Raman Kumar vs State Of H.P. & Others on 15 October, 2020

[Cites 12, Cited by 81]

Himachal Pradesh High Court

Raman Kumar vs State Of H.P. & Others on 15 October, 2020

Bench: Sandeep Sharma

            IN THE HIGH COURT OF HIMACHAL PRADESH
                            SHIMLA

                                     CWP No.1006 of          2020
                               Judgment Reserved on: 05.10.2020




                                                                             .
                                   Date of decision: 15.10.2020





    Raman Kumar                                                           ....Petitioner
                                                Versus





    State of H.P. & Others                                                ....Respondents

    Coram
    The Hon'ble Mr.Justice Sandeep Sharma, Judge.





    Whether approved for reporting ?1                    Yes.
    For the Petitioner:                         Mr.J.S. Bhogal, Senior Advocate with
                                                Mr.Bhuvnesh Sharma, Advocate.

    For Respondents No.1 to 4: Mr.Ashok Sharma, Advocate General
                                                with Mr.Sudhir Bhatnagar and

                                                Mr.Arvind Sharma, Additional
                                                Advocates General and Mr.Kunal
                                                Thakur, Deputy Advocate General.
    For Respondent No.5:                        Mr.Anup Rattan, Advocate.



    Sandeep Sharma,J.

By way of present writ petition challenge has been laid to the decision taken by respondents, whereby technical bid of the petitioner has been rejected for not submitting the requisite experience certificate.

2. For having bird's eye view, certain undisputed facts, as emerged from the record, are that the respondent-department of Irrigation and Public Health (for short "IPH") through Executive Engineer, IPH Una-II, issued tender notice dated 18.11.2019 (Annexure P-3) for construction of rain, water harvesting structure 1 Whether the reporters of Local Papers may be allowed to see the judgement?

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for irrigation of land situated in village Deehar, Charoli, Chamboa and Dhanet Panchayat in Tehsil Bangana, District Una, H.P. alongwith Hydraulic and Structural Drawing and Designs quoting .

estimated cost of construction to the tune of Rs.1,97,93,880/-.

3. "Pre-qualification of the Bidders" and "Similar Works"

have been provided/defined in the Notice Inviting Tender dated 18.11.2019 (for short "NIT"), which read as follows:-

"(iv) (a) Pre-Qualification of the Bidders: - The contractor/bidder must have successfully completed during the last seven years

(i) Three similar works costing each not less than 40% of the amount put to Tender i.e. Rs.79,17550/-

(ii) Two similar works costing each not less than 50% of the amount put to Tender i.e. Rs.98,96,940/-

(iii) One similar work costing not less than 80% of the amount put to Tender i.e. Rs.1,58,35,104/-.

(c) The list of works similar in nature executed by the intending contractor/firm alongwith the performance certificates from the competent authority under which the work was executed must be uploaded on the web site and hard copies of the same be produced at the time of opening the tender. The work executed for Central/State Govt.Department/Public Sector Undertaking shall only be considered.

(d) The average annual financial turn over during the last three years ending 31st March of the previous financial years should be at least 30% of the estimated cost of the present work i.e. Rs.59,38,164/-"

4. Though pursuant to aforesaid NIT, petitioner submitted his application with all the requisite documents, but ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 3 vide communication dated 1.1.2020 (Annexure P-6) aforesaid NIT was cancelled. Subsequent to cancellation of earlier tender dated 18.11.2019 (Annexure P-3), respondents invited fresh tender for .

the same work on 7.1.2020 (Annexure P-7) wherein definition of "Similar Work" as was given in earlier tender came to be changed/modified in the following manner:-

"(iv) (a) Pre-Qualification of the Bidders: - The contractor/bidder must have successfully completed during the last seven years

(i) Three similar works costing each not less than 40% of the amount put to Tender i.e. Rs.79,17550/- out of which at least one work should be similar work.

(ii) Two similar works costing each not less than 50% of the amount put to Tender i.e. Rs.98,96,940/- out of which at least one work should be similar work.

(iii) One similar work costing not less than 80% of the amount put to Tender i.e. Rs.1,58,35,104/-.

