent to execute the work.
4. The writ petitioner asserts that the respondent no. 4 does not meet the experience eligibility for the following reasons:
(a) the Certificate given by M/s. Hindustan Architects Private Limited was only for laying of 12 km pipeline and it did not meet the requirement of laying as well as maintaining of a 30 km pipeline.
(b) the certificate given by M/s. NeoParisrutan Private Limited did not meet the required experience of operating and maintaining a pumping station consisting of a VT Pump of minimum capacity of 800 Cubic Meter per hour discharge.
The Certificate given related only to operation and maintenance of a Water Treatment Plant and did not deal with VT pump in a pumping station.
(c) there is no proof that Mr. Abhay Kumar Sinha or his JointVenture Partners have any experience of 1 year in maintenance of 3 nos. Elevated Service Reservoir with a minimum capacity of 1 lakh gallon.
(d) the Respondent No. 4 only claim was that it had been executing various type of works of substantial quantum in the State of Jharkhand. The Certificate annexed by the Respondent No. 4 showed that he had been recently given a contract by the Department for the levelling, design and construction of RCC ESR, but there was no work of O & M of the nature required.
(e) the tender conditions required that the prime bidder/lead partner should have minimum 50 % proportion in the partnership. Despite being the prime bidder, there was no expertise that Abhay Kumar Sinha possessed. Abhay Kumar Sinha was not meeting the experience eligibility of minimum 50%.
5. After the period under the work order dated 30.07.2011 ended, the respondentDepartment vide letter 29.07.2013 permitted the petitioner to continue the O & M work for about two months till, the tender was finalized. On 05.08.2013, the technical bid was opened and the bid of three 6 bidders including, the petitioner and the respondent no. 4 were admitted for "evaluation" purposes. The result of the bid evaluation was uploaded on website on 25.09.2013 at 5.35 p.m. indicating that the petitioner's bid as well as the bid of the respondent no. 4 have been accepted and at 5.36 p.m. the petitioner was informed by email that financial bid would be opened on 26.09.2013 at 10.30 a.m. In the financial bid the respondent no. 4 was declared lowest bidder at Rs. 9,35,42,954.60 whereas, the petitioner's financial bid was at Rs. 10,41,49,525.82/. Since, the financial bid was opened within 24 hours of the acceptance of technical bid, the petitioner had no time to verify the credentials of the respondent no. 4. Suspecting foul play, the petitioner gathered information and immediately thereafter, lodged a complaint on 27.09.2013 challenging the eligibility of the respondent no. 4 in terms of Clause 1.9 r/w Clause 1.12.2.2. About 25 days thereafter, the respondentDepartment informed the petitioner vide letter dated 21.10.2013 that the work of O & M has been allotted to M/s Abhay Kumar Sinha and the petitioner was directed to hand over the project in working condition by 15.11.2013. Though, the period under work order dated 30.07.2011 ended in August, 2013 and no complaint whatsoever was made against the petitionercompany, on 22.10.2013, that is, immediately after awarding the work in question to the respondent no. 4, the respondentDepartment wrote a letter that the work of painting of WTP and replacement of filter media was not carried out by the petitioner. The petitioner immediately replied vide letter dated 25.10.2013 refuting the said allegation. It is stated that action of the respondentDepartment in awarding the contract to a technically ineligible party who is merely acting as an agent to secure work would be detrimental to the public interest. The respondentDepartment acted in haste and in an arbitrary manner 7 relaxed technical eligibility criteria in favour of one party and therefore, constrained, the petitioner approached this Court by filing the present writ petition.
