Gujarat High Court
S P Construction vs State Of Gujarat on 20 September, 2018
Bench: S.R.Brahmbhatt, R.P.Dholaria
C/SCA/19246/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19246 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
======================================
1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
made thereunder ?
======================================
S P CONSTRUCTION
Versus
STATE OF GUJARAT
======================================
Appearance:
MR.CHIRAG K SUKHWANI(6603) for the PETITIONER
MR. RONAK RAVAL, AGP for the RESPONDENT Nos. 1, 2
MR RAVINDRA SHAH(1299) for Mr.Nirav Soni, Advocate for the RESPONDENT No. 3
======================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 20/09/2018
Page 1 of 111
C/SCA/19246/2017 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. The petitioner, a registered partnership firm, and government approved contractor, has approached this Court by way of this petition with following prayers:
(a) Your Lordships may be pleased to admit present petition.
(b) Your Lordships may be pleased to issue writ of mandamus or any other appropriate, order or direction by quashing and setting aside the action of Respondent No.1 in disqualifying the petitioner for the works (I) Converting Existing Flow Canal System into Lift Irrigation System of Direct Minors & it's Sub Minors and Direct Outlets of Main Canal of Bhadar Irrigation Scheme3 of Bhadar Irrigation Scheme, (ii) Extension, Renovation and Modernization work to main Canal of AjiII Irrigation Scheme and
(iii) Extension, Renovation and Modernization work to Bhadar Main Canal between Ch.5050:00 Mt. to 50800.00 Mts. of Section1 and main Canal between Ch.74310.00 mts to 76606.00 mtrs. with D5/R of Section4 of Bhadar Irrigation Scheme (Part3).
(c) Your Lordships may be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction by directing Page 2 of 111 C/SCA/19246/2017 CAV JUDGMENT the Respondent No.1 to qualify the Petitioner for the works mentioned in Para2 of this petition.
(cc) Your Lordships may be pleased to quash and set aside the award of Contract of Extension, Renovation and Modernization work to main Canal of AjiII Irrigation Scheme to Respondent no.3.
(d) By way of interim relief, restrain the Respondent No.1 from accepting the Tender of any other tenderer for (i) Converting Existing Flow Canal System into Lift Irrigation System of Direct Minors & it's Sub Minors and Direct Outlets of Main Canal of Bhadar Irrigation Scheme3 of Bhadar Irrigation Scheme, (ii) Extension, Renovation and Modernization work to main Canal of AjiII Irrigation Scheme and
(iii) Extension, Renovation and Modernization work to Bhadar Main Canal between Ch.5050:00 Mt. To 50800.00 Mts. of Section1 and main Canal between Ch.74310.00 mts to 76606.00 mtrs. with D5/R of Section4 of Bhadar Irrigation Scheme (Part3).
(e) Such other and further reliefs as may be deemed fit in view of the facts and circumstances of the case be granted.
Thus, essentially the petitioner has challenged the action of respondent no.1 in disqualifying the petitioner for the tenders in Page 3 of 111 C/SCA/19246/2017 CAV JUDGMENT question on the ground that the petitioner did not fulfill the eligibility criteria and the petitioner submitted incorrect facts and figures for the same resulting into disqualification for the tenders in question.
2. Facts in brief, as could be culledout from memo of the petition deserve to be setout as under.
2.1 The petitioner is a registered partnership firm having A Class Registration with Executive Engineer, Rajkot Irrigation Project Division. The petitioner carries on business as government approved contractor. The respondent no.1 invited tenders for the following works:
(i) Converting Existing Flow Canal System into Lift Irrigation System of Direct Minors & it's Sub Minors and Direct Outlets of Main Canal of Bhadar Irrigation Scheme3 of Bhadar Irrigation Scheme.
Estimated cost put to tender Rs.5,60,80,822.05 Earnest Money deposit Rs.5,61,000.00 Last date of downloading of tender Dt.17/09/2017 upto 18:00 Hrs. (IST) Last date of online submission of P.Q. and price bid Dt.17/09/2017 upto 18:00 Hrs. (IST) Date of opening (Online) (A) PreQualification Bid Dt.18/09/2017 at 12:00 Hrs.
The last date of online submission of P.Q. And Price bid was extended upto 19th September 2017.
(ii) Extension, Renovation and Modernization work to main Canal of AjiII Irrigation Scheme.
Page 4 of 111 C/SCA/19246/2017 CAV JUDGMENTEstimated cost put to tender Rs.3,69,76,379.05 Earnest Money deposit Rs.3,69,800.00 Last date of downloading of tender Dt.17/09/2017 upto 18:00 Hrs. (IST) Last date of online submission of P.Q. and price bid Dt.17/09/2017 upto 18:00 Hrs. (IST) Date of opening (Online) (A) PreQualification Bid Dt.18/09/2017 at 12:00 Hrs.
The last date of online submission of P.Q. and Price Bid was extended upto 19th September 2017.
(iii) Extension, Renovation and Modernization work to Bhadar Main Canal between Ch.5050:00 Mt. to 50800.00 Mts. Of Section1 and main Canal between Ch.74310.00 mts to 76606.00 mtrs. with D5/R of Section4 of Bhadar Irrigation Scheme (Part3).
Estimated cost put to tender Rs.5,25,64,319.00 Earnest Money deposit Rs.5,25,700.00 Last date of downloading of tender Dt.04/10/2017 upto 18:00 Hrs.(IST) Last date of online submission of P.Q. and price bid Dt.04/10/2017 upto 18:00 Hrs.(IST) Date of opening (Online) (A) PreQualification Bid Dt.05/10/2017 at 12:00 Hrs.
The preliminary stage evaluation is done whereas the Technical Bids are not opened. The disqualification appeared on the website on 4th October 2017.
(iv) It stated by the petitioner that the petitioner had been disqualified for the work at Sr.No.(i) and Sr.No.(ii) on the ground that Form3(A) submitted for ERM work for Right & Left Bank Canal System of Sani Irrigation Scheme was not genuine. The petitioner wrote a letter Page 5 of 111 C/SCA/19246/2017 CAV JUDGMENT dated 5th October 2010 to respondent no.2 to issue the corrected Form 3(A), as it was disqualified due to some mistake in the Form3(A).
(v) It was further stated by the petitioner that one gentleman Shri Mukesh Chaudhary, the then Executive Engineer issued the acceptance letter on 21st May 2012 to the petitioner. The respondent no.2 issued the work order on 26th June 2012 which bears the signature of Shri Mukesh Chaudhary, the then Executive Engineer who had issued Form3(A). Shri Mukesh Chaudhary, the then Executive Engineer wrote the letter dated 5th July 2013 to Dy. Executive Engineer. He also wrote the letter dated 27th August 2012 to the petitioner, the performance Bond was released by him, the then Executive, Engineer. It is submitted that the signature of Shri Mukesh Chaudhary, can be compared and verified on the completion certificate. As the disqualification of petitioner was based upon erroneous premise the petitioner preferred the present petition.
3. Learned counsel for the petitioner contended that the disqualification based upon the Certificate is erroneous, arbitrary and deserves to be quashed and set aside. The counsel for the petitioner contended that the petitioner has in fact been threatened and prevented from submitting physical document so far as the tender work no.(iii) is concerned and the petitioner was not lowest so far as the work at Sr. No.
(i) was concerned. However, the petitioner was in fact L1 so far as the work of Aji Irrigation System No.2 was concerned and if the eligibility criterion prescribed thereon taken into consideration, then even ignoring from 3A, the petitioner was fulfilling the eligibility criteria and therefore, the petitioner ought not to have been disqualified for the same and it deserves to be granted the work so far as the work at Sr.No.(ii) is concerned.
Page 6 of 111 C/SCA/19246/2017 CAV JUDGMENT4. As against this, detailed affidavits have been filed by the respondent no.1 and respondent no.3 inter alia contending that the petitioner was not qualified and the petitioner suppressed material facts before this Court. The petitioner did not join the proper parties and hence, the petition requires to be dismissed.
5. The respondent no.1 has in fact filed two affidavitsinreply on 6th November 2017 at page no.269 and 18th December 2017. The respondent no.3 has also filed affidavitinreply dated 27th November 2017 at page no.304 in the compilation and surrejoinder affidavit on 30th November 2017 at page no.384. The learned counsels' submissions were in fact based upon the close perusal of those averments and counter averments made in the respective affidavitinreply/rejoinder, surrejoinder and sursurrejoinder and hence, in order to advert to their respective contentions in their own words, this Court is of the opinion that the relevant paragraphs thereof deserves to be reproduced hereunder.
6. The learned counsel for the respondent no.1 invited Court's attention to the relevant averments from their Affidavit in Reply dated 6th November 2017, which are reproduced as under:
"...4. The present petition is filed under Articles 14, 19(1)(g) and 226 of the constitution of India, whereby, the petitioner has prayed to quash and set aside the action of the respondent no. 1 in disqualifying the petitioner for the works (I) Converting existing flow canal system into lift irrigation system of direct minors and its sub minors and direct outlets of main canal of Bhadar Page 7 of 111 C/SCA/19246/2017 CAV JUDGMENT Irrigation Section 3 of Bhadar Irrigation Scheme. (II) Extension, renovation and modernization work to main canal of Aji 2 Irrigation Scheme and (III) extension, renovation and modernization work to Bhadar Main Canal between CH5050.00MT to 508080.00 Mts of Section 1 and main canal between CH.74310.00 Mts to 76606.00 mts with D5R of section 4 of Bhadar Irrigation Schedule (part 3), hereinafter referred to as the works (I), (II) and (III) for the sake of brevity and also prayed to direct the respondent to qualify the petitioner for the work as mentioned in para2 of the petition.
5. It is humbly submitted that the last date of tender download was 17/09/2017 and last date of online submission of p.q. And price bid was 17/09/2017 and date of (opening) pre qualification bid was 18/09/2017 for the work I and II of the tender and for the work III the last date of download of tender was 04/10/2017 and the last date of online submission of p.q. and price bid was 04/10/2017 and date of opening (online) prequalification bid was 05/10/2017.
6. It is denied that the petitioner fulfills the eligibility criteria as specified in section 2 of the tender document. It is also denied that Chief Engineer directed the petitioner not to submit the physical document for work at Serial No. (III).
Page 8 of 111 C/SCA/19246/2017 CAV JUDGMENT7. At the outset, it is humbly submitted that the petitioner is not fulfilling the eligibility criteria so far as the work at Serial No. (I) is concerned and on the ground of form No 3A which has been submitted by the petitioner, which does not mention the correct amount of concrete. It is humbly submitted that as per clause 3(C) {experience of work "a. the contractor should have successfully carried out only government / semi government / public section work shell be considered for the evaluation purpose minimum quantity of working any one year during last seven year 201011 to 201617 - (3 concrete work 2850.00 CuM per year) It is humbly submitted that as per the 3A certificate which has been verified, bill and quantity matches but here in the present case, the concrete works quantity is less than required and that is 2526.20 and therefore, the present petitioner is not eligible for the work. It is also required to be noted that the petitioner was paid as per the quantity and it is in the knowledge of the petitioner that for the year 201314 he has worked 656.20 CuM and not 22630 CuM and accordingly bills are paid and the petitioner herein has tried to take disadvantage of the same. It is humbly submitted that the work of Bhadar I irrigation scheme has been awarded to Indian Construction Company, Jamnagar by order Page 9 of 111 C/SCA/19246/2017 CAV JUDGMENT dated 17.10.17.
8. It is humbly submitted that so far as work at item no. (ii) is concerned, it has been already awarded to Anukul Construction Company, Rajkot by order dated 13.10.2017 and work order dated 16.10.2017 was also issued. The copy of the order dated 16.10.2017 is annexed herewith and marked as Annexure R1.
9. It is humbly submitted that so far as the work at item no. (III) of tender is concerned the same is likely to be allotted to Anukul Construction Co. as the same is lowest first bidder and it is humbly submitted that the present petitioner has not submitted the physical documents for the work at serial no. (iii) of the tender and also as per the requirement of experience of work as per clause 3(C), the required experience of concrete work is 10860.00 cubic mtrs were as the petitioner does not have the same and therefore, present petitioner is not eligible for the contract.
10. The petitioner herein has produced 3(A) certificate for the work of ERM for right and left bank canal system of Sani Irrigation Scheme which was issued by Mr. Chaudhry, Executive Engineer, Jamnagar Division and it was also signed by the present petitioner and in the said 3A certificate, the Page 10 of 111 C/SCA/19246/2017 CAV JUDGMENT concrete quantity mentioned was 22630 CuM for the year 201314 and the same was sent for verification to Executive Engineer Porbandar by communication dated 27.09.2017. The copy of the communication dated 27.09.2017 is annexed herein and marked as Annexure - R II..
11. It is humbly submitted that the Executive Engineer of Porbandar has verified the same and written a communication dated 27.09.2017 to Executive Engineer, Rajkot Division in which he has stated that there is a difference in amount of quantity of concrete works for year 201314 and new form 3A has been supplied with. The copy of the form 3A after verification is annexed herewith and marked as Annexure R IV. It is humbly submitted that therefore, the petitioner has produced false form no.3A whereas the petitioner has done concrete work only for 656.20 CuM and accordingly he was paid and knowing fully well about the said fact, the attempt was made to take an advantage. The copy of the original bill along with the quantity is annexed herewith and marked as Annexure - R V.
12. It is humbly submitted that the petitioner has applied to Executive Engineer Porbandar vide communication dated 5/10/2017 for providing corrected form 3A that is even after the Page 11 of 111 C/SCA/19246/2017 CAV JUDGMENT prequalification opening date for work no. (I) and (II) that is i.e. 20/09/2017 and 05/10.2017 for work no.3 and therefore, also the grievance of the petitioner is baseless and the present petition is required to be dismissed.
13. Even though, knowing fully well the fact that the petitioner has worked for 656.20 CuM concrete work for the year 201314, submitted the false 3A certificate and considering the Section 1, information and instructions for tenders as per clause 1.13, the applicant shall be disqualified if they have I. Made untrue and false representation in the forms, statements and attachments required in the prequalification documents.