(b) Similar work means:- Similar work means that the Contractor/Firm/Company must have executed the works involving construction of RWHS/Dams, Diversion weir, Barrage, Intake structure, Headwork/Regulator, Major structures involving mass concrete i.e. RCC work like WTPs, STPs, OHSRs, Bridges and Aqueducts

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5. Date of opening the technical bid, as per fresh NIT (Annexure P-7), though was prescribed as 29.1.2020 at 11.30 A.M., but the date of financial bid was to be intimated separately.

.

Petitioner alongwith respondent No.5 applied for work in question in terms of NIT dated 7.1.2020, but fact remains that technical bid having been submitted by him came to be rejected by the Committee constituted for the evaluation of the bids furnished by various contractors including the present petitioner, as is evident from Minutes of Meeting held under the Chairmanship of Chief Engineer, Jal Shakti Vibhag, Hamirpur Zone on 22.2.2020.

Perusal of aforesaid Minutes reveals that technical bid furnished by the petitioner was rejected for not submitting the requisite experience certificate of successfully completed work.

6. Precise allegation/grievance of the petitioner, as emerge from the averments contained in the petition and as has been projected by learned Senior Counsel representing the petitioner during arguments, is that earlier tender dated 18.11.2019 (Annexure P-3) was purposely cancelled with a view to give undue benefit to some of the favourites of respondents-

department. Besides above, there is a specific allegation against the respondent-department that in subsequent tender dated 7.1.2020 respondent-department purposely with a view to accommodate its favourites changed the definition of "similar works". Another grievance of the petitioner is that technical bid having been submitted by him could not be rejected on account of ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 5 non submission of requisite experience certificate because perusal of experience certificate furnished by him clearly suggests that he has done work more than the requirement as has been prescribed .

in the NIT. Petitioner has further alleged that tender in question has not been floated in accordance with the terms and conditions of standard document issued vide Office Memorandum dated 10.1.2020 (Annexure P-10) whereby tender in question is to be floated at 100% amount of the estimated cost/technical sanction amount instead of 75%.

7. While justifying its decision to reject the technical bid furnished by petitioner, respondents in their reply have categorically stated that in pursuance to the tender floated vide NIT document dated 18.11.2019, none of the five participants bidders were found eligible as per the definition of "similar works"

stipulated therein and as such department, with a view to have healthier competition, expanded/broadened the definition of "similar works" by adding some more works to it besides keeping all the works stipulated in the earlier NIT document dated 18.11.2019. Respondents have stated that technical bid submitted in response to NIT document dated 7.1.2020 (Annexure P-7) was to be opened at 11.30 A.M. on 29.1.2020 in the office of the Executive Engineer, I&PH Division No.II, Una (H.P.) by the authorized officer, but, it does not provide anywhere that it will be opened by a Committee comprising of Executive Engineer, IPH Division No.II, Una, Divisional Accounts Officer, Head ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 6 Draughtsman and the Superintendent Grade-II of the said Division and as such bid contained in Cover-1 of all six participating bidders were opened in the office of respondent No.4 .

in accordance with the term and condition No.8 of the NIT (Annexure P-7), whereafter summary of pre-qualification and technical bid was prepared and forwarded to the higher authorities in the respondent-department for deciding the eligibility of participating bidders by the competent authority, who, in the present matter, happens to be the Chief Engineer, Hamirpur Zone.

It has further been averred in the reply that the petitioner has not been found ineligible because of expanding/broadening the base of the definition of the "similar works" rather he has been found ineligible, firstly, for not submitting the requisite experience certificates of successfully completed works, as he submitted the experience certificates of on-going works vide Annexure P-2 (colly.) and secondly, neither of the said experience certificates constitute requisite percentage of 40% or 50% or 80%, as the case may be, of the amount put to tender as required under the terms and conditions of the NIT document dated 7.1.2020 (Annexure P-7).

Respondents have further stated that since Office Memorandum dated 10.1.2020 (Annexure P-10) was issued subsequent to issuance of NIT dated 7.1.2020 (Annexure P-7), there was no occasion to take into consideration changed/proposed terms and conditions in Office Memorandum dated 10.1.2020 while determining the eligibility of bidders, who had submitted bids ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 7 pursuant to NIT issued prior to issuance of Office Memorandum dated 10.1.2020.

