High Court · 2012

As agreed to by the learned counsel for the parties, this writ applicati Heard Mr. P. Pathak, learned senior counsel for the petitioner. Also heard Mr. L .P. Sharma, learned Standing counsel, Gauhati University, appearing for responde nt Nos. 1 to 4 and Mr. T.J. Mahanta, learned counsel for respondent No.5. 2. on was taken up for disposal at the admission stage. 3. This writ application under Article 226 of the Constitution of India has been filed challenging the provisional work order/letter dated 12/12/2011 (Anne xure-VI to the writ petition), issued by the Superintending Engineer, Gauhati Un iversity for Shifting and Reconstruction of Aquaculture and Bio-Diversity Projec t of Gauhati University for works mentioned against NIT No.T/11-12/217 dated 27/ 9/2011. 4. The case of the petitioner as projected in the writ petition is that he is a registered contractor under Class-1 (A) category under Assam Public Works D epartment, for short, APWD, having long experience in handling and executing big contracts and he owns/has necessary resources to take on lease equipments and m achineries to complete successfully such contracts. It is stated that the petiti oner, to his credit, has completed construction/improvement works of more than R s.7 crore against one single work order. 5. In response to a Short Notice Inviting Tender (NIT), issued by the respo ndent No.4, published in a local daily newspaper, (cid:28)Assam Tribune (cid:29), in its issue dated 29/9/2011, inviting sealed tenders in two bid system from financially soun d contractors/firms/individuals having adequate infrastructure facilities includ ing machineries to carry out works indicated therein in connection with Shifting and Reconstruction of Aquaculture and Bio-Diversity Project of Gauhati Universi ty to be received till 2.00 PM on 14/10/2011, the petitioner submitted his tende r within the stipulated time with necessary documents and furnishing information as required in terms of the NIT. 8 other tenderers had also submitted tender in respect of the work and on 17/11/2011, the technical bids were opened and at th e time of opening of the technical bids, the representative of the petitioner wa s also present. Technical bids in respect of 5 tenderers were rejected and the t echnical bid of the petitioner was approved and on 22/11/2011, respondent No.4 i nformed 4 tenderers including the petitioner to appear before a Committee from 2 .00 PM to 4.00 PM with all documents in original for verification at the Executi ve Committee chamber of Gauhati University. On due verification, the documents f urnished by the petitioner were found to be valid on comparison with the origina ls and therefore, the petitioner was legitimately expecting that he would be cal led by the respondent authorities for opening of his price bid. On 10/12/2011, i n the evening hours, he learnt from a reliable source that the price bid of the respondent No.5 was opened by respondent authorities without any intimation to t he petitioner and the authority had also decided to award the contract to him. S ubsequently, the respondent No.4 had issued a provisional work order dated 12/12 /2011 in favour of the respondent No.5 directing the respondent No.5 to start th e work within 3 days from the date of issue of the letter, which, as has been no ted earlier, is the subject matter of challenge of the instant writ petition. 6. It is stated that the respondent No.5 is a second class contractor who w as registered with APWD barely 6 months prior to the submission of tender and he could not have been awarded the work in question, valued at more than Rs.2 cror e in view of the fact that under the APWD norms, a person/contractor belonging to second class category cannot be awarded a contract above Rs.1 crore. 7. Respondent Nos. 1 to 4 had filed an affidavit, to which a reply affidavi t has also been filed by the writ petitioner. No reply affidavit has been filed to the affidavit-in-opposition filed by respondent No.5. 8. In the affidavit, the respondent Nos. 1 to 4 had pleaded that the petiti oner could not furnish original documents relating to contract of Vibratory Roll er, Road Roller, Water Pump Sets, etc and categorically denied the assertions of the petitioner regarding submission of all original documents. It is pleaded th at as per clause 2 of qualifying criteria for technical bid, the petitioner fail ed in technical part of the bid. Though the petitioner was found to be eligible along with 3 other tenderers in respect of the technical bid, the Technical Bids Evaluation Committee had decided to take a final decision only after proper ver ification of the original documents and accordingly, a letter dated 22/11/2011 w as issued requiring the 4 eligible tenderers to appear before the committee, ind icating specifically that in the event of failure to produce the original docume nts before the committee, the tender may be treated as cancelled. After