Rajasthan High Court - Jodhpur
M/S Choudhary Construction Company vs State Of Rajasthan & Ors on 22 November, 2016
Author: Sandeep Mehta
Bench: Sandeep Mehta
CIVIL WRIT (CW) No. 12475 of 2016
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
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CIVIL WRIT (CW) No. 12475 of 2016
PETITIONER:
M/s. Choudhary Construction Company
A registered proprietorship firm situated at
Mohan Vatika, Churu Bypass,
Village Post Fadanpura, Fatehpur Shekhawati,
Sikar.
VERSUS
RESPONDENTS:
1. The State of Rajasthan
through the Chief Engineer (PMGSY)
Public Works Department , Jaipur
2. Additional Chief Engineer
Public Works Department
Zone- Bikaner.
3. Executive Engineer,
Public Works Department
Zone- Ratangarh .
Date of Judgment : 22.11.2016
HON'BLE MR. SANDEEP MEHTA,J.
MS. REKHA BORANA, for the Petitioner.
MR. MUKESH DAVE ) for the Respondents
MR. SS RATHORE )
CIVIL WRIT (CW) No. 12475 of 2016
2
JUDGMENT
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Heard learned counsel for the parties. Perused the material available on record.
The petitioner herein is a contractor/firm registered with the State Government. The instant writ petition has been preferred for assailing action of the respondents in rejecting the petitioner's bid in a tender process for construction of rural roads in the Districts of Rajasthan under Pradhan Mantri Gram Sadak Yojana (for short, 'PMGSY'). The questioned NIT was issued on 25.4.2016 and online bids were invited for a total of 538 roads falling under PMGSY. Initially the stipulated date of receiving the bids was 28.6.2016 and that of opening of bids was 30.6.2016 but thereafter, vide notification dated 23.6.2016, these dates were changed to 8.7.2016 and 11.7.2016 respectively.
The petitioner submitted its bid on 8.7.2016 for certain packages of works and its bid was found responsive and was admitted qua the package No.RJ- 11-70 for "Construction of Road" under PMGSY-I (Batch-I, 2016-17) in Distt. Churu. The result of technical bid was notified by the Additional Chief CIVIL WRIT (CW) No. 12475 of 2016 3 Engineer to the Superintending Engineer vide letter dated 29.7.2016. As per this letter, two bidders including the petitioner were found to be "responsive" in the technical bids. On 1.8.2016, financial bids were opened and the rate quoted by the petitioner firm was found to be -16.21% and the rate quoted by the other responsive firm namely, Ram Niwas & Company was
-13.1% below the G-Schedule. Bid of the petitioner firm being lowest was accepted and forwarded to the competent authority for sanction. Vide letter dated 17.8.2016, the Additional Chief Engineer accorded the requisite sanction and directed the Executive Engineer to issue a letter of acceptance/work order in the petitioner's favour. The petitioner firm was waiting for the formal acceptance/work order pursuant to acceptance of its bid but no information was received from the department. On oral inquiry, the petitioner's representative was informed that its tender had been rejected by the Additional Chief Engineer. However, no written information/communication regarding rejection of its bid or the reasons thereof has been provided to the petitioner firm till date. Upon this, the petitioner sought information under the Right to Information Act CIVIL WRIT (CW) No. 12475 of 2016 4 and was informed that its bid had been rejected by the Additional Chief Engineer on 26.8.2016 under the pretext that the registration certificate of the petitioner firm under the Employees Provident Fund & Misc. Provisions Act, 1952 (for short 'the EPF Act') was not uploaded online along with the tender document. Thereafter, fresh tenders were invited for 25 works including the disputed one in which the petitioner had applied. At that stage, the petitioner approached this Court invoking writ jurisdiction for challenging the impugned action of the respondents in rejecting the petitioner's bid.
This Court, while entertaining the writ petition and after hearing the learned counsel for the parties, by order dated 26.10.2016 restrained the respondents from proceeding further with the fresh tender process.