It is humbly submitted that the clause 16.1 {3}, "even though the bidder meets the above qualifying criteria, he shall be disqualified, if he has made misleading or false representation in the forms, statements and attachments submitted in proof of the qualification requirement and/or record...........
It is submitted that as per section 1 instruction to contractor as per Section 1.12, "The department reserves the right to qualify or Page 12 of 111 C/SCA/19246/2017 CAV JUDGMENT disqualify without assigning any reason" and as the petitioner has made untrue and false information for the work, the State Government has decided to disqualify the petitioner - bidder for all three works.
14. Considering the above facts and documents on record and conditions of tender, the petitioner does not fulfill the eligibility criterial for work (I) and (III), and the work (II) has already been allotted to the successful bidder and the petitioner has submitted the false details and therefore the State Government has disqualified the petitioner from all the works of the tender and hence, the present petition is required to be dismissed in the interest of justice."
7. The petitioner has filed rejoinder affidavit and attempted to controvert the aforesaid contention of respondent no.1. Relevant paragraphs of the affidavitinrejoinder dated 8th November 2017 are reproduced hereunder:
"...2. I say that the offer of petitioner for the work of Converting existing flow canal system into lift irrigation system of direct minors and its subminors and direct outlets of main canal of Bhadar Irrigation Section 3 of Bhadar Irrigation Scheme is not lowest, therefore, petition is not pressed qua work No.i.Page 13 of 111 C/SCA/19246/2017 CAV JUDGMENT
I say that the petitioner was not permitted to submit the physical documents for the work of extension, renovation and modernization work to Bhadar main canal between CH5050.00 MT to 50800.00 Mts of Section 1 and main canal between CH74310.00 Mts to 76606.00 Mts with D5R of Section 4 of Bhadar Irrigation Scheme (part3) is pending at Government level, therefore, unless the Hon'ble Court directs the respondent no. 1 and 2 to accept the documents of petitioner no submissions are made at this stage for work No. iii.
I say that so far work at serial no. ii is concerned i.e. Extension, renovation and modernization work to main canal of Aji 2 Irrigation Scheme the offer of the petitioner is Rs.3,65,85,919.72, annexed herewith marked AnnexureI is the copy of n procure. I further say that the offer of the respondent no.3 is Rs.3,69,76,379.51 annexed herewith marked Annexure - J is the copy of office order.
I say that there is difference of Rs.3,90,459.80 between the petitioner and respondent No.3 for the work at serial no. ii.
I say that as per the qualification criteria (C) Experience of Work.
(a) The contractor should have successfully carried Page 14 of 111 C/SCA/19246/2017 CAV JUDGMENT out minimum quantity of working any one year during last seven years 201011 to 201617 as under.
1) Excavation, earthworks - 17900 Cum per year
2) Concrete lining works - 93,500 Sq. mts. per year.
I say that as against minimum quantity to the petitioner has executed the following quantities as certified by Respondent No.2.
1) Excavation, earthworks63208 Cum. In 201415.
2) Concrete lining works - 107024 Sq. mts. In 201415.
I say that therefore, the petitioner could not have been disqualified for the work at serial no. ii.
6. With respect to Para No.6, I say that the fact revealed that the Chief Engineer directed the petitioner not to submit physical document for work at serial No. iii as the threat was given that petitioner will be black listed in case the physical documents are submitted otherwise there was no reason for the petitioner not to submit physical documents when the online tender was submitted and all the documents were uploaded online.
7. With respect to Para No. 7, I say that the petition is not pressed for work at serial No. I as the offer of the petitioner is not lowest.
Page 15 of 111 C/SCA/19246/2017 CAV JUDGMENT8. With respect to Para No. 8, I say that the Respondent No.2 was served on 16/10/2017 and the work order is also issued on 16/10/2017 by correcting the date on the work order.
9. With respect to Para 9, I say that the allegations made therein are not true and not correct. I further say that fact revealed that the Chief Engineer directed the petitioner not to submit physical document for work at serial no. III as the threat was given that petitioner will be black listed in case the physical documents are submitted otherwise there was no reason for the petitioner not to submit physical documents when the online tender was submitted and all the documents were uploaded online.
10. With respect to Para No. 10, I say that the petitioner also requested the Executive Engineer, by letter dated 05/10/2017 to issue the correct Form 3(A), however, the corrected Form 3(A) is not issued by the concerned Executive Engineer till dated. It is pertinent to note that no contractor will remember how much quantity of a particular item is executed of a particular contract in a particular year.
11. With respect to Para No.11, I say that even if the Form 3A issued for the work of ERM is not considered, the petitioner meet with the minimum Page 16 of 111 C/SCA/19246/2017 CAV JUDGMENT criteria as stated above.
12. With respect to para no.12, I say that to show the bonafide the petitioner requested by letter dated 05.10.2017 but no reply was given by the concerned Executive Engineer. It is absolutely incorrect to say that the petition is required to be dismissed as alleged.
13. With respect to Para No.13, I submit that the allegations made therein are not true and not correct. It is not true and correct to say that the false 3A certificate was submitted by the petitioner. I say that the Form 3A certificate as issued by the concerned Executive Engineer was submitted. Without prejudice, I say that the petitioner is qualified even on the certificate issued by the Respondent No.2, therefore, the certificate Form 3A for ERM work may not be considered. I say that there is no untrue statement on the part of the petitioner, therefore, there is no question of disqualifying the petitioner for any of the works.
8. The respondent no.3 vehemently submitted that the petitioner has deliberately not joined all the concerned bidders despite the fact that the petitioner had a knowledge and information about the same. The petitioner has approached this Court with suppression of fact and therefore, the petition is required to be dismissed on this ground also. Learned counsel for the respondent no.3 has in fact invited Court's Page 17 of 111 C/SCA/19246/2017 CAV JUDGMENT attention to the relevant paragraphs from the AffidavitinReply dated 27th November 2017, which are reproduced hereunder:
"...9. It is submitted that the petition against the answering Respondent is not maintainable inasmuch as the answering Respondent is neither the State nor an instrumentality of the State. Further, subject to what is stated hereinafter, the tender as regards extension, renovation and modernization work to main canal of AjiII Irrigation Scheme at AnnexureB is concerned, the same has culminated into awarding of the contract to the Respondent 3 firm by a work order dated 16.10.2017 by the Respondent 1 being a concluded contract in favour of the answering Respondent. The petition therefore deserves to be dismissed.
10. It is submitted that the petition deserves to be dismissed since the Petitioner has not approached the Hon'ble Court bonafide and with clean hands. The Petitioner has suppressed the material fact that so far as the tender being extension, renovation and modernization work to Bhadar Main Canal with D 5/R of Section 4 of Bhadar Irrigation Scheme (Part
3), in the recent past, the Respondent authorities had invited tenders from the prospective bidders on 12.07.2017 which were to be submitted by 11.08.2017. During the process of the said tender, in all six tenderers offered their tenders including the Respondent 3 and the Petitioner herein. It is Page 18 of 111 C/SCA/19246/2017 CAV JUDGMENT submitted on information that the Petitioner herein had failed to qualify for the said tender on the previous occasion also. However, for some reasons unknown to the Respondent 3, the said tender was reinvited by the Respondent Authorities resulting into a second attempt which is also mentioned in the tender document produced by the Petitioner at AnnexureC to the petition. It is therefore clear that though the Petitioner was disqualified for the said tender on the previous occasion, it chose to accept the same by not challenging it, however, since the said tender was reinvited, the Petitioner took its chance again by bidding for the same and having failed to once again to qualify for the same, has maliciously filed for the present petition. The present petition being a gross abuse of process of law and machinery of the Hon'ble Court, deserves to be dismissed with exemplary costs.
11. It is submitted that so far as the tenders at AnnexureA and B are concerned, the same when invited by the Respondent authorities pursuant to a common tender notice B2/04/201718, wherein the last common dates for online submission of prequalification was 17.09.2017, for opening of prequalification bids was 18.09.2017 and the submission of physical documents by the tenderers was from 18.09.2017 to 22.09.2017. The day on which the prequalification bid was opened by the Page 19 of 111 C/SCA/19246/2017 CAV JUDGMENT Respondent authorities i.e. on 18.09.2017, all the tenderers including the answering Respondent and the Petitioner knew about their respective status as regards whether they have been prequalified or not and could further step to the next stage of technical bid and opening of commercial bid. Thus, on 18.09.2017 itself the petitioner was aware that it had failed to prequalify for the tenderes at AnnexureA and B to the petition. That apart, so far as the tender at AnnexureB is concerned, the technical bid and commercial bid were opened online on 05.10.2017 by the Respondent authorities, meaning thereby not only all the tenderers who had bided including he Petitioner and answering Respondent, but everybody else would know that the answering Respondent has succeeded to be the lowest bidder for the tender at AnnexureB and one Indian Construction Company had succeeded to be the lowest bidder for the tender at AnnexureA. The petitioner though being fully aware of the same, as back as on 05.10.2017, maliciously did not join either the said Indian Construction Company or the answering Respondent as the Respondents while filing the present petition on 12.10.2017 so as to misguide and misdirect the Hon'ble Court in their absence. Further, so far as the tender at AnnexureC being second attempt of the Respondent authorities is concerned, the prequalification bid was opened by the Respondent Page 20 of 111 C/SCA/19246/2017 CAV JUDGMENT authorities on 05.10.2017, the day on which the Petitioner became aware of the fact that it had again failed to qualify for the said tender along with one Parth Associates whereas the answering Respondent and one Siddharaj Projects Pvt. Ltd. had passed the test to qualify for the said tender. Despite the same, the petitioner deliberately concealed the said fact in the present petition and while filing the present petition on 12.10.2017, did not join either the answering Respondent or Siddharaj projects Pvt. Ltd. as a party Respondents in the petition. The said conduct of the Petitioner is worth examination more peculiarly in view of the reliefs which have been prayed for by the Petitioner in the present petition which if granted would directly and adversely affect the interest of the answering Respondent. The petition being gross abuse of process of law and machinery of the Hon'ble Court, deserves to be dismissed with exemplary costs.
12. It is submitted that the petition deserves to be dismissed since not only that the petitioner has suppressed the fact but has attempted to mislead and misguide the Hon'ble Court by making incorrect averments that the Petitioner has been wrongly disqualified though it is possessing the requisite qualification for passing through the prequalification bid. It would be worthwhile to point out that as regards all the three tenders which were Page 21 of 111 C/SCA/19246/2017 CAV JUDGMENT invited by the Respondent authorities prescribed the following qualifications for passing the prequalification stage:
Sr. Name of Tender Estimated Cost Prequalification Criteria No. (Rs.) 1 Bhadar1 5,60,80,822.05 1. Excavation, earthwork 1,33,140 CuM/yr Section 3 (AnnexureA) 2. Concrete Lining Works 53,750 Sq.mt/yr
3. Concrete Work 2,850 CuM/yr 2 AjiII, (Annexure 3,69,76,379.51 1. Excavation, earthwork 17,900 CuM/yr B)
2. Concrete Lining Works 93,500 Sq.mt/yr 3 Bhadar1, 5,25,64,319.00 1. Excavation, earthwork 6,950 CuM/yr Section 4 2. Concrete Lining Works 18,020 Sq.mt/yr (AnnexureC)
3. Concrete Work 10,860 CuM/yr
13. It is submitted that having a look at the tender documents at AnnexuresA, B and C, the following instructions, terms and conditions which are relevant herein are common for all the three tenders.
"(1) TENDER NOTICE
4.0 DETAILS TO BE FRUNISHED ALONG WITH
APPLICATION.
Interested bidders can view these tender documents online.....
The intending bidders have to submit the following documents along with the EMD and tender fee.
1) ..... Page 22 of 111 C/SCA/19246/2017 CAV JUDGMENT 6) Bidders have to submit the AnnexureI Notarized and AnnexureII in form of
affidavit on Rs.100/ stamp paper duly notarized in hard copy and online scan copy as per N.W.R.W.S. & K Department, Gandhinagar Order No....... (as per Pre qualification Forms).
6.1 PreBid Conference (Offline) at 12:00 hours on dt. 07/09/2017 in the office of .......... All tenderers are urged to submit a written request immediately upon receipt of the tender documents for the matter where clarification and/or additional information are desired along with the details of work. The request shall be submitted not less than 3 days in advance of the PreBid conference.
9.0 GENERAL INSTRUCTIONS
(e) Government reserves the right accept lowest responsive offer based on evaluation of tender and reject any or all tenders without assigning any reason.
(g) The tenderers are advised to read carefully the "instruction" and "eligibility criteria"
contained in the tender documents.Page 23 of 111 C/SCA/19246/2017 CAV JUDGMENT
(m) The documents which are not uploaded online, but submitted physically (hard copy) will not be considered for prequalification.
(o) The contract should have submit compulsory duly notarized annual turnover and CA certificate and form 3 A/G/Certificate which clearly mentioned the year wise quantity executed and amount paid separately, with countersigned of competent authority, along with Annexure B1 and Annexure B2 and Annexure1.
(emphasis supplied) (2) Section I Instruction to Contractor 8.0 Acceptance of tender Tender which do not fulfill any of the requirements of this tender are liable to be rejected.
9.0 Government is not bound to accept the lowest tender and reserves the right to reject any or all the tender without assigning any reasons thereof.
12.0 Incomplete tender which does not fulfill any of the above conditions will be liable to be rejected.
Page 24 of 111 C/SCA/19246/2017 CAV JUDGMENT13.0 Acceptance of tender will rest with the competent authority who does not bind himself to accept the lowest tender and reserves the right to reject any or all tenders without assigning any reasons thereof, it must be clearly and distinctly understood that the conditions of the contract and specifications shall be rigidly enforced and no relaxations on the grounds of customs shall be allowed.
18.0 Actual days of execution of this work :
The bidder shall note that the period of complete will be 18 (eighteen) months from the date of notice to proceed with the work one of Total Time Limit 10 Months will not available for work considering 3 months for monsoon and 7 months for Canal Running Period, total working period available will be 8 months and idle period would be 10 months.