examinat ion of the original documents submitted by the tenderers, a list of Tool and Pla nts (T&P) available with the tenderers was prepared in a tabular form by the Tec hnical Bids Evaluation Committee. Another meeting of the Technical Bids Evaluati on Committee was held on 1/12/2011 and they had scrutinised the comparative stat ement prepared on 24/11/2011 and it was recorded that respondent No.5 had fulfil led all the qualifying criteria under clause 2 of NIT for technical bid. In resp ect of the petitioner, it was indicated that he partially fulfilled the aforesai d qualifying criteria. The Construction Committee, thereafter, in the meeting he ld on 10/12/2011, vide Resolution No.103 (i) accepted and approved the price bid of respondent No.5 and resolved to allot the work to respondent No.5 as per pri ce bid and offer of rebate. By provisional work order dated 12/12/2011, the resp ondent No.5 was requested to start the work within 3 days from the date of issue of the said order and submit necessary tender agreement before execution of the work. The letter was received by respondent No.5 on 12/12/2011 and a formal agr eement was also signed on 13/12/2011. It has also been stated that respondent No .5 had given rebate of 10% over his quoted rate with his financial bid. 9. The respondent No.5, in his affidavit, has justified the action taken by University authorities rejecting the technical bid of the writ petitioner and a lso in allotting the work order to him. It has also been stated that 90% of the work was under completion. 10. In the reply affidavit by the petitioner against the affidavit of the re spondent Nos. 1 to 4, the petitioner has reiterated that all original documents were placed before the committee. It is also been stated that while the responde nt No.5 had offered 10% less than the estimated value, the petitioner had offere d 23% less than the estimated value. It has also pleaded that technical bid of r espondent No.5 ought to have been declared unqualified as the respondent No.5 di d not submit the registration number of JCB. It is also pleaded that there was n o third meeting of the Technical Bids Evaluation Committee on 1/12/2011 and the respondent No.4 had only forwarded the name of respondent No.5 to the constructi on committee. 11. Mr. P. Pathak, learned senior counsel appearing for the petitioner submi ts that the respondent authorities had illegally rejected the technical bid of t he petitioner on the purported ground of his technical bid not being in complian ce with clause 2 of the NIT relating to technical bid. On the other hand, the re spondent No.5 having not given the registration number of the JCB, the technical bid of the respondent No.5 could not have been considered to be valid and there fore, the impugned provisional work order issued in favour of respondent No.5 re quires to be interfered with. The learned senior counsel further submits that th e respondent authorities acted illegally in accepting the offer letter for rebat e after opening of tender. It is also his submission that that the respondent au thorities wanted to grant undue favour to the respondent No.5 is apparent from t he fact that even before the respondent No.5 executed the formal agreement, the respondent No.5 had started work. The learned senior counsel submits that his te chnical bid being valid, respondent authorities committed manifest illegality in not opening the price bid of the petitioner and in only opening the bid of the respondent No.5. The learned senior counsel also questions the credentials of th e respondent No.5, who is only a second class contractor and who does not have a ny experience to be allotted the work in question. The learned senior counsel co ntends that the petitioner has impeccable track record and the petitioner has be en deliberately disqualified in the technical bid without any justifiable reason , only to subserve the interest of the respondent No.5. 12. Mr. L.P. Sharma, learned counsel appearing for respondent Nos. 1 to 4 su bmits that the University authorities by following a transparent procedure, havi ng found the technical bid of the respondent No.5 to be only responsive, proceed ed to open the price bid of the respondent No.5 and had, accordingly, allotted t he work in question to him. He submits that the petitioner did not produce all t he original documents at the time of verification on 24/11/2011. He has also con tended that there is no illegality on the part of the respondent authorities in accepting the rebate offered by respondent No.5 which was a part of the tender d ocuments. The learned counsel submits that no case is made out by the petitioner for interference in exercise of powers under Article 226 of the Constitution of India. The learned counsel places reliance on the judgments of the Apex Court in the case of Jagdish Mandal vrs State of Orissa and ors, reported in (2007) 14 SCC 517 and in the case of Siemens Public Communication Network Pvt. Ltd and an r vrs Union of India and ors, reported in (2008) 16 SCC 215 to impress upon this Court the scope of judicial review in a matter relating to award of contract. Mr. Sharma has also produced the relevant records for the perusal of thi