6. A counteraffidavit has been filed on behalf of the respondentState of Jharkhand stating that the "prime bidder"
M/s Abhay Kumar Sinha along with the MoU partners fulfills the eligibility criteria. The prime bidder M/s Abhay Kumar Sinha has sufficient financial turnover and is a Class I unlimited registered contractor of Drinking Water and Sanitation Department, Government of Jharkhand. It is executing Shivli Rural Water Scheme and it has already carried out O & M work of 2.5 MLD Mugma Water Supply Scheme. The JointVenture partner M/s NeoParisrutan Private Limited (NPPL) has successfully commissioned 55.02 MLD WPT at Phulwari and 90.8 MLD WPT Sermanpore (CMWSA) on Turnkey basis along with civil, mechanical and electrical works. It is further stated that the prime bidder (M/s Abhay Kumar Sinha) along with the JointVenture partners fulfills the eligibility criteria which is evident from the inspection report submitted by the SubDivisional Officer, Maithan. The eligibility criteria of 50% and experience of partnership for prime bidder was modified with consent of the bidders present in the prebid meeting held on 09.07.2013. The uploading of price bid result was as per Clause 1.9 of the Tender. After execution of agreement dated 17.10.2013, the petitioner and NCCL both were asked to handover the Project in working condition. The NCCL has handed over the same however, the petitioner has not handed over the Project and various components of the Plant are in dilapidated conditions. Various pumps, motors and transformer are lying idle for want of repairs. The Tender process was completed as per NIT conditions and the prebid meeting and subsequent clarification and corrigendum were issued in a transparent manner. The petitioner had sufficient time to raise the question of eligibility of 8 respondent no. 4 however, it raised an objection only after 52 days when its price bid was found higher by 1.06 crores. Further affidavits have been filed by the respondentState of Jharkhand bringing on record certain documents to indicate that the Superintending Engineer has been authorised and competent to deal with all aspects of the Tender for work in question.
7. A counteraffidavit has been filed by respondent no. 4 stating that the answering respondent and other partners formed JointVenture and are fully eligible for the work in question. The word "JointVenture" has not been defined in any statutory form. The word "lead partner" is used for convenience however, in case of JointVenture, the combined effect has to be seen for the purpose of contract. The respondent no. 4 being one of the partners in JointVenture who has been authorised to sign documents on behalf of the JointVenture, is fully eligible for participating in the Tender process irrespective of relaxation or not. The experience certificates submitted by respondent no. 4 were enquired by the Authority and the same were found correct. It is further stated that the Superintending Engineer is competent authority to decide the Tender process. Under the Jharkhand Public Works Department Code, relaxation is also permissible in the larger public interest. Only two tenderers namely, the respondent no. 4 and the writ petitioner qualified in technical bid and if the respondent no. 4 is disqualified, it would become a case of single Tender which cannot be accepted and thus, fresh Tender has to be initiated. In such a situation, in larger public interest, with the consent of the writ petitioner, certain relaxation was made, even though it is not required in case of JointVenture and as such there is no infirmity in the decision making process. Further affidavits have been filed by respondent no. 4 asserting that the respondent no. 4 with the other JointVenture partners are eligible and fully competent to execute the work in question.
98. The petitioner has filed affidavits/rejoinderaffidavits denying the allegations. It is stated that in MoU signed by the respondent no. 4 with other collaborators, "lead partner" is neither defined nor indicated.
9. Heard the learned counsel appearing for the parties.
10. Mr. Saurav Kumar, the learned counsel for the petitioner submits that, the mandatory condition in the Tender document cannot be ignored/overlooked rather, it has to be adhered to and respected by all. The respondentSuperintending Engineer has no authority to change/modify/amend the Tender condition. In the garb of clarification the mandatory condition under Clause 1.9 and Clause 1.12.2.2 have been amended/modified by the respondents which is not permissible. Though Clauses in the Tender clearly stipulate submission of requisite documents and this is a mandatory condition however, documents establishing experience of "lead partner" were not submitted. It is further submitted that, there is a specific clause in the Tender that if the bid is not accompanied by necessary documents, it would be liable to be rejected. Referring to the past experience of the petitionercompany in successfully executing several projects across the globe, the learned counsel for the petitioner submits that, the petitioner undertakes to carry the work under eprocurement notice dated 25.06.2013 at the rate quoted by the respondent no. 4. It is further submitted that it would be in the public interest that an ineligible candidate is not awarded contract which is of great significance for the reason that it may adversely affect the health of the people. The learned counsel relied on judgments in "Ram Gajadhar Nishad v. State of U.P. & Ors." reported in (1990) 2 SCC 486, "W.B. State Electricity Board v. Patel Engineering Co. Ltd. & Ors." reported in (2001) 2 SCC 451, "Sorath Builders v. Shreejikrupa Buildcon Ltd. & Ors." reported in (2009) 11 SCC 9, "Monarch Infrastructure (P) Ltd. v.