(3) SECTION 1
INFORMATION AND INSTRUCTIONS
FOR TENDERERS
1.0 SPECIAL ATTENTION
1.6 Tender shall be opened online as per procedure.
1.10 Award of contract will be made to a qualified tenderer whose responsive tender is determined to be the lowest evaluated tender.Page 25 of 111 C/SCA/19246/2017 CAV JUDGMENT
1.11 If required, department may negotiate with the lowest evaluated responsive bidder.
1.12 The department reserves the right to qualify/disqualify any applicant without assigning any reason.
1.13 Applicants shall be disqualified if they have
(i) made untrue and false representation in the forms, statements and attachments required in the prequalification documents; or
(ii) record of poor performance either due to technical or financial or any other reasons.
(emphasis supplied) 8.0 PERIOD OF COMPLETION The bidder shall note that the period of completion will be 18 (eighteen) months from the date of notice to proceed with the work one of total time limit 10 months will not available for work considering 3 months for monsoon and 7 months for canal running period. Total working period available will be 8 months and idle period would be 10 months.
Page 26 of 111 C/SCA/19246/2017 CAV JUDGMENT13.0 ACCOMPANIMENTS TO TENDER
(iv) Declaration showing the details of all works completed in 7 years and works on hand with the contractor and the value of works that remained to be executed in each case in prescribed forms/annexure required for evaluation to qualify the bidder.
(emphasis supplied)
(4) SECTION 2
QUALIFICATION CRITERIA
CAPABILITY TENDERER:
(QUALIFICATION CRITERIA)
1.0 GENERAL
All information requested for ........ However, bidders are cautioned that not giving complete information called for in the tender documents in the form required or not giving it in clear terms or making any change in the prescribed forms may result in the bidder being summarily disqualified.
1.2 References, information and certificates from the respective clients certifying suitability, technical knowhow or capability of the bidder shall be signed by that client, in full with his name, underneath in block letter and Page 27 of 111 C/SCA/19246/2017 CAV JUDGMENT designation in that organization.
1.3 No further information will be entertained after submission of tender documents unless it is called for by the Government.
2.0 TENDERER SHALL INCLUDE WITH HIS TENDER :
2.1 Accompaniment to tender documents.
(d) Supporting documents:
1. AnnexureA Details of work and
magnitude carried out
in the last 7 years
(20102011 to 2016
17)
17. Annexure2 Affidavit to be provided
by the Contractor to
WR Department.
18. StatementS1(a) Details of the work of magnitude carried out for Excavation and Earth Work.
19. StatementS1 (b) Details of the work of magnitude carried out for canal lining work.
20. StatementS1 (c) Details of the work of [Except tender magnitude carried out at AnnexB] for concrete work.
21. Form3(A) Work wise details of work completed or in progress by the contractor.
3.0 ELIGIBILITY OF PREQUALIFICATION 3.1 The intending bidders are hereby informed to furnish the information in Page 28 of 111 C/SCA/19246/2017 CAV JUDGMENT the enclosed Annexure"A" to "N", Annexure1 and 2 and Statement S1(c) to S1(c) and Form3(a) duly filled in for qualifying for the bidding. [Except S 1(c) for Tender at AnnexureB] 3.3 The minimum requirements regarding contractors capacity for qualifying as a bidder shall be follows :
(C) EXPERIENCE OF WORK
a) The contractor should have
successfully carried out
minimum quantity of working
any one year during last 7 years
201011 to 201617:
(1) Excavation, Earth Works
Tender1 1,33,140 CuM/yr
[AnnA]
Tender 2 17,900 CuM/yr [Ann
B]
Tender 3 6,950 CuM/yr [AnnC]
(2) Concrete lining works :
Tender 1 53,750 CuM/yr[Ann
A]
Tender 2 93,500 SqM/yr [Ann
B]
Tender 3 18,020 CuM/yr [Ann
C]
(3) Concrete works :
Tender 1 2,850 CuM/yr
Page 29 of 111
C/SCA/19246/2017 CAV JUDGMENT
[AnnA]
Tender 3 10,860 CuM/yr [Ann
C]
Contractor shall indicate the
details of all works carried out
by him and for correctness of
details: contractor shall furnish
the details with certificate of
concerned Executive Engineer
duly attested clearly indicating
year wise quantity of each of the
above mentioned items of work
done during the period 201011
to 201617.
5.0 Evaluation of P.Q. Bids
i) The bidder shall be qualified on the basis of
information furnished by the bidders along with the P.Q. Bids in support of their capability with reference to specified qualification criteria. The bids shall be evaluated to determine its responsiveness as well as capacity of the bidder. The information for the qualification should only be furnished with P.Q. Bid. The information uploaded with price bid shall not be considered for qualification. Any additional information for qualification shall not be accepted after opening of Page 30 of 111 C/SCA/19246/2017 CAV JUDGMENT P.Q. Bid. The decision of the Government shall be considered final.
(emphasis supplied)
iii) Even though the bidder meets above qualifying criteria, he shall be disqualified if he has made misleading or false representation in the forms, statements and attachments submitted in proof of the qualification requirements and/or record of poor performance such as abandoning the work, not properly completing the contract, inordinate delays in completion, litigation history or financial failures, etc.(emphasis supplied) 8.0 Opening of prequalification documents and tenders
a) The prequalification data be assessed and list of qualified bidders will be finalized by competent authority of Government in Narmada Water Resources, Water Supply and Kalpsar Department.
b) The Superintending Engineer, Rajkot Irrigation Circle, Rajkot, District Rajkot will open the technical bid and price bid of only Page 31 of 111 C/SCA/19246/2017 CAV JUDGMENT prequalified bidders in the presence of representative of qualified tenders who will be initiated after finalization of pre qualification documents.
(5) LETTER FOR SUBMISSION OF TENDER To, The Executive Engineer, Rajkot Irrigation Division, ....
Sub: Submission of tender documents for .....
Sir, 2.0 I/We hereby certify that all the statements made and information supplied in the enclosed Forms A to L and accompanying statements are true and correct.
3.0 I/We have furnished all information and details which are necessary for qualification and have no further pertinent information to furnish.
5.0 I/We hereby apply for prequalification for the work.
(6) ANNEXUREA
DETAILS OF THE WORK AND MAGNITUDE
CARRIED OUT IN THE LAST 7 YEARS i.e. 2010 2011 TO 20162017 Sr. Name of Place and Total Annual Turnover ending month, Period of Principle Estimated Maximum No. Work Country Tendered April to March completion feature cost quantity in Cost of for entire one year work Yrs Qty Amt in work ....
Rs.
Val.
Page 32 of 111 C/SCA/19246/2017 CAV JUDGMENT7) ANNEXURE2 Affidavit to be provided by the contractor to W.R. Department on Rs.100/ stamp paper duly notarized.
I/We .............. on oath solemnly undertake.
1.0 That all the information have been provided by us in various formats along with our tender submissions in response to the notice inviting Tender No. ......... relating to the work of ......... are true and correct and represent the factual information required for the pre qualification of the contractor for the subject work.
2.0 That the certificate issued by clients for projects and attached with our tender submissions as evidence of our technical capability, experience of similar projects, work done as well as the financial data for qualification are all valid as issued by the competent authority.
6.0 That we have not suppressed any factual information that was asked for by the W.R. Department or was directly or indirectly required for the purpose of our pre qualification.
Page 33 of 111 C/SCA/19246/2017 CAV JUDGMENT7.0 That we are aware that providing false information, data and documentation as well as suppression of vital information will not only lead to our disqualification for award contract by W.R. Department but W.R. Department shall have all the rights and privilege to initiate criminal action against us."
14. It is submitted that having close look at the aforesaid clauses of the tender documents, it was incumbent upon the petitioner to fill in all the requisite particulars with all the relevant documents in support thereof having correct details and particulars. Further, as could be seen from the Tender Notice and more particularly pointed out hereinabove, from clause 9.0(o), though it was compulsory for the petitioner to have submitted individual Form 3(A) and individual From G Certificate, with all necessary details clearly mentioning the year wise quantity executed and the amount paid separately, the petitioner has deliberately not produced independent FormG Certificate as could be seen from the documents uploaded by the petitioner while submitting the tender and even produced before this Hon'ble Court. It would not be out of place to mention that From G distinctly requires bifurcation of the work executed between different financial years if nature of such Page 34 of 111 C/SCA/19246/2017 CAV JUDGMENT executed work forms part of prequalification. That apart, it is clear from the documents uploaded by the petitioner while submitting the tender and produced in the present petition that not only has the petitioner submitted incomplete documents but has even tried to misguide and mislead the respondent authorities by producing documents containing incorrect facts and figures, one of which is producing From 3(A) (AnnexureD, pg. 192193 of the compilation), wherein the petitioner has deliberately produced a purported certificate mentioning incorrect details showing having executed concrete work of 22630 CuM/year in 201314 which has been correctly pointed out in the affidavit in reply of Respondent no.1 vide certificate at (Annexure RIV, Pg.285287 of the compilation) showing the correct figure of 656.20 CuM. In the backdrop of the above facts, it is submitted that the petitioner has with intent to mislead the respondent authorities and to anyhow succeed in procuring the tendered contract has not given true and complete details with requisite documents while submitting its tenders. With such an intent, the petitioner has uploaded the documents in the form of Form3(A) and the statements S1(b) and S1(c), the figures wherein neither tally nor match apart from the fact that it has not even submitted FormG so as to give breakup of the works executed financial year wise. Annexed Page 35 of 111 C/SCA/19246/2017 CAV JUDGMENT herewith and marked as AnnexureR1 Collectively are the copies of Statement S1(b) and Form3(A) submitted by the petitioner for the Tender2 (AnnexureB to the petition). Annexed herewith and marked as AnnexureR2 Collectively are the copies of Statement S1(c) and Form3(A) submitted by the petitioner for the Tender3 (AnnexureC to the petition).
15. It is submitted that the petitioner has neither alleged nor made out any case as regards the essential requirement of invoking extraordinary jurisdiction of the Hon'ble Court under Article 226 of the Constitution of India as regards the powers of State and its instrumentalities while entering into the realm of contract. The petition therefore, deserves to be dismissed.
16. It is submitted that the petitioner as well as the answering respondent both were bidders who had participated in the tender process. As per the settled law, the powers of the Hon'ble court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India in the matter of awarding tenders and contracts by the State and its instrumentalities is circumscribed. The Hon'ble Apex Court in the following cases has held as under :
(i) (2009) 6 SCC 171: Meerut Development Page 36 of 111 C/SCA/19246/2017 CAV JUDGMENT Authority; Pawan Kumar Agarwal V/s. Association of Management Studies and Anr; Meerut Development Authority, reported in :
"26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process.
27. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of Page 37 of 111 C/SCA/19246/2017 CAV JUDGMENT right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations.
28. It is so wellsettled in law and needs no restatement at our hands that disposal of the public property by the State or its instrumentalities partakes the character of a trust. The methods to be adopted for disposal of public property must be fair and transparent providing an opportunity to all the interested persons to participate in the process.
29. The Authority has the right not to accept the highest bid and even to prefer a tender other than the reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority's action in accepting or refusing the bid must be free from arbitrariness or favoritism."
(ii) (2004) 4 SCC 19 : Directorate of Education V/s. Educomp Datamatics Ltd.,
13. Directorate of Education,Government of NCT of Delhi had invited open tender with prescribed eligibility criteria in general terms and conditions under tender document for leasing of Page 38 of 111 C/SCA/19246/2017 CAV JUDGMENT supply, installation and commissioning of computer system, peripherals and provision of computer education services in various Government/Government aided senior secondary, secondary and middle schools under the Directorate of Education, Delhi. In the year 20022003, 748 schools were to be covered. Since the expenditure involved per annum was to the tune of Rs.100 crores the competent authority took a decision after consulting the technical advisory committee for finalisation of the terms and conditions of the tender documents providing therein that tenders be invited from firms having a turnover of more than Rs.20 crores over the last three years. The hardware cost itself was to be Rs.4045 crores. The Government introduced the criteria of turnover of Rs.20 crores to enable the companies with real competence having financial stability and capacity to participate in the tender particularly in view of the past experience. We do not agree with the view taken by the High Court that the term providing a turnover of at least Rs.20 crores did not have a nexus with either the increase in the number of schools or the quality of education to be provided. Because of the increase in the number of schools the hardware cost itself went up to Rs.4050 crores. The total cost of the project was more than 100 crores. A company having a turnover Page 39 of 111 C/SCA/19246/2017 CAV JUDGMENT of Rs.2 crores may not have the financial viability to implement such a project. As a matter of policy Government took a conscious decision to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies which is a relevant consideration while awarding such a big project. Moreover, it was for the authority to set the terms of the tender. The Courts would not interfere with the terms of the tender notice unless it was shown to be either arbitrary or discriminatory or actuated by malice. While exercising the power of judicial review of the terms of the tender notice the Court cannot say that the terms of the earlier tender notice would serve the purpose sought to be achieved better than the terms of tender notice under consideration and order change in them, unless it is of the opinion that the terms were either arbitrary or discriminatory or actuated by malice. The provision of the terms inviting tenders from firms having a turnover of more than Rs.20 crores has not been shown to be either arbitrary or discriminatory or actuated by malice."
(iii) (1997) 1 SCC 738 : Asia Foundation and Constructions Limited V/s. Trafalgar House Construction India Limited.
Page 40 of 111 C/SCA/19246/2017 CAV JUDGMENT"(8) Having considered the rival contentions the only question that arises for our consideration is whether the High Court was justified in the facts and circumstances of the case to interfere with the award of contract in favour of the appellant and whether such interference would subserve any public 'interest for which the Court purports to have exercised its power of judicial review.
(9) ...... ..... We are of the considered opinion that it was not within the permissible limits of interference for a Court of law, particularly when there has been no allegation of malice or ulterior motive and particularly when the court has not found any mala fides or favoritism in the grant of contract in favour of the appellant. In Tata Cellular Vs. Union of India this Court has held that :
"The duty of the Court is to confine itself to the question of legality. Its concern should be :
1. Whether a decision - making authority exceeded its powers,
2. committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable Page 41 of 111 C/SCA/19246/2017 CAV JUDGMENT tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :
(i) Illegality : This means the decisionmaker must understand correctly the law that regulates his decisionmaking power and must give effect to it;
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time."