8. Mr.J.S. Bhogal, learned Senior counsel assisted by .

Mr.Bhuvnesh Sharma, Advocate, appearing for the petitioner, contended that act of respondent-department in rejecting the technical bid of the petitioner for not submitting requisite work done certificate is against the prevalent practice. Learned Senior counsel while referring to Office Memorandum dated 10.1.2020 (Annexure P-10) contended that since technical bid of tender in question came to be opened on 29.1.2020, Technical Committee, responsible for evaluating technical bids submitted by the petitioner as well as other participants, was required to decide the eligibility on the basis of criteria prescribed in the aforesaid communication dated 10.1.2020. While referring to aforesaid document, learned Senior counsel argued that otherwise also great loss has been caused to the public exchequer by putting the tender at 75% estimated cost which otherwise ought to have been put at 100% of estimated cost as has been provided in Office Memorandum dated 10.1.2020. Lastly, learned Senior counsel representing the petitioner contended that though work notified in the tender in question is for the estimated cost of Rs.1,97,93,880/-, whereas financial bid of respondent No.5 has been accepted by Rs.6.65 Crores. He further contended that during the pendency of writ petition, vide letter dated 11.6.2020 (Annexure P-12) respondent No.4 has arbitrarily bifurcated the ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 8 aforesaid work into two parts and has awarded the work of Rain Water Harvesting Structure RWHS-II on Chapiah Khad for an amount of Rs.3,54,00,000/-, ignoring the fact that the estimated .

cost of the work under tender is less than Rs.two crores and as such decision of respondent-department to accept the tender of respondent No.5 smacks of extraneous consideration and as such may be quashed and set aside.

9. Mr.Ashok Sharma, learned Advocate General, while supporting the decision of respondents, contended that since the petitioner has approached this Court in the instant proceedings after having participated in selection process, it is not open for him to lay challenge to terms and conditions of the NIT which are otherwise legal. He argued that the petition is not maintainable because the petitioner does not fulfill the eligibility criteria and has been rightly kept out of consideration of the evaluation after the technical bids and as such petition having been filed by him may be rejected.

10. I have heard learned counsel for the parties and gone through the record of the case.

11. It is well settled by now that the Courts would normally not interfere in the tender/contractual matters while exercising powers of judicial review. Power of judicial review can only be exercised by constitutional Courts, if it is proved on record that process adopted or decision so made by the Authorities is intended to favour someone or the Authority has ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 9 acted with malafide or decision made is so arbitrary and irrational that no responsible authority acting reasonably could have reached. Needless to say that Court can also exercise .

power of judicial review in case it is shown that public interest is affected.

12. Hon'ble Apex Court in Air India Ltd. versus Cochin International Airport Ltd. (2000) 2 SCC 617 has ruled that even when some defect is found in the decision-

making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene.

13. Hon'ble Apex Court, in Michigan Rubber (India) Limited versus State of Karnataka and others, (2012) 8 SCC 216, has held that the Government undertakings should have a free hand while framing terms and conditions and Courts should only interfere in case there is material on record to demonstrate that same are arbitrary, discriminatory, malafide or actuated by bias.

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14. In case titled: Reliance Telecom Ltd. & Anr. v Union of India & Anr, 2017 SCC OnLine 36 the Hon'ble Apex Court has held that the condition to put a cap and make a .

classification not allowing certain entities to bid is not an arbitrary one as it is based on the acceptable rationale of serving the cause of public interest. In the aforesaid judgment, Hon'ble Apex Court has further held that aforesaid exercise allows new entrants and enable the existing entities to increase their cap to make the service more efficient. Moreover, the Court cannot get and dwell as an appellate authority into complex economic issues on the foundation of competitors advancing the contention that they were not allowed to bid in certain spheres.

Hon'ble Apex Court, in the aforesaid case has further approved the action of the authorities concerned, who put stringent conditions to ensure competition in the market by preventing large/big operators from acquiring large amount of spectrum.