10Commissioner, Ulhasnagar Municipal Corporation & Ors." reported in (2000) 5 SCC 287, "National Thermal Power Corporation Ltd. v. Ansaldo Caldaie Boilers India Private Ltd. & Anr." reported in (2012) 4 SCC 471, "Shagun Mahila Udyogik Sahakari v. State of Maharashra & Ors." reported in (2011) 9 SCC 340 and "Ramchandra Keshav Adke (dead) by Lrs. & Ors. v. Govind Joti Chavare & Ors." reported in (1995) 1 SCC 559.
11. As against the above, Mr. Rajesh Shankar, the learned G.A. appearing for the respondentState of Jharkhand submits that, though the petitioner participated in the prebid meeting dated 09.07.2013 and a proceeding was drawn, it never raised any objection to the qualification of respondent no. 4 and only when the price bid was open on 26.09.2013, it lodged a protest on 27.09.2013. The conduct of the petitionercompany indicates that it somehow wants to retain the possession of the plant to continue the work in the manner it desires. Referring to Rule 290 of PWD Code and certain communications, it is submitted that the Superintending Engineer has necessary power to take decision with respect to clarification of the Tender condition. Under the instructions issued by the Government of Jharkhand, the Superintending Engineer is the person who grants administrative as well as financial sanction to the project of this nature. It is further submitted that, respondent no. 4 is a JointVenture which is a collective body of the individuals having requisites experience and finance.
12. Mr. A. K. Sinha, the learned Senior counsel appearing for the respondent no. 4 submits that, the petitioner cannot raise a grievance with respect to the clarification in Tender conditions and it must establish prejudice caused to it. The relaxation, if any, in the Tender conditions is applicable to all the participants and thus, it would not cause any prejudice to the petitionercompany. It is further submitted that, the case of the petitioner was fully 11 considered and only when it was declared L2, it raised a grievance with respect to suitability/eligibility of respondent no. 4. The respondent no. 4 is fully capable of executing the work under Tender. It is further submitted that the word amendment is not determinative and it has to be seen whether the proceeding dated 09.07.2013 is clarificatory and explanatory. The word "lead partner" has not been defined anywhere and thus, if the expression lead partner or prime partner has been used in certain documents, it has been loosely used by the respondent no. 4 or the respondentState of Jharkhand. Relying on a decision in "Executive officer, Arthanareswarar Temple v. R. Sathaymoorthy & Ors." reported in AIR 1999 SC 958, it is reiterated that the petitioner is required to show prejudice caused to it. The original period under the contract is to expire on 15.11.2015 and thus, only few months have been left and therefore, interference in the matter would not be in the public interest. Relying on decision in "Air India Ltd. Vs. Cochin International Airport Ltd." reported in (2000) 2 SCC 617, it is further submitted that merely because some error has been committed in the award of Tender, the High Court in exercise of jurisdiction under Article 226 of the Constitution of India would not interfere with the decision of the administrative authority, as the High Court does not act as an appellate authority. Relying on decision in "New Horizons Ltd. & Anr v. Union of India & Ors." reported in (1995) 1 SCC 478, it is submitted that it is not in dispute that one or the other partners of the JointVenture has adequate experience in terms of Tender conditions. Referring to decision in "Ranjan Kumar Etc. Etc. Vs. State of Bihar", reported in 2014 (2) JLJR 583(SC), it is further submitted that, once the petitioner participated in the Tender process, it cannot be permitted to raise grievance with respect to award of Tender to respondent no. 4.