(10) Therefore, though the principle of judicial review cannot be denied so far as exercise of contractual powers of government bodies are concerned, but it is intended to prevent Page 42 of 111 C/SCA/19246/2017 CAV JUDGMENT arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the court that in the matter of award of contract power has been exercised for any collateral purpose. ......
(11) This being the position, in our considered opinion, the High Court was not justified in interfering with the award by going into different clauses of the bid document and then coming to the conclusion that the terms provided for modifications or corrections even after a specified date and further coming to the conclusion that respondent 1 being the lowest bidder there was no reason for the Port Trust to award the contract in favour of the appellant. We cannot lose sight of the fact of escalation of cost in such project on account of delay and the time involved and further in a coordinated project like this, if one component is not worked out the entire project gets delayed and the enormous cost on that score if rebidding is done. The High Court has totally lost sight of this fact while directing the rebidding. In our considered opinion, the direction of rebidding in the facts and circumstances of the present case instead of being in the public interest would be grossly detrimental to the public interest."
(iv) (2000) 2 SCC 617 : Air India Limited V/s.
Page 43 of 111 C/SCA/19246/2017 CAV JUDGMENTCochin International Airport Ltd., "(7) The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in R.D. Shetty v. International Airport Authority, 1979 (3) SCC 488; Fertilizer Corporation Kamgar ,; Asstt. Collector, Central Union v. Union of India , Tata Cellular v. Union Excise v. Dunlop India Ltd of India, ; Ramniklal N. Bhutta v. State of Maharashtra, and Raunaq International Ltd. v. I.V.R. Construction Ltd.,. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities Page 44 of 111 C/SCA/19246/2017 CAV JUDGMENT and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. 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."
(v) (2005) 4 SCC 435 : Global Energy Ltd., V/s. Adani Exports Ltd., "(10) The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary discriminatory or actuated by malice.
Page 45 of 111 C/SCA/19246/2017 CAV JUDGMENTThis being the position of law, settled by a catena of decisions of this Court, it is rather surprising that the learned single Judge passed an interim direction on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers' cheque till three days after the actual date of opening of the tender. The order of the learned single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench."
(vi) (1999) 1 SCC 492 : Raunaq International Limited Vs. IVR Construction Ltd.
"(9) The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be :(1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the Page 46 of 111 C/SCA/19246/2017 CAV JUDGMENT tenderer to fulfill the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.
(11) When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition.
If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is Page 47 of 111 C/SCA/19246/2017 CAV JUDGMENT involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court Would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide. the court should not intervene under Article 226 in disputes between two rival tenderers.
(13) Hence before entertaining a writ petition and passing any interim orders in such petitions, the court must carefully weigh conflicting public interests. Only when it comes to a conclusion that there is an overwhelming public interest in entertaining the petition, the court should intervene.
(14) Where there is an allegation of mala fides or an allegation that the contract has been entered into for collateral purposes, and the court is satisfied on the material before it, that the allegation needs further examination, the court would be entitled to entertain the petition. But even here, the court must weigh the consequences in balance before granting interim orders.
Page 48 of 111 C/SCA/19246/2017 CAV JUDGMENT(15) Where the decisionmaking process has been structured and the tender conditions set out the requirements, the court is entitled to examine whether these requirements have been considered. However, if any relaxation is granted for bona fide reasons, the tender conditions permit such relaxation and the decisions is arrived at for legitimate reasons after a fair consideration of all offers, the court should hesitate to intervene.
(16) It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work, can be legitimately paid in order to secure proper performance of the contract and good quality of workwhich is as much in public interest as a low price. The court should not substitute its own decision for the decision of an expert evaluation Page 49 of 111 C/SCA/19246/2017 CAV JUDGMENT committee.
(18) The same considerations must weigh with the court when interim orders are passed in such petitions. The party at whose instance interim orders are obtained has to be made accountable for the consequences of the interim order. The interim order could delay the project, jettison finely worked financial arrangements and escalate costs. Hence the petitioner asking for interim orders, in appropriate cases should be asked to provide security for any increase in cost as a result of such delay, or any damages suffered by the opposite party in consequence of an interim order. Otherwise public detriment may outweigh public benefit in granting such interim orders. Stay order or injunction order, if issued, must be moulded to provide for restitution."
(vii) (1993) 1 SCC 445 : Sterling Computers Limited Vs. M and N Publications Ltd., "(18) While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process." In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans. (1982) 3 AII ER 141, where it was said Page 50 of 111 C/SCA/19246/2017 CAV JUDGMENT that "The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court."
By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such equiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans (supra), the Courts can certainly examine whether "decision making process" was reasonable, rational, not arbitrary and violative of Art. 14 of the Constitution.
(19) If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available into account the interest of the State and the public, Page 51 of 111 C/SCA/19246/2017 CAV JUDGMENT then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Art. 14 of the Constitution, the Courts cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by Court amounts to encroachment on the exclusive right of the executive to take such decision.
(32) Before we part with the judgment we shall like to strike a note of caution. It is a matter of common experience that whenever applications relating to awarding of contracts are entertained for judicial review of the administrative action, such applications remain pending for months and in some cases for years. Because of the interim orders passed in such applications, the very execution of the contracts are kept in abeyance. The cost of different projects keep on escalating with passage of time apart from the fact that the completion of the project itself is deferred. This process not only affects the public exchequer but even the public in general who are deprived of availing the facilities under different projects. As such, it need not be impressed that while Page 52 of 111 C/SCA/19246/2017 CAV JUDGMENT exercising the power of judicial review in connection with contractual obligations, Courts should be conscious of the urgency of the disposal of such matters. Otherwise the power which is to be exercised in the interest of the public and for public good in some cases become counter productive by causing injury to the public in general."
(viii) (2005) 6 SCC 138 : Master Marine Services Pvt. Ltd., Vs. Metcalfe and Hodgkinson Pvt. Ltd.
"11. The principles which have to be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by a three judge Bench in Tata Cellular v. Union of India. It was observed that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness of favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while Page 53 of 111 C/SCA/19246/2017 CAV JUDGMENT accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. (See para 85 of the reports. ) (12) After an exhaustive consideration of a large number of decisions and standard books on Administrative Law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
The Government must have freedom of contract, in other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative spher however, the decision must not only i tested by the application of Wednesbury principles of reasonableness but must be free from arbitrariness not affected by Page 54 of 111 C/SCA/19246/2017 CAV JUDGMENT bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (See para 113 of the reports.) (13) In Sterling Computers Ltd. v. M/s m. N. Publications Ltd. it was held as under:
"18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process." By way of judicial review the Court cannot examine the details of the terms of the/contract which have been entered into by the public bodies or the State. Court have inherent limitations an the scope of any such enquiry. But at the same time the Courts can certainly examine whether "decision making process" was reasonable rational, not arbitrary and violative of Article 14 of the Constitution.
19. If the contract has been entered into without ignoring the procedure Page 55 of 111 C/SCA/19246/2017 CAV JUDGMENT which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract."
(14) In Raunaq International Limited Vs. IVR Construction Ltd. it was observed that the award of a contract, whether it is by a private party or by a public body or the state, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations, which would include, inter alia, the price at which the party is willing to work, whether the goods or services offered are of the requisite specifications and whether the person tendering is of ability to deliver the goods or services as per specifications.
(15) The law relating to award of contract by State and public sector corporations was reviewed in Air India Ltd. v. Cochin International airport Ltd. and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It Page 56 of 111 C/SCA/19246/2017 CAV JUDGMENT can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the court must exercise its discretionary powers 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 interfere."
17. In the backdrop of the aforesaid contentions, if the Hon'ble Court examines the merits of the case put forth by the petitioner, the Hon'ble Court would find that the petitioner has filed a speculative petition. The petition is totally bald and as vague as vagueness could be while throwing the entire burden upon the shoulders of the Hon'ble Court to find out arbitrariness, illegality, malice, irrationality, unfairness, etc. without even raising any pleading in that regard. To the misfortune of the answering respondent, on account of the present Page 57 of 111 C/SCA/19246/2017 CAV JUDGMENT petition and the order passed therein, the entire work has come to a grinding halt. It is submitted that the answering respondent has made a huge investment while securing the present contract. In the form of security deposits, the answering respondent has offered an amount of Rs.27,75,000/. That apart while anticipating the awarding of the work contract, in its business prudence, the petitioner has purchased two self loading concrete mixtures worth Rs.38,80,500/ each from Orion Equipment vide Invoice ORE/112/1718 and Invoice ORE/113/1718. Annexed herewith and marked as AnnexureR3 collectively are the copies of the Invoice ORE/112/1718 and Invoice ORE/113/1718 dated 27.09.2017 issued by Orion Equipment. That apart, the answering respondent has deployed a huge workforce for executing the awarded contract and in anticipation of the contract to be awarded for Tender3 (AnnexureC), wherein the answering respondent firm is the lowest tenderer. Prior to the service of prohibitory order dated 09.11.2017 passed by the Hon'ble Court being served upon the respondent firm, the answering respondent had undertaken the task of starting the project work since as per the terms of the contract, the time period for completion of the contract is merely of 18 months out of which the answering respondent cannot work for 3 months of monsoon and 7 Page 58 of 111 C/SCA/19246/2017 CAV JUDGMENT months for canal running period leaving behind only 8 months to complete the project. It would not be out of place to state herein that the length of the canal for which the work is to be executed runs into few kilometers. That apart, while undertaking execution of the contract work, the answering respondent has to coordinate with local farmers and the Officers and Staff of the respondent 1 authority. The current period being season of winter is the best and ideal period of execution of the work since monsoon has just past requiring no or minimum water to be fetched by the farmers to their respective fields from the canal. Thus, the most valuable period for the answering respondent for covering the execution of maximum work is suffered on account of sudden jolt. When the summer progresses the farmers would need water from the canal and therefore, the flow of the water would be needed. Thereafter, during the monsoon no work can be carried out, thus exposing the respondent 3 to a very minimal period left thereafter for completion of the project, much less revenue loss staring in the eyes of the answering respondent. If the project is not completed within the stipulated time, it may create multiple complications and may also lead to differences and/or disputes between the answering respondent and the respondent 1 authority for no fault of the answering respondent. Further, the purpose for which the canals have been established Page 59 of 111 C/SCA/19246/2017 CAV JUDGMENT namely providing irrigation water to the farmers at large also gets frustrated and thus as an adverse impact on the welfare of public at large. On account of nonsupply or minimum supply of water for farming, there may be crop failures, thus having cascading effects on a large number of families who would be adversely affected thereby. Not the least, the workforce employed by the answering respondent would be kept idle apart from the answering respondent incurring day to day expenditure and in case of their removal, they and their families being made to sufferers for want of work. The machinery which has been mobilized and deployed by the answering respondent would also remain idle, regardless the purpose for which they have been purchased or procured. The respondent firm is in a big dilemma and does not know how to and on which way to proceed further as regards all its resources deployed so far as the present tenders are concerned. In its business prudence, the respondent 3 has availed financial facilities from Banks and Financial Institutions which liability would continue increasing day by day irrespective of whether the respondent earns or not from the project. If the answering respondent is unable to meet with the deadline and finish the project in time, it would tarnish its entire reputation built up in the market after working very hard and sincerely for last about 13 years, which Page 60 of 111 C/SCA/19246/2017 CAV JUDGMENT would be the final blow which cannot be compensated by any terms. The answering respondent has its own limited resources and in its business prudence does not go after each and every tender being floated by the respondent authorities. It gradually applies for the tendered requirements by the respondent authorities gauging its resources and its ability to complete different projects and that too meeting the deadline. The resources namely workforce, machinery, financial deployment, etc., have to be continuously managed in sync with the projects being undertaken by the answering respondent's firm at a time or in succession. The entire chain such set up by the respondent firm is broken on account of such malicious, vexatious and flimsy petition at the instance of the present petitioner. The answering respondent before being served with the prohibitory order of the Hon'ble Court had mobilized the entire machinery, manpower and cleared the site by jungle cutting, cleaning of the canal, paving and approach road, executing earthwork etc., which is suddenly abandoned on being served with the prohibitory order and the site is lying totally idle. The answering respondent is suffering a huge avoidable hardship, pecuniary day to day loss, etc. apart from as stated hereinabove that the interest of public at large is also involved. It would be therefore in the fitness of things that the prohibitory order passed Page 61 of 111 C/SCA/19246/2017 CAV JUDGMENT against the answering respondent firm is lifted/vacated by the Hon'ble Court pending determination of the present petition.