13. s Court. 14. Mr. T.J. Mahanta, learned counsel appearing for respondent No.5 submits that there was no requirement in the NIT that only 1st class contractor register ed under APWD can tender for the work. The learned counsel endorses the submissi ons of the learned counsel appearing for respondent Nos. 1 to 4 and further cont ends that the work in question is on the verge of completion and, therefore, in public interest, the impugned order should not be interfered with at this stage. 15. I have considered the rival submissions of the learned counsel for the p arties and have also perused the materials on record and the records produced by Mr. Sharma. Contrary to what has been stated in the reply affidavit that there was n 16. o third meeting of Technical Bids Evaluation Committee on 1/12/2011, the record reveals that the members had assembled and all the members had duly signed the a ttendance sheet and the resolution was signed by the Registrar, Gauhati Universi ty. It is not correct that it was the handiwork of respondent No.4, who had, all by himself ,forwarded the comparative statement to the Construction Committee w ith observations of the so called meeting dated 1/12/2011. 17. A perusal of the T & P as prepared by the Technical Bids Evaluation Comm ittee shows that it is not correct as has been contended in the affidavit-in-rep ly that the respondent No.5 did not submit any registration number regarding his JCB. The registration of the JCB is reflected in the said T & P and Certificate of Registration is also available in the records made available by Mr. L.P. Sha rma. 18. The NIT dated 29/9/2011 invited sealed tenders from financially sound co ntractors/firms and individuals having adequate infrastructure facilities includ ing machineries to carry out the work in connection with Shifting and Reconstruc tion of Aquaculture and Bio-Diversity Project, which has the following 5 compone nts: (a) Earth filling work in proposed Bio-Diversity Park (G.U) (b) Construction of pond dike by earth filling (c) Construction of ponds of aqua hatchery (d) Construction of Master drain (e) Construction of A.T. Building (Remaining work). 19. The NIT does not stipulate that only class 1 contractors of APWD would b e entitled to participate in the tender process. Therefore, the mere fact that t he respondent No.5 is a 2nd class contractor under APWD will not make him inelig ible to participate in tender process. 20. is as follows: (cid:28)Qualifying criteria for technical bid: 1. Experience of successfully completing similar works of total value not l ess than Rs.50 lakhs in construction of same type of project during last 3 (thre e) years. 2. The tenderer must have his own infrastructure facilities and machineries like JCB ; Dumper truck; Vibratory roller; Excavator; water pump set, shovel et The NIT also indicated the qualifying criteria for technical bid, which c required for timely completion of the above work. Experience in similar types of work executed in Academic Institution lik

3. e University, College etc. (cid:29) 21. Time for completion of the work was fixed at 60 days from the date of is sue of written order to commence work/work order/ letter of acceptance of tender . The part-A containing the techno-commercial part of the bid, in terms of claus e 7 of the General Condition of Contract, was to be opened at the Executive Coun cil chamber of Gauhati University in presence of the intending tenderers or thei r authorised representatives and part-B of the tender was to be returned to the tenderers who are found to be under qualified after opening of part-A. Clause 2 of the General Conditions of Contract provides that no request of any change of rates shall be entertained after receipt of the tender. Perusal of the records d emonstrates that along with his tender, the respondent No.5 had also offered reb ate of 10% and it is not that he had offered rebate of 10% after tenders were op ened. Initially, Technical Bids Evaluation Committee had short listed 4 tenderer s including the petitioner for verification of the documents and, accordingly, o n 24/11/2011, all the aforesaid tenderers were directed to produce the original documents. The respondent Nos. 1 to 4 in paragraphs 8 and 28 of the affidavit-in -opposition had listed the items in respect of which the petitioner did not prod uce the original documents. In para 28, additionally, it was also stated that th e petitioner did not submit any document in respect of Vibratory Roller, which i s the most essential item for compaction of earth. The petitioner, in his reply affidavit, contended that though trucks and rollers are not necessary equipments , he had