13. In reply, relying on decision of the Hon'ble Supreme 12 Court in "Patel Engineering" case the learned counsel for the petitionercompany submits that in view of the fact that the mandatory conditions in the Tender documents have been amended by a person who is not authorised, the entire decision making process is vitiated and therefore, the matter requires interference by this Court. It is submitted that the Tender conditions must be adhered to and respected by the respondents and it is in the public interest that the mandatory conditions in the Tender are followed. Reiterating the undertaking of the petitionercompany that it is capable of executing the work for the price for which the respondent no. 4 submitted its bid, the learned counsel for the petitioner submits that, the decision communicated to the petitioner vide letter dated 21.10.2013 is liable to be quashed and the respondents may be directed to grant work under the Tender notice dated 25.06.2013 for O & M work in Tender, to the petitionercompany.
14. I have carefully considered the submissions of the counsel for the parties and perused the documents on record.
15. Before referring to various contentions raised on behalf of the rival parties, the relevant provisions in the Tender document may usefully be noticed;
1.9. Experience and Turn Over: Only those contractor/Firm are eligible to participate in Tender who have got previous experience certificate of execution and successful completion of following component/terms to the extend shown against each item.
* Intending bidders should have O & M work experience under government/Semi Government/Urban Local Body/Industrial Township/Registered company of any large scale Core Industries with the following eligibility criteria.
* The bidder should have at least 1 year experience in 13 successful operation & maintenance of Municipal water treatment plant of minimum capacity 30 MLD anywhere in India.
* The bidder preferably should having H.T & L.T. Contractor license and should have experience in successful operation & maintenance of pumping station of minimum capacity 800 m3/hr. Discharge of V.T. Pump and 400 m3/hr. Discharge of Centrifugal motor pump in anywhere in India.
* The bidder preferably should be having Experience in maintenance of Elevated Service Reservoirs for 1 years minimum or more for the capacity of 1.00 lakh gallon at least 3 nos. and laying as well as maintaining of rising mains & distribution network of pipe of 200mn to 400mn dia 30 kms in length.
* Turn over (Certificate issued by C.A) (Equivalent to, or 50% of, tendered amount in any one year of last three financial years) 1.12. Folder 'A' (Technical Bid) should contain (Scanned copy): 1.12.1 Details of earnest money deposited 1.12.2.1 Firm registration or proof of application for registration, Partnership deed and power of attorney in case of partnership firms/affidavit regarding proprietorship in case of proprietorship firm/articles of association memorandum in the case of company/declaration of individual concern, document regarding JointVenture and detail of condition under which JV is formed (in case of JV).
1.12.2.2 The lead partner of JV shall meet the following qualifying criteria in proportion to the partnership in JV but not less than 50% cl. 1.9 of basic information of tenderer 1.12.3 Attested copy of registration in proper category 14 in D.W. & S.D., Jharkhand/other State or Central Government pertaining to respective water supply nodal dept; up to date Latest income tax clearance certificate/PAN Card, sales tax clearance certificate.
1.12.4 Cost of BOQ 1.12.5 Turn Over ceertificate.
1.12.6 Credentials on satisfactory performance of contracts completed in the part in the following format.
1.12.7 Details of Past experience 1.12.8 Details of similar works executed during previous years to be attached in technical bid in the following format.
Attach attested copies of
(i) Work order
(ii) Satisfactory completion certificate.