19. It is emphatically denied that the petitioner meets with the eligibility criteria specified in any of the tender documents or had submitted the requisite documents online and physically for the work at Serial No.(i) and (ii). It is unbelievable to fathom that the petitioner claiming to be a business firm would recuse from submitting physical documents to the respondent authority, though the same is an essential condition of the tender document, much less upon the oral say of Chief Engineer Mr. Raval. The said averment is nothing but an afterthought to wriggle out from the petitioner's disability for being considered for prequalification of Tender3. The petitioner wants to maliciously have a backdoor entry so far as Tender3 at AnnexureC is concerned, wherein the answering respondent has stood as lowest1 tender and has claimed its right to get the work order. So far as the averments made by the petitioner regarding submission of Form3(A) are concerned, it is worth pertinent to be noted that the said document indicates its date being 28.06.2013. Even an ordinary person of a normal prudence would understand that when he is submitting documents in support of his tender and more particularly when there are rigid conditions attached to the tender, the compliance thereof Page 62 of 111 C/SCA/19246/2017 CAV JUDGMENT would require meticulousness. It is unimaginable that a person would forget as to quantum work he executed in his past project, the relevant certificate whereof is an essential requirement to be submitted in support of his current tender. The figures mentioned by the petition in Form3(A) nowhere connects with the correct figure and thus, in no circumstance can relate to any mathematical or typing error. It is quite possible that based on such incorrect and misleading Form3(A), the petitioner fir, during the span of more than 4 years have procured different work contracts either from the State Government, its instrumentalities or even from the Central Government, its instrumentalities, agencies, etc. or any other body which might require such certificate as a proof of eligibility criteria. The intention of the petitioner firm seems to be very clear, to avail as much as undue benefit which can be availed till the mischief of Form3(A) surfaces or is noticed by any competent authority. The petitioner after such a span of four and half years now having been caught and being disqualified cannot turnaround and be heard to say that it was befooling the respondent authorities and playing fraud upon the other tenderers including the answering respondent. It would be very glaring to be noticed that as stated hereinabove, the conditions of the tenders in question are stringent and have to be very meticulously fulfilled including filling in the Page 63 of 111 C/SCA/19246/2017 CAV JUDGMENT correct, complete details and particulars and not only that to file a statement and also to give an affidavit in that regard, which has been done by the petitioner. Now, the petitioner wants to turnaround by making a show as if it is not its fault or the error was not noticed by it by blaming the respondent authority. It is emphatically denied that the quantities of concrete are not correctly mentioned while issuing the Form3(A) or even without considering the said Form, the petitioner is qualifying. The petitioner has made such a callous, bald and vague averment without any iota of evidence or proof in that regard. Without admitting the said contention to be true, it is submitted that even otherwise, the petitioner cannot as a summersault take a contention to secure a backdoor entry in the tendering process. As regards the documents produced by the petitioner at Annexure H in support of its contention to justify the correctness of Form3(A) is concerned, a bare reading of the same would clearly imply that the quantum of money which is shown to have been paid to the petitioner towards concrete work would easily demonstrate that the petitioner, in its wildest dream also could not have executed quantum of concrete work to the tune of 22630 CuM. The contention regarding sending the documents to FSL for verification of Shri Mukesh Chaudhary's signature is nothing but an attempt to undo the Page 64 of 111 C/SCA/19246/2017 CAV JUDGMENT mischief made by the petitioner and to gain the sympathy of the Hon'ble Court. It is emphatically denied that the petitioner is meeting with the qualification criteria or is qualified for any of the three works independent of Form3(A) as contended. The petitioner has made a wild, vexatious and obnoxious statement without any iota of evidence that it is qualified to favour the other tenderer. Though, as aforesaid, the petitioner while filing the present petition was aware of the status of the answering respondent and Indian Construction Company being the lowest tenderer has deliberately not chosen to implead them as party respondents and has further chosen not to make any specific allegation against either of them and that too by any supporting documents, the said statement cannot be relied upon even for a while.
20. As regards the averments made by the petitioner qua not pressing the petition for work no.1 is concerned, the petitioner was aware of at the time of the filing of the petition that the amount quoted by Indian Construction Company as regards Work No.1 was certainly lower than the amount quoted by the petitioner and therefore, the petitioner has abandoned the challenge to the said tender. So far as the tender for Work No.2 is concerned, the petitioner wants to steal a march over the answering respondent by way of a backdoor entry under the guise of a difference of Page 65 of 111 C/SCA/19246/2017 CAV JUDGMENT miniscule amount of Rs.3,90,459.80 which was totally undisclosed till the date of filing of rejoinder affidavit on account of the petitioner being disqualified and its commercial bid not at all opened by the respondent authority. So far as the work of Tender3 at AnnexureC is concerned, as pointed out hereinabove, the petitioner has failed to physically produce the documents as per the terms of the tender within its stipulated time. The petitioner now belatedly cannot lay its claim on the same under the convenient guise that the Superintending Engineer verbally told him not to submit such documents else it would be blacklisted. The said contention apart from being unbelievable is ludicrous inasmuch as when the petitioner has uploaded the documents in support of Tender3 at AnnexureC on the website, how the petitioner would be told by the Chief Engineer not to submit the same documents physically, more particularly when the same documents would have been submitted physically by the petitioner in support of its Tenders 1 and 2. As per the aforesaid law laid down by Hon'ble Apex Court, it would not be appropriate or permissible for this Hon'ble Court to enter into the arena disputes questions of fact and to go into the clauses, terms and conditions of the tender documents and substitute its own view for the final decision taken by the respondent authorities.
Page 66 of 111 C/SCA/19246/2017 CAV JUDGMENT9. Learned counsel for the petitioner had invited Court's attention to the relevant averments made in rejoinder dated 29th November 2017 to the contentions of the reply filed by the respondent no.3, which are reproduced as under:
"...2. I say that present petition is confined qua work at Item No.ii as recorded in the order dated 09/11/2017.
10. With respect to Para10, I say that the allegations made therein are not true and not correct. I say that the authorities declared that since none of the tenderers had submitted notarized documents, therefore, tenders are reinvited. It is pertinent to note that thus technically all the five bidders were disqualified including respondent no.3, which has nothing to do with the present petition. I say that the respondent no.3 has made these kind of averments with a view to prejudice this Hon'ble Court. It is also pertinent to note that knowing fully well the reason for reinvitation, the respondent no.3, has pleaded the ignorance. I say that in any case Hon'ble Court is not requested to consider the controversy with respect to work at Serial No.(iii).
11. With respect to Para11, I say that the allegations made therein are not true and not correct. It is absolutely incorrect to say that the petitioner did not join maliciously the Indian Page 67 of 111 C/SCA/19246/2017 CAV JUDGMENT Construction Company for work at Serial No.(i) and respondent no.3 for work at Serial No.(ii). I say that on 12/10/2017 the petitioner was not aware that the tender of Indian Construction Company for work at Serial No.(ii) was accepted by the respondent no.2. I say that the question of misguiding and misdirecting the Hon'ble Court does not arise. I say that though the respondent no.2 was served on 14/10/2017, yet the work, order was issued on 16/10/2017 to over reach the Court proceedings. I say that the petitioner was not aware whether the tender of Parth Associates or Siddhraj Projects Pvt. Ltd. was accepted, therefore, there is no question of joining the parties to the petition. I say that the petitioner has not challenged the tender process, but the petitioner has challenged disqualification of the petitioner and accordingly filed the petition on 12/10/2017. It is not true to say that the relief granted by this Hon'ble Court would adversely affect the interest of the respondent no.3. I say that there is no abuse of process of law and machinery of the Hon'ble Court on the part of the petitioner, therefore, the question of dismissing the petition with exemplary cost or otherwise does not arise.
14. With respect to Para14, I say that the allegations made therein are not true and not correct. I say that AnnexureBI (Page 238), Page 68 of 111 C/SCA/19246/2017 CAV JUDGMENT AnnexureBII (Page239) are filled up. It is pertinent to note that details of earth work/ excavation/ concrete lining/ concrete work year wise were required to be filled as per AnnexureBII and accordingly the petitioner has provided these details in the AnnexureA (Page235236) as mentioned in AnnexureBII. It is pertinent to note that FormG is also filled up which is at Page244. I say that the respondent no.2 has not raised any such objection and has not disqualified the petitioner on the said alleged nonsubmitting of FormG. It is not true to say that FormG distinctively require bifurcation of the work executed between different financial years as alleged. I say that AnnexureG (which according to respondent no.3 is FormG) require details of bidders. I say that as stated above, details of work executed yearwise is to be filled up as per AnnexureBII and accordingly the petitioner has provided the details of work executed yearwise. I say that there is no question of submitting incomplete documents and misguiding & misleading the respondent authorities by documents containing incorrect facts & figures as alleged. I say that by letter dated 05/10/2017 the concerned Executive Engineer was requested to provide the correct Form 3(A) and accordingly the correct Form3(A) was provided by the concerned Executive Engineer along with letter dated 02/11/2017, annexed Page 69 of 111 C/SCA/19246/2017 CAV JUDGMENT herewithcollectively marked as AnnexureI are the copies of letter dated 02/11/2017 along with corrected Form3(A). Without prejudice, I say that without considering Form3(A) (AnnexureD, page
- 192193) the petitioner is meeting with the requirement of prequalification criteria i.e. 17900 Cum per year of excavation, earth work and 93500 sq. meter per year of concrete lining work. I say that the respondent no.2 himself has certified that the petitioner has executed 63208 Cum earth work in 201415 and 107,024 sq. meter concrete lining in 201415 (Page26133). I say that the petitioner had not fabricated Form3(A) produced at AnnexureD, page192193. I say that there was a bonafide mistake on the part of the concerned Executive Engineer in mentioning the quantity of concrete work which is corrected and issued with letter dated 02/11/2017. I say that the respondent no.2 could have verified from the concerned Executive Engineer with respect to Form3(A) produced at AnnexureD, Page192193. I say that the question of misleading the responding authorities by the petitioner does not arise for the simple reason the petitioner will not remember the quantity executed for a particular item in a particular project, therefore, the Form3(A) issued by the concerned Executive Engineer was submitted as received from the said Executive Engineer. It is not true to say that Form3(A), Statement S1(b) & Page 70 of 111 C/SCA/19246/2017 CAV JUDGMENT S1(c) the figures does not tally as alleged. I say that the authorities have neither made any such allegations nor disqualification the petitioner on such ground.
17. With respect to Para17, I say that the allegations made therein are not true and not correct. It is absolutely incorrect to say that the petitioner has filed speculative petition. It is also not true to say that the petition is totally bald and as vague as vagueness could be while throwing the entire burden upon the shoulders of the Hon'ble Court to find out arbitrariness, illegality, malice, irrationality, unfairness etc. as alleged. I say that after service of the Rule on 14/11/2017 the Respondent no.3 has done jungle cutting work on 17/11/2017 as is evident from various photographs, annexed herewith collectively marked as AnnexureK are the photographs dated 17/11/2017. It is absolutely incorrect to say that entire work has come to grinding halt. It is absolutely incorrect to say that the respondent no.3 has made huge investment as alleged. I say that the security deposit can be refunded by the respondent no.2. I say that the concrete mixtures can be used by the respondent no.3 for any other work. It is pertinent to note that the Invoice produced by the respondent no.3 is dated 27/09/2017 whereas the work order is dated 16/10/2017, therefore, Page 71 of 111 C/SCA/19246/2017 CAV JUDGMENT obviously the concrete mixures worth Rs.38,80,500/ cannot be said to be purchased for the work in question. I say that there is no work force for executing the work in question as is evident from the photographs. It is not true to say that the respondent no.3 has undertaken task of starting the Project before 09/11/2017. I say that after receipt of prohibitory order the respondent no.3 has done the jungle cutting work which is amounting to contempt of Courts order. I say that the nature of work is such it cannot be done during the winter as the Canal is flown for irrigation. I say that the work can be started only from March onwards. It is absolutely incorrect to say that current period being season of winter is the best and ideal period of execution of the work as alleged. It is not true to say that most valuable period for covering the execution of maximum work is suffered on account of sudden jolt as alleged. I say that during summer the Canal is not flown. It is not true to say that there is adverse impact on the welfare of public at large. I say that the water is flown in the Canal, therefore, there will not be failure of the crop having cascading effect on large number of families as alleged. It is not true to say that the work force is employed by the respondent no.3 and that alleged work force would be kept idle. It is not true to say that the respondent no.3 is incurring daytoday expenditure. I say that when the work force is not Page 72 of 111 C/SCA/19246/2017 CAV JUDGMENT employed, where is the question of suffering for want of work. I say that no machinery is deployed by the respondent no.3, therefore, there is no question of idle, regardless purpose of the so called machinery. I say that during winter season the work in question cannot be executed, therefore, there is no question of dilemma for the respondent no.3. I say that the respondent no.3 is trying mislead the Hon'ble Court by making such false averments. I say that it is for the respondent no.3 to avail financial assistance from the Banks which has nothing to do with the Hon'ble Court proceedings. I say that the petitioner has knocked the doors of this Hon'ble Court to seek the justice. I say that the question of tarnishing the alleged reputation build by the respondent no.3 does not arise as the Citizens are bound by the verdict of the Hon'ble Court. I say that when the respondent authorities have not acted rationally, the Hon'ble Court is bound to consider the same and the parties to the proceedings are bound by the final order that may be passed in the interest of justice. I say that the respondent no.3 has not mobilized any work force at the site and has not deployed any machinery at site as is evident from the photographs. I say that the petitioner is ready for final arguments as and when convenient to the Hon'ble Court, therefore, the question of vacating the order does not arise.
Page 73 of 111 C/SCA/19246/2017 CAV JUDGMENT20. With respect to Para20, I say that the allegations made therein are not true and not correct. It is not true to say that the petitioner wants backdoor entry under the guise of difference of Rs.3,90,459.80. I say that the petitioner is wrongly disqualified, therefore, petition has been filed before this Hon'ble Court for seeking the justice. I say that the petition is restricted for the work at Serial No.(ii) only, therefore, the petitioner does not repeat the same rejoinder for rest of the works. I say that there is no disputed question of fact and the petition is required to be decided on merits.
10. The respondent no.3's SurRejoinder affidavit dated 30th November 2017 to the rejoinder affidavit dated 29th November 2017 also makes an interesting reading therefore, relevant extract, which were empathetically stretched by the learned counsel for the respondent no.3, deserves to be setout as under:
"...4. It is submitted that the petitioner with a malafide intent and with a view to prejudice Hon'ble Court against the respondent 3 firm has made palpably incorrect averments in the rejoinder affidavit, more particularly that the answering respondent has done jungle cutting prohibitory order passed by the Hon'ble Court dated 09.11.2017. In furtherance of such malicious intention, the petitioner with the sole intent of Page 74 of 111 C/SCA/19246/2017 CAV JUDGMENT misguiding and misleading the Hon'ble Court has produced certain got up photographs at AnnexureK (which appear to be of some cut bushes) with its rejoinder affidavit which photographs nowhere suggest the answering respondent executing the contract awarded in its favour by the respondent 2 authority, much less on the alleged date i.e. 17.11.2017. The malicious intention of the petitioner of misleading the Hon'ble Court is clear from its own contradictory averment made in paragraph17 (pages 367368 of the compilation). The petitioner in the said paragraph on one hand alleged that the answering respondent was doing jungle cutting work on 17.11.2017 and "I say that after receipt of prohibitory order the respondent no.3 has done the jungle cutting work which is amount to contempt of Court's order.... I say that there is no workforce for executing the work in question as is evident from the photographs." In the same breath, in the same paragraph, the petitioner has further contended that "I say that when the workforce is not employed, where is the question of suffering from wont of work. I say that no machinery is deployed by the respondent no.3, therefore there is no question of idle, regardless purpose of the socalled machinery ...... I say that the respondent no.3 has not mobilized any workforce at the site and has not deployed any machinery at site as being evident from the Page 75 of 111 C/SCA/19246/2017 CAV JUDGMENT photographs." On the basis of the information I have collected, it is submitted that one Reliable Construction, Rajkot has been awarded the yearly contract by the respondent authorities for cleaning the canal from within and outside periphery. It appears that the bushes might have been cut either by it or the nearby labourers/villagers who cut bushes etc. for using as a fuel for preparing meals. The alleged photographs are not of the work undertaken by the respondent firm. It is therefore, evident that the sole intention of the petitioner by making such total contradictory averment and got up photograph, is to prejudice against the answering respondent in the minds of the Hon'ble Court and to mislead and misguide it for securing an order against the respondents.