The respondents have filed a reply to the writ petition wherein a specific plea is taken that it was mandatory to mention the fact of Employees Provident Fund Organisation (EPFO) registration in the tender form and so also to upload the EPFO registration certificate online along with the e-tender in terms of Clauses 4.1.1, 12.1 and 12.2 of the ITB which govern CIVIL WRIT (CW) No. 12475 of 2016 5 the standard bidding procedure as formulated by the National Rural Roads Development Agency constituted under the auspices of Ministry of Rural Development, Government of India. Admittedly, the petitioner did not submit the registration certificate and rather, only uploaded its application for EPFO registration online along with the bid. As such, the petitioner is not qualified and was not entitled to participate in the questioned tender process as per the terms and conditions of ITB and the standard bid document (SBD). Thus, as per the respondents, the action taken by the authorities while rejecting the petitioner's bid is perfectly legal and justified. However, specific assertion of the petitioner regarding rejection of its bid without intimation and without providing any opportunity of hearing and the fact that such rejection order was never communicated to the petitioner by the authorities, is not denied in the reply.
The petitioner, along with its additional affidavit has placed on record copy of the work order issued to one Ramchandra Singh contractor. The said firm was granted the work order by the respondents despite the fact that it also uploaded only the application for EFPO CIVIL WRIT (CW) No. 12475 of 2016 6 registration as against the actual registration certificate along with its bid alike the petitioner and thus, disparity in action is attributed to the authorities. These specific facts mentioned in the additional affidavit were not controverted by the respondents.
Ms.Rekha Borana, learned counsel for the petitioner urged that there is no justification or rationale behind the action of the respondents in rejecting the petitioner's bid after having accepted it and moreso, when the impugned action was not preceded by any opportunity of hearing or notice whatsoever. She placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Rashmi Metaliks Ltd. and another. vs. Kolkata Metropolitan Development Authority and others reported in (2013) 10 SCC 95 and urged that uploading information about the EPFO registration is not an essential requirement of the tender. Only the basic qualifications for consideration of bid/offer can be termed as essential requirements. Other requirements would be collateral and non-compliance thereof would not disqualify the bid/offer. She referred to the averments made in the additional affidavit that the firm CIVIL WRIT (CW) No. 12475 of 2016 7 Ramchandra Singh also submitted only the EPFO registration application with the bid but still was granted the work order. She thus contended that action of the respondents is arbitrary, partisan, discriminatory and grossly violative of principles of equality enshrined in Article 14 of the Constitution of India and, therefore, the writ petition should be allowed and the respondents be mandated to issue work order to the petitioner consequent to acceptance of its technical and financial bids.
Per contra, learned counsel representing the respondent State vehemently opposed the submissions advanced by the petitioner's counsel and urged that as the petitioner admittedly did not upload the EPFO registration certificate online along with the Tender Form, the competent authority was perfectly justified in rejecting its bid. However, they could not controvert the fact that decision to reject the bid was not preceded by any notice or intimation whatsoever. Furthermore, specific averment made on behalf of the petitioner in the additional affidavit, referred to supra, that a similarly placed contractor Ramchandra Singh, who too did not submit its registration certificate online, and CIVIL WRIT (CW) No. 12475 of 2016 8 rather only uploaded the registration application under the EPF Act with its bid alike the petitioner, but still has been issued the work order and is being allowed to execute the work without any adverse action as in the petitioner's case, was not disputed by the respondents.
Final arguments were heard on 10.11.2016. During the course of arguments, the officer-in-charge was present in the Court along with the record as well as the technical material to assist the Court. A clear averment is made by the petitioner in the writ petition that the application for registration in the EPFO was uploaded along with the tender form as required under the ITB. However, the bid was to be filled online and there was no column in the standard tender form where the EPFO registration certificate number could be inserted by the applying bidder. In order to buttress this contention, learned counsel for the petitioner drew the attention of this Court to the document Annex.15 (filed along with the additional affidavit of the petitioner) being the statement of potential bid assessment done by the respondents. In column no.4 of such assessment against the name of the petitioner, it is clearly mentioned that the PF registration CIVIL WRIT (CW) No. 12475 of 2016 9 certificate as per the SBD was enclosed by the bidder. It is after this assessment that the petitioner's bid was marked as responsive.