1.12.9 Important Note
The eligibility criteria for the civil contractor are as under (If not mentioned otherwise in tender notice.) To be attached in Technical Bid in following format 1.12.10 Details of similar work presently in hand (To be attached in Technical Bid in the following format) Sr. Year Name of the work with Estimated value Organization for No. work order reference & of work (Rs.) which work was brief description executed 1 2 3 4 5
16. From the aforesaid clauses in the Tender document it appears that a bidder should have experience of atleast one year in successful operation and maintenance of Municipal Water Treatment Plant of minimum capacity of 30 MLD. The petitioner has been awarded work order dated 30.07.2011 for O & M work for 77 MLD. It has been made clear in Clauses 1.9 and 1.12.2.2 15 that the "lead partner" of JointVenture shall meet the qualifying criteria in proportion to the partnership in JointVenture but not less than 50% of Clause 1.9 of basic information of the tenderer. In Clause 1.9 there are as many as 6 essential qualifications and thus, in view of Clause 1.12.2.2 the lead partner in a JointVenture must fulfill three out of six conditions mentioned in Clause 1.9. It has been contended on behalf of the respondent no. 4 that the word "lead partner" has not been defined in the Tender document and therefore, if any one of the partners in JointVenture fulfills the condition he is eligible for award of work. It is further submitted that the respondent no. 4 was authorised to submit the Tender document and take all necessary steps in this regard and in that sense only he has been described as lead partner. The submission raised on behalf of respondent no. 4 is liable to rejected. Once the Tender condition under Clause 1.12.2.2 makes it imperative that a "lead partner" of JointVenture must have 50 % of qualifications under Clause 1.9, it was necessary for the respondent no. 4 to disclose who is the lead partner in JointVenture. No such statement has been made by the respondent no. 4 in the present proceeding. Merely relying on the experience of one or the other partners in the JointVenture, it is submitted that the respondent no. 4 is a "collaborator" in the JointVenture. Stressing the need for compliance of the mandatory conditions in contract, in "B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. & Ors." reported in (2006) 11 SCC 548 the Hon'ble Supreme Court observed as under:
"66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under:
(i) if there are essential conditions, the same must be adhered to;
(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and 16 the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;
(vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority;
(vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint."
17. It has been contended on behalf of the respondentState of Jharkhand that a decision was taken in the prebid meeting held on 09.07.2013 and certain clarifications were issued. Copies of the alleged clarification and corrigendum have been placed on record. A perusal of these documents would indicate that in the proceeding held on 09.07.2013 a decision/clarification with respect to earnest money etc. was taken. A decision was also taken that the prime bidder/first 17 partner would be permitted to submit the Tender document. It further appears that a decision was taken that a prime bidder/first partner has to qualify only with respect to financial turn over and other partners in JV/MoU may have other technical experiences and that has to be seen in "the totality" for deciding the eligibility of a tenderer in JointVenture. From the documents produced on record it appears that the proceeding dated 09.07.2013 was never uploaded. Even assuming that the said proceeding took place on 09.07.2013, I do not find any material brought on record by the respondentState of Jharkhand to disclose the authority of Superintending Engineer to change the mandatory conditions under Clause 1.9 and 1.12.2.2. Reference to Rule 290 of the PWD Code and letter of the Department to assert the authority of the Superintending Engineer is completely misconceived. A Tender document reflects the policy decision of the Government of the State and no officer of the State can change the mandatory conditions in Tender document. The power of the Superintending Engineering to grant administrative and financial approval and to deal with the subjectmatter, would not authorise him to change the mandatory conditions of Tender. The participation of petitioner on 07.09.2013 also would not confer jurisdiction on him to change the conditions of contract.