5. I emphatically deny that the work order dated 16.10.2017 was issued in favour of the answering respondent to overreach the Court proceedings. The petitioner has itself clearly admitted that it has not challenged the tender process. In view of the same, as per the ratio laid down by the Hon'ble Apex Court, the petitioner is not entitled to prefer or maintain the present petition and the same deserves to be dismissed at the threshold. I deny that according to the answering respondent, FormG is AnnexureG to the tender document which requires details of the Page 76 of 111 C/SCA/19246/2017 CAV JUDGMENT bidders. The petitioner by making such averment has deliberately attempted to mislead and misguide the Hon'ble Court inasmuch as the clause (o) of Item 9.0 being General Instructions to the Tender Notice (AnnexureB, Page78 of the Compilation), specifically refers to Form3G Certificate, the details wherein are to be filled in as required at page 59 (Bottom of Running page 129 of the compilation) of the tender document at AnnexureB to the petition. The said certificate (being referred to as FormG) should contain financial year wise breakup of the completed works, separately for each work and is required to be submitted by the tenderers along with their duly dilled in tender form. Accordingly, the answering respondent being the lowest tenderer had submitted Notarized FormG being details of year wise performance of major item operated/Certificate of Experience of Work along with the duly filled in tender form. Annexed hereto and marked as Annexure R/4 Collectively are the copies of the Form G submitted by the answering respondent along with the duly filled in tender form. The answering respondent could collect such details of the other tenderers from the nprocure (website) which contains all uploaded documents along with the filled in tender documents by the other tenderers of the tender document at AnnexureB. It could be seen that another tenderer being Niyati Construction Co., Vadodara has also Page 77 of 111 C/SCA/19246/2017 CAV JUDGMENT submitted different Notarized certificates being FormG along with its duly filled in tender form. Annexed herewith and marked as Annexure R/5 collectively are the copies of the Form G submitted by Niyati Construction Co., Vadodara. Similarly, the other tenderer being Parth Associates, Ahmedabad has also submitted different Notarized certificates being FormG along with its duly filled in tender Form. Annexed herewith and marked as Annexure R/6 Collectively are the copies of the FormG submitted by Parth Associates, Ahmedabad. Similarly, the other tenderer being Siddhraj Projects Pvt. Ltd., has also submitted different Notarized certificates being FormG along with its duly filled in tender form. Annexed herewith and marked as Annexure R/7 Collectively are the copies of the Form G submitted by Siddhraj Projects Pvt. Ltd. Thus, it is clear that the petitioner having realized that it not having submitted the requisite certificates being FormG along with the tender to the respondent 2 for the tender document at Annexure B, to wriggle out of its disqualification, it has attempted to confuse the Hon'ble Court by suggesting that the what the answering respondent meant to FormG was AnnexureG of the tender document, which is totally incorrect. The petition therefore deserves to be dismissed with costs on this ground alone.Page 78 of 111 C/SCA/19246/2017 CAV JUDGMENT
6. It is submitted that the reliance placed upon by the petitioner on the alleged consolidated certificate of executed work (at page 261/33 of the compilation) and the case put forth by the petitioner it that it is qualified on the basis of the said certificate is not only throughly misconceived but is an attempt to mislead the Hon'ble Court. Firstly, the said certificate at page 261/33 is not meeting the requirement of the tender document at page 59 (Running page 129 of the compilation) inasmuch as each separate certificate is to be submitted for each work, which condition is not complied with by the petitioner.
6.1 It is submitted that though the certificate categorically requires the tenderer to supply details of year wise performance of the works executed, the said certificate of the petitioner at page 261/33 does not give year wise quantity of executed work in each distinct financial year as contemplated by Clause 8.0 (o) (Running page 78 of the compilation) which is adhered to by all the tenderers except the petitioner.
6.2 It is submitted that the figure of the first item of the certificate at page 261/33 for CC Lining 27476 Sq. Mtrs. does not tally with the corresponding form 3(A) at page 261/29 being 27478.21 Sq. Mtrs. and item 3 of Statement S1(b) Page 79 of 111 C/SCA/19246/2017 CAV JUDGMENT at page 255. Similarly, the figure of the second item of the certificate at page 261/33 for CC Lining being 23596 Sq. Mtrs. does not tally with the corresponding form 3(A) at page 261/28 being 23602.45 sq. mtrs and item 2 of the Statement S1(b) at page 255. The petitioner thus wants to take the Hon'ble Court into seriously disputed questions of fact which is impermissible in law.
6.3 It is submitted that the Form 3(A) at page 261/28 shows that the work was started by the petitioner on 06.03.2014 whereas shown to be completed on 03.02.2015 i.e. between Financial years 20132014 and 20142015 respectively, however, the petitioner has not given the breakup for each financial years as required by Form G (Page 59 of the tender document) which is complied with by all the tenderers except the petitioner.
Similarly, the Form 3(A) at page 261/29 shows that the work was started by the petitioner on 16.08.2013 whereas shown to be completed on 14.05.2014 i.e. between Financial years 20132014 and 20142015 respectively, however, the petitioner has not given the breakup for each financial year as required by Form G (Page 59 of the tender document) which is complied with by all the tenderers except the petitioner.Page 80 of 111 C/SCA/19246/2017 CAV JUDGMENT
Similarly, the Form 3(A) at page 261/30 shows that the work was started by the petitioner on 06.03.2014 whereas shown to be completed on 06.02.2015 i.e. between Financial years 20132014 and 20142015 respectively, however, the petitioner has not given the breakup for each financial year as required by Form G (Page 59 of the tender document) which is complied with by all the tenderers except the petitioner.
Similarly, the Form 3(A) at page 261/32 shows that the work was started by the petitioner on 06.03.2014 whereas shown to be completed on 05.04.2015 i.e. between Financial years 2013 2014, 20142015 and 20152016 respectively, however the petitioner has not given the breakup for each financial year as required by Form G (Page 59 of the tender document) which is complied with by all the tenderers except the petitioner.
7. It is submitted that the petitioner had deliberately played mischief and committed a jugglery vide the certificate at page 261/33 by showing all the above works having finished in a single financial year being 20142015. The same was done by the petitioner with a view to mislead the respondent authorities and has continued the same attempt before this Hon'ble Court to believe the petitioner's incorrect version that it is fulfilling Page 81 of 111 C/SCA/19246/2017 CAV JUDGMENT the eligibility criteria of having completed minimum concrete lining work of 93,500 sq. mtrs/yr. However, from the above figures also, it is clear that the petitioner has utterly failed to meet with the criteria and does not possess the requisite prequalification. It is reiterated that the petitioner has not executed the requisite minimum quantity of work as is required under the terms of the tender documents at AnnexureB. The petitioner has miserably failed to point out and prove that it is holding the requisite qualification for having completed the minimum eligibility criteria of execution of work in any particular single financial year. I say that the petitioner having clearly understood and realized that it does not have any case whatsoever on merits, though having taken up the issue as regards the tenders at AnnexureA and C and having questioned the same in the present petition and also having prayed for a relief qua the same, abandoned the cause thereof midway. However, with a view to harass the answering respondent and malign its hard earned reputation, the petitioner is making a valiant attempt to continue the work under the guise of the challenge made as regards the tender at AnnexureB to the petition. The petition needs not be entertained and be rejected with exemplary cost."
11. The learned counsel for the petitioner filed sursurrejoinder Page 82 of 111 C/SCA/19246/2017 CAV JUDGMENT dated 1st December 2017 to the reply filed by respondent no.3, relevant averments whereof, reads as under :
"...4. With respect to Para4, I say that the allegations made therein are not true and not correct. It is absolutely incorrect to say that the petitioner with malafide intend and with a view to prejudice Hon'ble Court against the respondent no.3 has made palpably incorrect averments in the rejoinder affidavit as alleged. With prejudice I say that if the respondent no.3 has not done the jungle cutting than it comes to that pursuant to the work order dated 16/10/2017, the respondent no.3 has not done any construction activity at site. I say that the photographs suggest that the jungle cutting is done on 17/11/2017. It absolutely incorrect to say that there is a malicious intention of the petitioner to mislead the Hon'ble Court as no contradictory averment is made in paragraph17. I say that the petitioner has pointed out that there is no work force employed by the respondent no.3 and no machinery is deployed by the respondent no.3 and the respondent no.3 has made the false statements in the affidavit in reply. Without prejudice I say that the respondent no.3 suggests that the Reliable Construction, Rajkot has been awarded the yearly contract by the respondent authorities for cleaning the Canal from within and outside periphery and bushes might have been cut either by it or the Page 83 of 111 C/SCA/19246/2017 CAV JUDGMENT nearby labourers / villagers for using as a fuel for preparing meals, thus respondent no.3 admits that no construction activities have been started pursuant to the work order dated 16/10/2017. I say that the respondent no.3 also admits that the photographs are not of the work undertaken by the respondent no.3 firm is sufficient to allow the petition as the petitioner has been arbitrarily and wrongly disqualified by the respondent authorities. I say that the question of prejudicing mind of the Hon'ble Court and to mislead and misguide for securing the order against the respondents does not arise. I say that the petitioner was under the impression that the jungle cutting is done by the respondent no.3, however, the respondent no.3 has now clarified that they have not done jungle cutting work.
5. With respect to Para5, I say that the allegations made therein are not true and not correct. It is an admitted position that the work order was issued after service of the order only with a view to over reach the Court proceedings. I say that the fact remains that the petitioner has challenged the disqualification by the respondent authority, therefore, petitioner is required to be heard and decided on merits and not required to be dismissed as submitted by the respondent no.3. I say that there is no FormG to the tender document as alleged by the respondent no.3 but there is Page 84 of 111 C/SCA/19246/2017 CAV JUDGMENT AnnexureG (page 116) which requires the details of bidders as stated in the rejoinder. I say that accordingly AnnexureG is filled up by the petitioner which is at Page - 244. I say that there is no question of making deliberately any averments to mislead and misguide the Hon'ble Court. I say that Clause(o) of Item 9.0 being General Instructions to the Tender Notice specifically refers Form 3A/G/Certificate the details wherein are to be filled in as required at page - 129 and accordingly Form 3A i.e. WORK WISE DETAILS OF WORK COMPLETED OR IN PROGRESS BY THE CONTRACTOR has been provided by the petitioner (kindly refer page - 261/1, 261/3, 261/26, 261/27, 261/28, 261/29, 261/30, 261/31, 261/32, 261/34, 261/35, 261/36, 261/38, 261/41, 261/43, 261/45. I further say that Clause(o) of Item 9.0 though refers Form 3A/G/Certificate at page - 78 but in the tender document there is no prescribed Formg, however tender document at Page - 129 prescribed Form 3A as stated herein above. Without Prejudice I say that the details of FormG provided by respondent no.3 & other bidders are same that of Form3A, thus Form G & Form3A are same, therefore, there is no difference whether details are in FormG or Form 3A. I say that petitioner has also submitted notarized Form3A being details of year wise performance of major item operated/certificate of Page 85 of 111 C/SCA/19246/2017 CAV JUDGMENT experience work alongwith duly filled in tender form. It is pertinent to note that alongwith Form 3A (page, 129) the petitioner has also provided the Certificates at page 261/33, 261/37, 261/39, 261/40, 261/42, 261/44, 261/26. I say that the respondent authority have not disqualified the petitioner on any such ground as is being canvassed by the respondent no.3. I say that Form3A is prescribed on page129 and accordingly the petitioner has provided the required details as stated above. I say that there is no point that other tenderer have submitted FormG duly notarized as Form3A/G/Certificate is required to be provided as per Clause - (o) Item 9.0 General Instruction to the Tender Notice. I say that as stated above there is no prescribed FormG in the tender document but the prescribed Form is Form - 3A and accordingly the petitioner has provided Form3A as required by Clause(o) Item 9.0 General Instruction. It is absolutely incorrect to say that the petitioner has not complied with Clause(o) Item 9.0 of General Instruction and to wriggle out of disqualification the petitioner has made incorrect submission. I say that the question of dismissing the petition as suggested by the respondent no.3 does not arise.
6. With respect to Para6, I say that the allegations made therein are not true and not correct. It is absolutely incorrect to say that the Page 86 of 111 C/SCA/19246/2017 CAV JUDGMENT certificate at page 261/33 is not meeting the requirement of the tender as alleged. I say that the petitioner has submitted separate certificate for each work and one such certificate is at page 261/33 therefore, it is absolutely incorrect to say that the condition prescribed at page129 (Form3A) is not complied by the petitioner.
7. With respect to Para6.1, I say that the allegations made therein are not true and not correct. It is absolutely incorrect to say that the petitioner has not complied with Clause - 9.0 (o). I say that the petitioner has in terms complied with the requirement of Clause - 9.0 (o) as stated herein above. It is pertinent to note that the respondent authority has not disqualified the petitioner on such allegation made by the respondent no.3.