An emphatic case has set up by the petitioner regarding material ambiguity in the bidding procedure by alleging that proper information/ opportunity was not given to the bidders for uploading the EPFO registration information/certificate along with the bids and thus, the contractors/firms concerned were prevented from uploading such information along with the bid document. The ITB as well as the Standard Bidding Document are conspicuously silent on the aspect as to whether the registration form was itself to be uploaded or that mere mention of the registration number would amount to sufficient compliance. The petitioner, along with the writ petition has filed a copy of the application for allotment of EPFO registration submitted to the competent authority on 21.6.2016. The registration of the petitioner under the EPF Act was done on 8.7.2016 i.e. on the last date for the submission of online bids. In the communication dated 21.10.2016 (Annex.R/1) issued from the office of Executive Engineer, PWD, Sikar, it is clearly mentioned CIVIL WRIT (CW) No. 12475 of 2016 10 that the petitioner had submitted the application for allotment of registration along with the bid document.
In backdrop of the facts noted herein above, this Court is of the firm opinion that the stance adopted by the respondents that the petitioner firm did not satisfy the mandatory requirement of ITB and SBD by not uploading EPFO registration online is perse not tenable. The only requirement under the ITB and SBD as they stood then was that the applicant should communicate to the authorities regarding the factum of its registration with the EPFO. It is an admitted fact on record that the petitioner, while submitting its online bid uploaded therewith its application for registration under the EPFO. The EPF department registered the petitioner and issued a EPFO registration number to it on 8.7.2016. Thus, as on the last date of submission of the bids, the petitioner had been registered with the EPFO and was substantially compliant with the requirements of ITB.
The learned counsel representing the respondents in consultation with the officer-in-charge present in the Court candidly conceded that the above noted anomaly regarding uploading of EPF information existed in the CIVIL WRIT (CW) No. 12475 of 2016 11 questioned tender process. There was no column in the standard tender document where the EPF registration number could be inserted. Such anomaly has been removed in the subsequent NITs wherein specific and unambiguous instruction has been given to upload EPF registration information along with the bids.
Thus, the argument advanced by learned counsel for the petitioner that submitting of EPFO information was not an essential ingredient of the bidding process but rather a collateral requirement does not need adjudication. This Court is duly satisfied that the petitioner substantially complied with the requirements of the conditions of the ITB and SBD. The respondent authorities, once having accepted the petitioner's bid after holding it to be compliant with the requisite terms and conditions of the tender procedure are estopped from taking a contrary stand at a later stage and more particularly so, when they have issued work order to another contractor Ramchandra Singh similarly situated to the petitioner whose bid was also accompanied with the application for EPFO registration alike the petitioner. The disparity in action is clearly violative of the Fundamental Right of Equality enshrined under Article CIVIL WRIT (CW) No. 12475 of 2016 12 14 of the Constitution of India. The action of the respondents in rejecting the petitioner's bid is also illegal and smacks of arbitrary highhanded action for the reason that cancellation of the petitioner's bid after once having been accepted was not preceded by any notice or opportunity to show cause and also because such cancellation was never communicated to the petitioner by the respondents. The petitioner's specific case that it received the information regarding rejection of its bid pursuant to information sought under the Right to Information Act is not denied in the reply.
As a consequence of the above discussion, the instant writ petition deserves to be and is hereby allowed. The order Annex.8 dated 26.8.2016 cancelling the petitioner's bid is declared to be illegal, arbitrary, discriminatory and unjust and is hereby quashed and set aside. The respondents are forthwith directed to issue the work order to the petitioner in terms of its successful bid.
Stay petition is also disposed of.
No order as to cost.
( SANDEEP MEHTA ),J.
S.Phophaliya/-