18. Referring to decision in "Asia Foundation and Construction Ltd. Vs. Trafalgar House Construction (I) Ltd. And Others" reported in (1997) 1 SCC 738, I am of the view that it is well settled that fairness in action on the part of the Government is the necessity of the time. The decision taken by the Superintending Engineer to amend mandatory conditions under Clause 1.9 and 1.12.2.2 cannot be said to be a minor deviation in decision making process. In my opinion Superintending Engineer is not competent to relax the Tender conditions which would favour a tenderer. Contentions raised on behalf of respondent 18 no. 4 that the relaxation if any of the Tender condition is applicable to petitioner also is devoid of merit. By importing a report of the S.D.O, the necessary experience which the respondent no. 4 was lacking, has been sought to be filled up by the respondentSuperintending Engineer. In the counteraffidavit, the respondentState of Jharkhand has taken a stand that the respondent no. 4prime bidder M/s Abhay Kumar Sinha along with MoU partners fulfills eligibility criteria which is clear from the supporting documents which were uploaded and also from the inspection made by the SubDivisional Officer, Drinking Water and Sanitation, Maithan. It is further stated that in the prebid meeting held on 09.07.2013 the eligibility criteria of 50% and experience in partnership for "prime bidder" was modified with the consent of the bidders who participated in the prebid meeting. The minutes of the prebid clarification were uploaded on the internet on 10.07.2013 . The minutes dated 09.07.2013 which was uploaded on internet is signed on 10.07.2013. It transpires that it was clarified that JointVenture has to be notarized with details of JointVenture agreement in proportion of turn over and work experience. It is further revealed that clarification with respect to EMD was to be issued through corrigendum. The decision in prebid meeting held on 09.07.2013 does not find place in the prebid clarification which was uploaded on internet. The consequent corrigendum which was signed on 10.07.2013 also does not disclose the decision taken in the prebid meeting held on 09.07.2013 with respect to the decision that the experience of other JointVenture partners would be taken in "totality". In "Harla vs. State of Rajasthan", reported in AIR 1951 SC 467 the Hon'ble Supreme Court has observed as under :
8. "..................Natural justice requires that before the law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may 19 know what it is; or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man............"
19. The learned counsel appearing for the petitioner submits that when the prebid meeting was held on 09.07.2013, the bids were yet to be submitted. Moreover, the bid documents were received and kept for assessment by the respondents for about 25 days however, it appears that in response to letter dated 20.09.2013 of the Superintending Engineer, the SubDivisional Officer visited the Silliguri Water Treatment Plant of M/s NeoParisrutan Private Limited (NPPL) along with the employee of NPPL. The said report further discloses that the SubDivisional Officer has recorded an opinion that NPPL is "competent" for handling and guiding the O & M of the Project in "totality" as MoU collaborator of M/s Abhay Kumar Sinha. I find that no document in support of the observations made by the SubDivisional Officer in report dated 24.09.2013 accompanied the said report. It further appears that one of the essential conditions of the Tender was that the tenderes were required to upload scanned copies of the documents and in case the bid was not supported by essential documents it was liable to be rejected. I find that even if it is assumed that the stand of the respondentState of Jharkhand that the SubDivisional Officer was directed to verify the veracity of the documents submitted by respondent no. 4, the SubDivisional Officer had no occasion to 20 record his opinion that NPPL is competent for handling and guiding the O & M of the Project. Further, the use of the word "totality" used by SubDivisional Officer in his report dated 24.09.2013 creates a serious doubts on the stand taken by the respondentState of Jharkhand. In absence of the experience certificate uploaded along with the bid of respondent no. 4, decision with respect to eligibility of respondent no. 4 taken on 25.09.2013 suffers from procedural irregularity and thus vitiated.
The materials brought on record make the visit and the consequent report by the S.D.O. highly suspicious. However, without taking note of the same I find that the Tender condition under Clause 1.9 and 1.12.2.2 are mandatory. There are various provisions under Clause 1.12 which contain the words "only", "shall" etc. and thus, the conditions are mandatory, is apparent. Moreover, in a workcontract of this magnitude, the conditions relating to experience have to be mandatory. The Superintending Engineer has no authority to change the mandatory conditions. In "W.B. SEB v. Patel Engg. Co. Ltd. & Ors." reported in (2001) 2 SCC 451 the need for adhering to mandatory conditions has been emphasized by the Hon'ble Supreme Court. The contention raised on behalf of the State with respect to conduct of the petitioner in making a grievance only after the price bid was open, does not merit acceptance. The process by which the petitionercompany has been eliminated from the bid process is illegal and therefore, on the ground that the petitionercompany did not raise grievance after the prebid meeting dated 09.07.2013 is liable to be rejected.