8. With respect to Para6.2, I say that the quantity of Item No.1 is executed 27478.21 sq. mtrs. which is more than 27476 sq. mts. mentioned at page - 261/33 inadvertently by the respondent no.2 which is neither here nor there. Similarly, on page255 Item No.3 due to typographical error the 3 sq. mtrs. is reflected more which is also neither here nor there, as against the requirement of 93500 sq. mts. Per year (page99) the petitioner has executed much more quantity then required.Page 87 of 111 C/SCA/19246/2017 CAV JUDGMENT
I say that the quantity of Item No.2 is executed 23602.45 sq. mts. Which is more than 23596 sq. mts. mentioned at page - 261/33 inadvertently by the respondent no.2 which is neither here nor there. Similarly, on page255 Item No.2 the quantity is correctly mentioned which is also neither here nor there, as against the requirement of 93500 sq. mts. Per year (page99) the petitioner has executed much more quantity then required.
I say that the petitioner is obliged to the respondent no.3 as the quantity of 3 sq. mtrs. + 6.45 sq. mts. is required to be added in 107024 sq. mtrs. I say that considering the said remaining quantity of 9.45 sq. mtrs. the petitioner has executed 107033.45 sq. mtrs. which is much more than the required quantity of 93500 sq. mtrs.
9. With respect to Para6.3, I say that the allegations made therein are not true and not correct. I say that the work is executed in 201415 as certified by the respondent no.2 (page261/33). I further say that the year wise quantity is also reflected in the said certificate. It is not true to say that the breakup for the work at page261/29, 261/30 and 261/32 is not provided by the petitioner. I say that before lining work other items are required to be executed and accordingly other items were executed by the petitioner. I say that so Page 88 of 111 C/SCA/19246/2017 CAV JUDGMENT far as lining work is concerned the year wise quantities are provided at page255.
10. With respect to Para7, I say that the allegations made therein are not true and not correct. I say that the question of playing mischief and committing jugglery at certificate page 261/33 does not arise for the simple reason the respondent no.3 has certified the quantities executed during the financial year 201415. I say that the question of misleading the respondent authorities does not arise as the respondent no.2 has issued the certificate of lining work executed during 201415. I say that the question of continuing of the misleading attempt to this Hon'ble court also does not arise as the petitioner has executed much more lining work than required as stated above. It is not true to say that the petitioner utterly failed to meet with the criteria as alleged. I say that the respondent no.2 has not disqualified the petitioner on any such allegations made by the respondent no.3. It is not true to say that the petitioner has not executed minimum quantity of work required under the terms of the tender document at AnnexureB. It is not true to say that the petitioner has miserably failed to point out and prove that it is holding the requisite qualification for having completed the minimum eligibility criteria of execution of the work in any particular single financial year as alleged. With Page 89 of 111 C/SCA/19246/2017 CAV JUDGMENT respect to para12, no comments. I say that since the offer of the petitioner is not lowest therefore, petitioner has right not pressed for the work at Sr. No.i and since the petitioner was not allowed to submit physical documents for work at Sr. No.iii, therefore, the petitioner has rightly not pressed the petition for the work at Sr. No.iii. I say that petitioner is master of his own acts and deed and does not require any comment from the respondent no.3. It is absolutely incorrect to say that with a view to harass the respondent no.3 and malign his alleged hard earned reputation, petitioner has filed the present petition as alleged. It is pertinent to note that when the petition was filed the petitioner was not aware even about the acceptance offer of the respondent no.3 it was only after the AGP declared to the Hon'ble Court, the respondent no.3 was joined as party respondent to the petition, I say that therefore, the vague allegations made by the respondent no.3 are required to be ignored by this Hon'ble Court."
12. The aforesaid pleadings containing reply and counter, ultimately were required to be viewed in light of one more affidavitin reply filed by the respondent no.1 dated 18th December 2017, and relevant paras therefrom deserve to be reproduced hereunder:
"...2. I humbly say and submit that at present the grievance of the present petitioner is related to the Page 90 of 111 C/SCA/19246/2017 CAV JUDGMENT tender notice No. B2/04 of 201718 of AjiII Irrigation Scheme, extension, renovation and modernization of work to main canal of AjiII Irrigation Scheme amounting to Rs.3,79,76,379=51 which has been issued by Executive Engineer, Rajkot Irrigation Division,Rajkot on 24.08.2017 in news paper after getting the draft tender approval from the Narmada Water Resources Water Supply and Kalpsar Department, State of Gujarat by order dated 22.08.2017.
3. It is humbly submitted that Executive Engineer, Rajkot Irrigation Division, Rajkot has floated tenders for three work for (1) Bhadar 1 Irrigation Scheme Converting Existing Flow Canal System into Lift Irrigation System of Direct Minors & it's Sub Minors and Direct Outlets of Main Canal of Bhadar Irrigation Section 3 of Bhadar Irrigation Scheme (Estimated cost Rs.5,60,80,822=05), (2) AjiII Irrigation Scheme - Extension, Renovation and Modernization work to main canal of AjiII Irrigation Scheme (Estimated cost Rs.3,69,76,379=51) and (3) Bhadar - 1 Irrigation Scheme - Extension, renovation and modernization work to Bhadar Main canal between Ch5050.00 mts with D5/R of section4 of Bhadar Irrigation Scheme part3), (Estimated cost Rs.5,25,64,319
00).Page 91 of 111 C/SCA/19246/2017 CAV JUDGMENT
4. It is humbly submitted that the present petitioner has produced one Form 3A issued by Executive Engineer, Jamnagar Irrigation Division, Jamnagar and quantity mentioned in the said certificate which is endorsed by the contractor in Form No.3A of in which the quantity of concrete has been mentioned for the year 201314 as 22630 CuM, which is found false during verification certificate from concerned Executive Engineer on 27.09.2017. The Executive Engineer, Porbandar Irrigation Division has verified the said Form 3A and issued correct form 3A mentioning the correct quantity of concrete which is 656.20 CuM, whereas the lining work quantity is same, as mentioned by Executive Engineer as per Prevailing Standard Practice of the Department as per Standard Performa.
5. The said Form 3(A) dated 28.06.2013 has been produced by the petitioner for two separate work of W.R Department BhardarI and AjiII irrigation scheme. At this juncture relevant dates are required to be considered.
Last date of online submission of P.Q. and price bid 19.09.2017
Physical document submission date 19.09.2017
25.09.2017
Prequalification opening date 20.09.2017
P.Q. Approved by Govt. 04.10.2017
Price bid approved date by Govt. 12.10.2017
Page 92 of 111
C/SCA/19246/2017 CAV JUDGMENT
6. It is humbly submitted that as petitioner has produced false Form No.3A before the authority issuing the tender, a proposal has been sent by the Executive Engineer, Rajkot Irrigation Division, Rajkot to Superintendent Engineer, Rajkot Irrigation Circle, Rajkot and in turn, Superintending Engineer, Rajkot Irrigation Circle, Rajkot has sent a recommendation to the Chief Engineer (Sau.) & Additional Secretary, State of Gujarat with regard to qualification and disqualification of all the bidders. A copy of the communication dated 22.09.2017 issued by Superintending Engineer is annexed herewith and marked as AnnexureR1.
7. It is humbly submitted that considering the recommendation dated 22.09.2017, the State Government has taken decision dated 04.10.2017 to disqualify the present petitioner. As the petitioner has acted against the instructions of the tenderer at Clause No.1.13 & Clause No. 5 (iii) of qualification criteria which read as under:
Clause No.1.13 (SECTION 1 INFORMATION AND INSTRUCTIONS FOR TENDERERS) 1.13: Applicants shall be disqualified if they have
(i) made untrue or false representation in the forms, statements and attachments required in the prequalification documents; or Page 93 of 111 C/SCA/19246/2017 CAV JUDGMENT
(ii) record of poor performance either duet technical or financial or any other reasons."
Clause No. 5 (iii) (Qualification Criteria Capability of Tenderer Evaluation of P.Q. Bid) Clause 5 (iii) "Even though the bidder meets above qualifying criteria, he shall be disqualified if he has made misleading or false representation in the forms, statements & attachments submitted in proof of the qualification requirements and/or record of poor performance such as abandoning the work, not properly completing the contract inordinate delays in completion, litigation history or financial failures etc."
Based on the above Clauses No. 1.13 & 5(iii) of qualification criteria, decision has been taken on the recommendation of the committee consisting of Chief Engineer (Q.C) & Additional Secretary, Chief Engineer (Sau) & Additional Secretary, Financial Advisor (W.R.) & Superintending Engineer, Rajkot Irrigation Circle, Rajkot.
It is humbly submitted that the Clause No.5 (iii) of qualification criteria and Clause No. 8 gives powers to the State Government to qualify or disqualify any bidder and to approve the tender. More particularly the Resolution dated 12.07.2011 issued by Under Page 94 of 111 C/SCA/19246/2017 CAV JUDGMENT Secretary Road & Building Department; more particularly Para 213 also gives powers to the Secretary for approval and disapproval of the tender. The copy of the said resolution dated 12.07.2011 is annexed herewith and marked as Annexure RII.
8. It is humbly submitted that so far as Form No. 3A is concerned, in the present tender proceeding, the required format is Form 3A is for year wise quantity as prescribed by the authority and it is denied that the Form No. G showing separate quantity is mandatory and the tenderer has to submit the documents which are required as per the terms and condition and the formate of the tender. Even otherwise, considering the quantity and Form 3A submitted by the petitioner dated 28.06.2013, the said tender was for Rs.1,52,40,500/ and completed work amount was Rs.1,79,12,981.44/ and if the quantity 24500 CuM is considered then that tender amount will reach to minimum approximately Rs.5,70,00,000/.
9. It is also submitted that the authority has also issued show cause notice dated 04.12.2017 to the petitioner as to show cause why petitioner cannot be blacklisted for three years.
10. It is submitted that petitioner has produced Page 95 of 111 C/SCA/19246/2017 CAV JUDGMENT false Form No. 3A dated 28.10.2013 and he was in knowledge of the quantity considering the measurement book and bill which is endorsed by him for total Concrete Quantity 2526.205 CuM (1870.00 CuM for the year 201213 & 656.20 CuM for the year 201314 i.e. total Qty 2526.20 CuM) and copy of the measurement book is Annexure - RIII. Therefore, considering the above facts and circumstances the present petition is required to be dismissed with cost in the interest of justice."
13. The learned counsel for the petitioner invited Court's attention to the relevant averments from their Rejoinder Affidavitin Reply dated 20th December 2017 to the affidavit filed on behalf of respondent no.1 dated 18th December 2017, which are reproduced hereunder:
"...4. With respect to Para4, I say that the allegations made therein are not true and not correct. It is absolutely incorrect to say that the quantity mentioned From3A is endorsed by the Petitioner as alleged. I say that there is a mistake on the part of the Executive Engineer, Jamnagar Irrigation Division, Jamnagar with respect to the quantity of the contract mentioned in Form3A, therefore, by letter dated 05/10/2017 (AnnexureA, Page194) the attention of the Executive Engineer was drawn to the mistake with the request to issue the Form3A with correct quantity has been issued by the concerned Executive Engineer which is produced before this Hon'ble Court (AnnexureI, Page 96 of 111 C/SCA/19246/2017 CAV JUDGMENT Page369A to 369C). I say that the concerned Executive Engineer has paid for 656.20 Cum quantity of concrete and not for 22630 Cum. I say that for the bonafide mistake committed by the Executive Engineer the Petitioner cannot be disqualified for tender in question.
6. With respect to Para6, I say that the allegations made therein are not true and not correct. It is absolutely incorrect to say that the petitioner has produced false Form3A. It is pertinent to note that Form3A received by the Petitioner from the concerned Executive Engineer has been produced as it is without any interpolation.
7. With respect to Para7, I say that the allegation that the Petitioner has acted against the instructions of the tenderers at Clause1.13 and Clause5(iii) of the qualification criteria are not true and not correct as the Petitioner has not made untrue or false representation in the Forms, Statements and Attachments required in the pre qualification document as contended in Clause 1.13(i). I say that the Petitioner has not made misleading or false representation in the Forms, Statements and Attachments submitted in proof of the qualification requirement as contended in Clause5(iii). I say that there is bonafide mistake on the part of the Executive Engineer which has been corrected and the Petitioner is qualifying even Page 97 of 111 C/SCA/19246/2017 CAV JUDGMENT without considering Form3A dated 28/06/2013. I say that the provisions of Resolution dated 12/07/2011 are not attracted to the facts of the present case. Without prejudice, I say that the entire record is maintained by the Department as per the PWD manual, therefore, there was no reason on the part of the Petition to doubt the contents of Form 3A dated 28/06/2013. I say that while receiving the Form3A issued by the concerned Executive Engineer, the Petitioner has put the signature that does not mean the Petitioner has endorsed the contents of Form3A dated 28/06/2013.
8. With respect to Para8, I say that on behalf of the Respondent No.3 it was contended that Form G showing separate quantity is mandatory. I say that the case of the petitioner is that all the required documents which are required as per the terms and conditions & the format of the tender were submitted. I say that the Petitioner is qualifying without considering Form3A dated 28/06/2013. I say that no contractor will remember the quantity and rate of a particular item executed in a particular contract for particular authority, therefore, there is no point in providing the calculation of the quantity as is being done by the Respondent No.1.
9. With respect to Para9, I say that the show cause notice dated 04/12/2017 for blacklisting for three years is received on 08/12/2017 and the Page 98 of 111 C/SCA/19246/2017 CAV JUDGMENT Petitioner has sought 15 days time to file the reply to the said show cause notice by letter dated 11/12/2017, annexed herewith marked as AnnexureM is the copy of the said letter.
10. With respect to Para10, I say that the allegations made therein are not true and not correct. It is absolutely incorrect to say that the Petitioner has produced false Form3A dated 28/06/2013. I say that while receiving the Form3A dated 28/06/2013 the measurement books and bill were not shown to the Petitioner and there was no occasion to cross verify the quantities mentioned in Form3A dated 28/06/2013. Without prejudice, I say that there was no reason for the petitioner to doubt the quantity mentioned in Form3A dated 28/06/2013 by the concerned Officers.
11. I say that from the details provided at Page 467, it is established that even without considering the quantity mentioned in Form3A dated 28/06/2013 the Petitioner is qualifying, but because of the incorrect quantity mentioned in Form3A dated 28/06/2013 by the concerned Executive Engineer, the Petitioner is disqualified. I say that for the mistake of the concerned Executive Engineer, the Petitioner cannot be disqualified.