15. The Hon'ble Apex Court in Central Coalfields Limited v. SLL-SML (Joint Venture Consortium), AIR 2016 SCW 3814, has held that Court can go into the question of malafides raised by a litigant, but in order to succeed, much more than a mere allegation is required. Bald and unfounded allegations of malafides are not sustainable and that malafides must be specifically pleaded and proved.

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16. Careful perusal of expositions of law, as discussed herein above, certainly suggests that Courts should normally not interfere in the contractual matters in exercise of powers of .

judicial review and it can only be exercised in case it is satisfied that process adopted was malafide or made to favour someone or process adopted or decision made is so arbitrary that no man of ordinary prudence could have reached.

17. It is well settled by now that every action of the executive/government must be informed with reasons and should be free from arbitrariness. That is very essence of the rationale and its bare minimal requirement and, to the application of this principle, it make no difference whether exercise of the powers involved an affectation of some right or denial of some privilege. In Tata Cellular versus Union of India, (1994) 6 SCC 651, it has been specifically held that if an administrative decision, such as a deviation in the terms of the NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken. Similarly, the Courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation.

18. Taking note of aforesaid principle laid down in Tata Cellular's case (supra), Hon'ble Apex Court in its subsequent judgment rendered in Central Coalfields Limited v. SLL-SML ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 12 (Joint Venture Consortium) (supra), reiterated that Court, while exercising its power under Article 226 in tender/contractual maters, should pose to itself following .

questions:

"(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

Or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonable and in accordance with relevant law could have reached";

(ii) Whether public interest is affected."

19. Hon'ble Apex Court, while framing aforesaid questions, categorically held that if answers to aforesaid questions are in negative, in that eventuality, Court should not be inclined to interfere in the contractual matters, while exercising powers under Article 226 of the Constitution of India. In this regard, reliance is placed on the judgment of Hon'ble Apex Court in Central Coalfields Limited and another vs. SLL-SML(Joint Venture Consortium) and others, (2016) 8 SCC 622, wherein the Hon'ble Apex Court has held as under:-

36. It was further held that if others (such as the appellant in that case) were aware that non-

fulfillment of the eligibility condition of being a registered II Class hotelier would not be a bar for consideration, they too would have submitted a tender, but were prevented from doing so due to the eligibility condition, which was relaxed in the case of respondents 4. This resulted in unequal treatment in favour of respondents 4 â " treatment that was constitutionally ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 13 impermissible. Expounding on this, it was held:

â œIt is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the .

individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege.â (Emphasis given)

43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and re-

introducing the privilege-of-participation principle and the level playing field concept, this Court laid emphasis on the decision making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three-judge decision inTata Cellular v. Union of India,(1994) 6 SCC 651which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of the NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken. Similarly, the Courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular) in Jagdish Mandal v. State of Orissa,(2007) 14 SCC 517in the following words:

"22.œJudicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract isbona fideand is in public interest, courts will not, in exercise ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 14 of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual .

disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold."

This Court then laid down the questions that ought to be asked in such a situation. It was said:

"22. ...Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226."

20. The Hon'ble Apex Court in Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818, has held that a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 15 intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision. The owner or the .

employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. r

21. Recently, Hon'ble Apex Court in Silppi Constructions Contractors vs. Union of India and another etc. etc. (2019) 11 Scale 592, having taken note of aforesaid judgments, as has been discussed in the earlier part of the judgment, has reiterated that writ court should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved.

22. Most recently this Court in Caretel Infotech Limited vs. Hindustan Petroleum Corporation Limited and Others (2019)6 Scale 70 observed that this Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters.

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This Court is normally loathe to interfere in contractual matters unless a clear- cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many .

public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.

23. Similar reiteration of law can be found in another recent judgment of the Hon'ble Supreme Court in M/s N. ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 17 Ramachandra Reddy vs. State of Telangana and others, AIR 2019 SC 4182.

24. Having taken note of the aforesaid law laid down by .

Hon'ble Apex Court in its various judgments, this Court finds that if an administrative decision, such as a deviation in the terms of the NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken.