20. Extensive argument has been advanced by the learned Senior Counsel for the respondent no. 4 to indicate that the respondent no. 4 is eligible as a JointVenture partner. Relying on decision in "New Horizon" case, the learned Senior Counsel for the respondent no. 4 submits that it is not necessary that each partner must have all the qualifications and if each of the partners in 21 JointVenture have different qualifications which in totality satisfies the Tender condition, the JointVenture must be held eligible. I am of the opinion that the issue involved in the present writ petition is entirely different. The question is whether the essential condition under Clause 1.9 and Clause 1.12.2.2 could have been modified in prebid meeting. As noticed above, in terms of the Tender document, there has to be a "lead partner" who must have 3 out of 6 essential conditions mentioned in Clause 1.9. It is interesting to note that the respondent no. 4 has described himself as "lead partner" and/or "collaborator" in different affidavits filed by him. The learned Senior Counsel for the respondent no. 4 tries to clarify the same by submitting that respondent no. 4 has been described as "lead partner" only in the sense he was authorised to submit the bid document and take necessary actions in this regard. However, I find that the respondentState of Jharkhand has also described the respondent no. 4 as "prime bidder". Even if all these discrepancies are ignored, the fact remains that in terms of the Tender conditions, partners/collaborators of the JointVenture are required to identify "lead bidder" and the said "lead bidder" must satisfy the condition contained in Clause 1.12.2.2.
21. In "Raunaq International Ltd. Vs. I.V. R. Construction Ltd." reported in 1999 1 SCC 492, it has been indicated that one of the considerations which has to be kept in mind in commercial transactions is price at which the other side is willing to work. It has further been observed by the Hon'ble Supreme Court that past experience of the tenderer and the ability of the tenderer to take follow up action should also be taken into consideration. The petitioner has successfully competed the work order dated 30.07.2011 is a matter of record. It has been directed by the respondentState of Jharkhand to continue the work for another two months after the expiry of term. The learned counsel for the 22 petitioner has submitted that the capability and eligibility of the petitioner company cannot be doubted. Though certain objections have been raised with respect to qualification of the petitionercompany and Mr. Rajesh Shankar, the learned G.A. appearing for the respondentState of Jharkhand has tired to rely on certain communications including the communication of the Deputy Commissioner, Dhanbad to submit that the work of the petitioner company was not satisfactory, I am of the view that had there been any complaint against the petitionercompany, the respondentState of Jharkhand would have taken action for termination of the work order dated 30.07.2011 awarded to the petitioner which has not been done in the present case.
22. The proceeding in the present case indicates that when this matter was heard on 11.11.2013, an order was passed that the petitioner shall not be compelled to hand over the plant to respondent no. 4 and though, the case was listed on as many as 20 occasions before the hearing in the case started on 05.02.2015, the respondentState of Jharkhand did not file an application seeking vacation of interim order dated 11.11.2013. The writ petition was pending in this Court and an interim order was passed by this Court however, the respondentState of Jharkhand handed over the work for Maithan Project to the respondent no. 4, without seeking permission from this Court. I am of the opinion that the respondentState of Jharkhand is not justified in handing over a part of the work to respondent no. 4, without seeking permission of the Court. The contention of the learned Senior Counsel for the respondent no. 4 that since the respondent no. 4 has satisfactorily executed the work for Maithan Project for more than one year, if this Court interferes in the present proceeding, it may not be in the public interest, is liable to be rejected. The bid of the respondent no. 4 has been accepted in breach of mandatory conditions of the Tender. It is in the public 23 interest that the Government adheres to the conditions of the contract and does not act in breach of the same. The submission that in cases where a single bid is found acceptable, work under the Tender cannot be awarded to the tenderer is also misconceived. There is no such absolute law. After the Court finds that the writ petitioner was illegally eliminated, it is entitled for award of work under the Tender.
23. In view of the above discussion, I am of the opinion that the writ petition deserves to be allowed and accordingly, it is allowed. The agreement with the petitioner should be executed with effect from 17.10.2013, that is, the date of execution of agreement with respondent no. 4. The interim order dated 11.11.2013 is discharged.
(Shree Chandrashekhar, J.) Manish/Amit/Satyarthi/A.F.R.