14. The affidavitinrejoinder filed by the petitioner contains specific stand of the petitioner that though the petition was in fact filed in respect of all the three works narrated in paragraph no.2 of the Page 99 of 111 C/SCA/19246/2017 CAV JUDGMENT petition, but subsequently, the petition is confined to petitioner's disqualification qua the work no.ii i.e. Aji Irrigation Scheme no.2 on the ground that even if the Form3(A) certificate, submitted by the petitioner in support of his claim for fulfilling the experience criteria of having worked in concrete and earth excavation is ignored on account of it being erroneous and incorrect then also the petitioner did fulfill the eligibility criteria and hence, when the petitioner has offered Rs.3,65,85,919.72 as against the respondent no.3's quotation of Rs.3,69,76,379.51 leaving sizable gap of Rs.3,90,459.80 ps. Thus, the real controversy revolves around petitioner's claim qua Aji irrigation scheme no.2 only. The Court, therefore, needs to examine only that claim in light of the aforesaid pleading and rival contentions of the counsels for the parties.
15. The Court is of the view that the said claim of the petitioner needs to be examine in light of the relevant provision of tender document itself as well as the law on the subject. The clause no.9 in the notice inviting tender was in respect of general instructions to the bidders. The said instructions categorically contains that the tenderers were advised to read carefully the instructions and eligibility criteria while filling the tender document. The tenderers were to compulsorily submit duly notarized annual turn over and C.A. certificate and form 3(A) Form G/Certificate clearly mentioning yearwise quantity of work executed and amount paid separately with countersigned by the competent authority along with AnnexureB1 and AnnexureB2 and Annexure1. Section1 of the tender documents contains instructions to the contractor in which clause 8.0 clearly indicated that the tender not fulfilling any of the requirement was liable to be rejected. The condition no.9.0 indicated that the Government was not bound to accept the lowest tender and reserved the right to reject any or all of the tender without assigning any reason, it also contains that incomplete tender not Page 100 of 111 C/SCA/19246/2017 CAV JUDGMENT fulfilling anyone of the above condition would also be liable to be rejected. Clause no.13 which has been reproduced hereinabove in this judgment clearly provided that acceptance of tender will rest with competent authority, who does not bind himself to accept the lowest tender and reserves the right to reject any or all tenders without assigning any reasons thereof and it must be clearly and distinctly understood that the conditions of the contract and specification shall be rigidly enforced and no relaxation shall be allowed. Clause no.1.13 which has been produced hereinabove in this judgment, is required to be reproduced again at the cost of the repetition for indicating that the employer floating tender attached greater importance to the forthrightness on the part of the tenderer.
"1.13Applicants shall be disqualified if they have
(i) made untrue and false representation in the forms, statements and attachments required in the prequalification documents; or
(ii) record of poor performance either due to technical or financial or any other reasons. (emphasis supplied) Similarly, Section2 of the tender document produced hereinabove, relevant part thereof also need to be reproduced hereunder at the cost of repetition.
(4) SECTION 2
QUALIFICATION CRITERIA
CAPABILITY TENDERER:
Page 101 of 111
C/SCA/19246/2017 CAV JUDGMENT
(QUALIFICATION CRITERIA)
1.0 GENERAL
All information requested for ........ However, bidders are cautioned that not giving complete information called for in the tender documents in the form required or not giving it in clear terms or making any change in the prescribed forms may result in the bidder being summarily disqualified.
1.2 References, information and certificates from the respective clients certifying suitability, technical knowhow or capability of the bidder shall be signed by that client, in full with his name, underneath in block letter and designation in that organization.
1.3 No further information will be entertained after submission of tender documents unless it is called for by the Government.
2.0 TENDERER SHALL INCLUDE WITH HIS TENDER :
2.1 Accompaniment to tender documents.
(d) Supporting documents:
1. AnnexureA Details of work and
magnitude carried out
in the last 7 years
(20102011 to 2016
Page 102 of 111
C/SCA/19246/2017 CAV JUDGMENT
17)
17. Annexure2 Affidavit to be provided
by the Contractor to
WR Department.
18. StatementS1(a) Details of the work of magnitude carried out for Excavation and Earth Work.
19. StatementS1 (b) Details of the work of magnitude carried out for canal lining work.
20. StatementS1 (c) Details of the work of [Except tender magnitude carried out at AnnexB] for concrete work.
21. Form3(A) Work wise details of work completed or in progress by the contractor.
3.0 ELIGIBILITY OF PREQUALIFICATION 3.1 The intending bidders are hereby informed to furnish the information in the enclosed Annexure"A" to "N", Annexure1 and 2 and Statement S1(c) to S1(c) and Form 3(a) duly filled in for qualifying for the bidding. [Except S1(c) for Tender at AnnexureB] 3.3 The minimum requirements regarding contractors capacity for qualifying as a bidder shall be follows :
(C) EXPERIENCE OF WORK
a) The contractor should have
Page 103 of 111
C/SCA/19246/2017 CAV JUDGMENT
successfully carried out
minimum quantity of working
any one year during last 7 years
201011 to 201617:
(1) Excavation, Earth Works
Tender1 1,33,140 CuM/yr
[AnnA]
Tender 2 17,900 CuM/yr [Ann
B]
Tender 3 6,950 CuM/yr [AnnC]
(2) Concrete lining works :
Tender 1 53,750 CuM/yr[Ann
A]
Tender 2 93,500 SqM/yr [Ann
B]
Tender 3 18,020 CuM/yr [Ann
C]
(3) Concrete works :
Tender 1 2,850 CuM/yr
[AnnA]
Tender 3 10,860 CuM/yr [Ann
C]
Contractor shall indicate the
details of all works carried out
by him and for correctness of
details: contractor shall furnish
the details with certificate of
concerned Executive Engineer
duly attested clearly indicating
year wise quantity of each of the
Page 104 of 111
C/SCA/19246/2017 CAV JUDGMENT
above mentioned items of work
done during the period 201011
to 201617.
(6) ANNEXUREA
DETAILS OF THE WORK AND MAGNITUDE
CARRIED OUT IN THE LAST 7 YEARS i.e. 2010 2011 TO 20162017 Sr. Name of Place and Total Annual Turnover ending month, Period of Principle Estimated Maximum No. Work Country Tendered April to March completion feature cost quantity Cost of for entire in one work Yrs Qty Amt in work year Rs. ....
Val.
16. The petitioner's claim qua his eligibility for the work at Item no.2 i.e. Aji Irrigation Scheme no.2 is required to be assessed in light of the mandatory and essential conditions of the tender documents setout hereinabove. The contention on the part of the respondent no.3 that it was compulsory for the petitioner to have submitted in detail form no.3(A) and separately formG Certificate indicating yearwise quantity executed and the amount paid separately appears to be correct and requires consideration. The counsel for the respondent no.3 was justified in contending that formG required bifurcation of the work executed between different financial years if nature of such executed work forms part of prequalification. The contention that the petitioner's document cannot be said to be complete document also deserves consideration. The petitioner claimed to have executed concrete work of 22630 CuM/year in 201314 has been controverted by respondent no.1 by producing correct Certificate at AnnexureR4 that the correct figure was 656.20 CuM only.
17. The claim of the petitioner qua the work no.2 for Aji Page 105 of 111 C/SCA/19246/2017 CAV JUDGMENT Irrigation Scheme no.2 also needs to be examined in light of the submission canvassed on behalf of the respondent no.1 in its two affidavits, relevant portion whereof already have been setout hereinabove. In the subsequent affidavit filed by the respondent no.1, relevant extracts whereof have been reproduced in para12 of this judgment hereinabove, the respondent no.1 contended that the petitioner had produced form no.3(A) issued by the Executive Engineer, Jamnagar, Irrigation Division, Jamnagar indicating the quantity of concrete work for the year 201314 as 22630 Cum, which as per the respondent no.1 was incorrect and misleading. The respondent no.1 therefore, undertook verification exercise on 27th September 2017 and correct Form3(A) which came to light indicated that the quantity of concrete was only 656.20 Cum. The said form3(A) dated 28th June 2013 had been produced by the petitioner for two separate work of BhadarI and Ajiii Irrigation Scheme. The respondent no.1 has in its affidavit produced the details and development of date in tabular form clearly indicating that the last date of online submission of P.Q. and price bid was 19th September 2017, physical document submission date was 19th September 2017 and 25th September 2017, prequalification opening date was 20th September 2017, P.Q. approval date by the Government dated 4th October 2017 and Price bid approval date by the Government was 12th October 2017. The respondent no.2 has also submitted on oath in the subsequent affidavit that as the petitioner has produced false and incorrect Form3(A) before the authority issuing tender, a proposal was sent by Executive Engineer, Rajkot to the Superintendent Engineer, Rajkot Circle, Rajkot and in turn Superintendent Engineer, Rajkot Circle, Rajkot, sent recommendation to Chief Engineer and Additional Secretary, State of Gujarat with regard to qualification and disqualification of all the bidders. That communication dated 22nd September 2017 has been placed on record as R1 and the decision of the State Government thereon dated 4th October, Page 106 of 111 C/SCA/19246/2017 CAV JUDGMENT 2017 indicated that the petitioner was disqualified as petitioner had acted contrary to clause1.13 and clause 5 (iii)of qualification criteria, which has been reproduced by the respondent no.1 in his subsequent affidavit, which this Court has also reproduced hereinabove.
18. The petitioner's contention if viewed in its proper perspective, then it comes to the contention that when the original certificate issued by the concerned Executive Engineer containing incorrect figure was not dubbed to be forged and when the signatory had not disputed the signature, mere incorrect mentioning of the figure may not be viewed as so fatal an error as to result into disqualification and ousting of the petitioner from the tender process. The petitioner has also contended that even if that Form3(A) is ignored, then also petitioner did fulfill eligibility criteria so far as work at item no.ii Aji Irrigation Scheme is concerned. This Court is unable to accept the submission on two counts viz. the terms and conditions of the contract extracted hereinabove does not leave any room for any relaxation and/or permission to either overlook or substitution of the figures and Certificates. The petitioner also cannot be presumed to having lack of knowledge so far as the correct figure of concrete work is concerned, as the correct concrete work is far more less than the quantity mentioned in the Certificate and Form3(A) produced by the petitioner along with the tender document. Whereas, the corrected Form3(A) produced by the respondent indicated that only 600 and odd CuM concrete work is done for the given year for which the he actually paid and payment received by the petitioner for the work done would be indicative factor that the petitioner did have knowledge of the actual concrete work done by him for the given year. In that view of the matter, the petitioner cannot be permitted to contend that the entire certificate be viewed as mere error and nonfatal. In fact, the Supreme Court has observed in case of Central Coalfields Ltd. & Another Vs. SLLSML (Joint Venture Consortium) Page 107 of 111 C/SCA/19246/2017 CAV JUDGMENT & Others, reported in (2016) 8 SCC 622 as under : "Para4: The question for our consideration is generally whether furnishing a bank guarantee in the format prescribed in the bid documents is an essential requirement in the bidding process of Central Coalfields Ltd. and specifically whether a bid not accompanied by a bank guarantee in the format prescribed in the bid documents of Central Coalfields Ltd. could be treated as nonresponsive in view of Clause 15.2 of the general terms and conditions governing the bidding process? The answer to the general and the specific question is in the affirmative.
9. What is of significance from the above is that the earnest money deposit was required to be made in the form of an irrevocable bank guarantee from any scheduled bank "in the format given in the bid document".
12. In para 11 of GTC, it was specifically mentioned that the bid security of earnest money was required to be deposited in the appropriate form and in Para 15.2 thereof it was specifically stated that any bid not accompanied by an acceptable bid security/earnest money deposit shall be rejected as nonresponsive.
18. It was also contended that not only was the bank guarantee in conformity with the basic requirements but that its terms were stricter than Page 108 of 111 C/SCA/19246/2017 CAV JUDGMENT the bank guarantee prescribed by CCL. It was further contended that in any event furnishing a bank guarantee in the prescribed format was a nonessential condition of the contract and therefore the rejection of JVC's bid only on the ground that the bank guarantee was not in the prescribed format was arbitrary and unreasonable."
The Supreme Court in case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Another, reported in AIR 2016 SC 4305 observed as under :
15. We may add that 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. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. 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.
16. In the present appeals, although there does Page 109 of 111 C/SCA/19246/2017 CAV JUDGMENT not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court.
17. Under the circumstances, we find merit in the appeals filed by the appellants and set aside the judgment and orders passed by the High Court and restore the decision of NMRCL to the effect that GYTTPL JV was not eligible to bid for the contract under consideration."
19. Thus, in light of the observations of Supreme Court in the said ruling it can well be said that the terms of the tender document are required to be adhered to in stricto sensu without there being any room of deviation. The deviation on the part of the tenderer or bider would if found fatal by the employer then, the Court need not interfered therewith.
20. This brings the Court to consider the contention of the petitioner qua ignoring of the certificate which according to him was erroneous. This submission of the petitioner also deserves to be rejected as the correction was only sought to be obtained after the due date and Page 110 of 111 C/SCA/19246/2017 CAV JUDGMENT opening at the prequalification where everyone knew as who has been qualified and who has not been qualified. Beside the employer inviting tender is the authority, who has to apply the terms of the tender in stricto sensu to all the bidders while assessing rival claim of the bidders for bagging the contract. Moreover, it may not be overlooked that the petitioner did not elaborately and in detail indicated year wise working as other bidders did provide the details. This aspect emphasis by the counsel for the respondent no32 also needs consideration in its proper perspective. In view of this, the Court is of the view that the contention of the petitioner for allowing this petition deserve to be rejected as not tenable in eye of law.
21. For the aforesaid discussion, this Court is of the considered view that the petitioner has not madeout any case for interference with the entire process nor has the petitioner established his case for seeking any appropriate writ of mandamus or direction as sought and prayed in the petition. As a result thereof, petition fails and is hereby dismissed. Rule discharged. Interim relief granted earlier stands vacated.
(S.R.BRAHMBHATT, J.) (R.P.DHOLARIA, J.) AMAR RATHOD...
P S Joshi Pankaj Page 111 of 111