Similarly, it stands duly settled by now that authorities are well within their rights to prescribe particular standards terms and conditions, which may be relevant/required for execution of the work sought to be executed by way of awarding contract.

25. Since none of the five participating bidders in earlier tender dated 18.11.2019 (Annexure P-3) were found eligible as per definition of "similar work" stipulated therein, no fault, if any, can be found with the action of the respondent inasmuch as it notified fresh NIT for the same work dated 7.1.2020 (Annexure P-7).

Though petitioner in the case at hand claimed that in subsequent tender, respondents changed the definition of "similar work" with a view to extend undue benefit to some of its favourites, but having carefully perused definition of "similar work", as provided in the subsequent tender (Annexure P-7), this Court finds that the definition of term "similar work" was not changed in subsequent tender, rather same was expanded/broadened by adding some more work to it besides keeping all the works as were stipulated in the earlier NIT document dated 18.11.2019. Since none of the ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 18 participating bidders were found eligible as per definition of "similar work" stipulated in earlier tender dated 18.11.2019, respondents expanded/broadened the definition of term "similar .

work" by adding some more works, which action of it by no stretch of imagination can be said to be arbitrary and unreasonable;

especially when technical bid of the petitioner has not been rejected on the ground of his having not done "similar works"

rather it appears to be taken in larger public interest and as such cannot be interfered.

26. Similarly, this Court finds from the record that technical bid furnished by the petitioner alongwith other contractors was evaluated by the Committee headed by Chief Engineer, Jal Shakti Vibhag, Hamirpur, which was otherwise competent to evaluate the tender in question, because estimated cost put to tender being Rs.1.97 Crore i.e. more than Rs.1.5 Crore, falls within the competency of the Chief Engineer, as is evident from copy of Notification No. Fin(c)A(2)-4/96 of March, 2014 prescribing the powers of various officers to approve the DNIT/Agreement etc. (Annexure R-1) and as such there is no merit in the claim of the petitioner that the Committee, which evaluated the technical bid in question, was incompetent to evaluate the technical bid. Otherwise also, careful perusal of Annexure P-8 i.e. Minutes of Meeting held under Chairmanship of Chief Engineer, Jal Shakti Vibhag, Hamiropur, reveals that all tenders, pursuant to NIT dated 7.1.2020, were evaluated by the aforesaid Committee ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 19 and technical bid submitted by the petitioner came to be rejected for not furnishing the requisite experience certificate for successfully completed work.

27. Though during arguments Mr.J.S. Bhogal, learned Senior Counsel appearing for the petitioner, while making this Court to peruse Annexure P-2, strenuously argued that the aforesaid decision of the Committee, whereby technical bid of the petitioner came to be rejected on account of non submission of requisite experience certificate, is contrary to the documents available on record, but having perused experience certificates furnished by the petitioner alongwith his technical bid, this Court finds that same are of the work which are still in progress and have not been completed. Though total value of works executed by the petitioner up to the date of issuance of certificate suggests that the same is more than the amount of 50% of the amount put to tender but since such certificates are qua the works which are in progress, same have been rightly not taken into consideration while evaluating the technical bid submitted by the petitioner.

28. Terms and conditions, as provided in NIT dated 7.1.2020, especially "Pre-qualification of the Bidders" clearly provides that contractor/bidder must have successfully completed during the last seven years two similar works costing each not less than 50% of the amount put to tender i.e. Rs.98,96,940/- out of which at least one work should be similar work. Specific use of words "successfully completed" in the criteria i.e. "Pre-qualification ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 20 of the Bidders" clearly suggests that the certificates pertaining to the works, which stood completed on the date of issuance of certificate, could be taken into consideration while determining the .

eligibility of the bidders and as such no illegality can be said to have been committed by the respondents while rejecting technical bid of the petitioner on the aforesaid ground. Another contention raised by learned Senior Counsel representing the petitioner that technical bids submitted by the bidders including the petitioner were to be evaluated in terms of eligibility criteria prescribed in Office Memorandum dated 10.1.2020 deserves outright rejection being devoid of any merit.

29. True, it is that perusal of aforesaid Office Memorandum dated 10.1.2020 (Annexure P-10) suggests that the contractor/bidder with a view to demonstrate experience of the "similar work" as per eligibility criteria is required to submit the certificate of completion or commissioning of project/work (completed work should not be less than 90%) as the case may be, issued by an officer not below the rank of Executive Engineer.

But, next question, which arises for consideration of this court, is whether conditions contained in Office Memorandum dated 10.1.2020 could be made applicable to the NIT issued prior to issuance of aforesaid Office Memorandum dated 10.1.2020 or not.

30. In the case at hand, admittedly NIT dated 7.1.2020 (Annexure P-7), which is subject of matter of instant petition, was issued much prior to issuance of aforesaid Office Memorandum ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 21 dated 10.1.2020 (Annexure P-10), wherein admittedly condition of experience certificate, as has been mentioned in Office Memorandum dated 10.1.2020, was not mentioned.

31. Though Mr.J.S. Bhogal, learned Senior Counsel representing the petitioner, contended that since tender in question was to be opened on 29.1.2020, eligibility criteria prescribed in Office Memorandum dated 10.1.2020 was required to be taken into consideration while evaluating the technical bid of the tender in question, but having perused Office Memorandum, dated 10.1.2020 in its entirety, this Court finds no force in the aforesaid submission of learned Senior Counsel. Careful perusal of aforesaid Office Memorandum clearly suggests that concerned department having taken note of announcement of various projects under Jal Jiwan Mission and with a view to ensure reasonable competition proposed certain changes in the standard document vide Office Memorandum dated 10.1.2020. Leaving everything aside, clause-7 of aforesaid Office Memorandum itself suggests that the Terms and Conditons contained in this Office Memorandum were to be made applicable for all works henceforth including on recalled tenders.

32. Mr.Ashok Sharma, learned Advocate General, while making this Court to peruse the aforesaid Office Memorandum, contended that the decision to float tender at 100% amount of the estimated cost instead of 75% as well as other conditions with regard to requirement of experience certificate was to be given ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 22 effect in subsequent tenders and not in the tender which stood advertised/issued prior to issuance of aforesaid communication.

This Court finds sufficient force in aforesaid submission of learned .

Advocate General because the very gist and crux of the aforesaid Office Memorandum itself suggests that the changes proposed in standard documents were to be incorporated/inserted in the tenders which were to be issued after issuance of aforesaid Memorandum and same cannot be made applicable to the tenders which otherwise stood invited. Language applied in clause-7 of aforesaid Memo compels this Court to agree with learned Advocate General that condition of experience certificate as prescribed in aforesaid Memo was to be made applicable henceforth and not to the instant tender which admittedly stood advertised on 7.1.2020.

No doubt, technical bid came to be evaluated on 29.1.2020 by which time aforesaid Office Memorandum dated 10.1.2020 stood issued, but, as has been observed hereinabove, conditions contained therein could not be enforced till the time those were incorporated/inserted in the tender document. Needless to say that one particular tender is governed/evaluated on the basis of terms and conditions contained in that NIT. Any condition imposed after issuance of NIT cannot be taken into consideration while determining the eligibility, save and except, by way of corrigendum which may be issued in continuation of NIT itself.

33. Leaving everything aside, bid/tender is always to be evaluated/governed by the terms and conditions in the NIT. Any ::: Downloaded on - 16/10/2020 20:18:33 :::HCHP 23 condition unless made part of NIT cannot be taken into consideration while determining the eligibility criteria of the tenders and as such no illegality can be said to have been .

committed by the respondents while not placing reliance upon changes proposed to be made in the standard documents by way of Office Memorandum dated 10.1.2020.

34. Consequently, in view of detailed discussion supra as well as law discussed hereinabove, this Court is convinced that petitioner does not fulfill the eligibility criteria as per NIT and it is the prerogative of the respondent/Tender Approving Authority to include any term and condition as per the requirement of the work to be executed. Accordingly, this petition is dismissed being devoid of any merit.

35. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.

    15th October, 2020                                       (Sandeep Sharma)





          (aks)                                                   Judge





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Himachal Pradesh High Court