submitted the list of the same. With regard to Vibratory Roller, it was stated that Vibratory Roller as well as Tendem Roller is one and similar equipm ent. 22. A perusal of the qualifying criteria for technical bid as indicated in t he NIT shows that the tenderer must have his own JCB, Dumper Truck, Vibratory Ro ller, Excavator, Water Pump Set, Shovel etc. It appears from the documents annex ed with the tender of the writ petitoner that an invoice of Greaves Cotton Ltd. was enclosed stating the same to be in respect of Vibratory Roller. However, the invoice shows that the same was in respect of Tendem Roller. No documents have been produced either before the Technical Bids Evaluation Committee along with t ender or even before this Court to establish that Vibratory Roller and Tendem Ro ller are one and the same thing. The position that emerges is that the petition er did not submit any document with regard to Vibratory Roller and therefore, it is not necessary to examine whether the petitioner failed to produce other docu ments as indicated in paragraphs 8 and 28 of the affidavit-in-opposition. 23. The scope of judicial review in the matter of award of contracts is very limited and the Court will exercise discretion only when it is satisfied that t he action of the public authority is detrimental to public interest. 24. In Jagdish Mandal (supra), the Apex Court at paragraph 22 observed thus: (cid:28)Judicial review of administrative action is intended to prevent arbitra riness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made (cid:28)lawfully (cid:29) and not to check whether cho ice or decision is (cid:28)sound (cid:29). When the power of judicial review is invoked in matt ers relating to tenders or award of contracts, certain special features should b e borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity an d natural justice stay at distance. If the decision relating to award of contrac t is bona fide and is in public interest, Courts will not, in exercise of judici al review, interfere even if a procedural evaluation or error in assessment of p rejudice to tenderer, is made out. The power of judicial review will not be perm itted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor can always seek da mages in a Civil Court. Attempts by unsuccessful tenderers with imaginary grieva nces, wounded pride and business rivalry, to make mountains out of mole hills of some technical/procedural violation or some prejudice to self, and persuade cou rts to interfere by exercising power of judicial review, should be resisted. Suc h interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a Court before interfering in tender or contractual m atters in exercise of power of judicial review, should pose to itself the follow ing questions: (i) de or intended to favour some one; Or Whether the process adopted or decision made is so arbitrary and irrational that the Court can say (cid:28) the decision is such that no responsible authority acting Whether the process adopted or decision made by the authority is mala fi Whether public interest is affected. reasonably and in accordance with relevant law could have reached (cid:29); (ii) If the answers are in the negative, there should be no interference under Articl e 226. Cases involving blacklisting or imposition of penal consequences on a ten derer/contractor or distribution of state largesse (allotment of sites/shops, gr ant of licences, dealership and franchise) stand on a different footing as they may require a higher degree of fairness in action (cid:29). 25. In Siemens (supra), in paragraph 40, the Supreme Court stated thus: (cid:28) On examining the facts and circumstances of the present case, we are o f the view that none of the criteria has been satisfied justifying Court’s inter ference in the grant of contract in favour of the appellants. When the power of judicial review is invoked in the matters relating to tender or award of contrac ts, certain special features have to be considered. A contract is a commercial t ransaction and evaluating tenders and awarding contracts are essentially commerc ial functions. In such cases principles of equity and natural justice stay at a distance. If the decision relating to award of contracts is bona fide and is in public interest, courts will not exercise the power of judicial review and inter fere even if it is accepted for the sake of argument that there is a procedural lacuna. (cid:29) In the affidavit-in-opposition which was filed on 18/5/2012, in paragrap 26. hs 9 and 32, while it was stated that 60% of the work was completed, in paragrap h 21, it was stated that more than 35% work was already completed. Mr. Sharma, t he learned counsel for respondent Nos.1 to 4 had submitted that the word 35% was wrongly typed and the same should have been typed as 60%.

27. The affidavit of respondent No.5, filed on 4/2/2012, shows that almost 9 0% of the work was under completion. As noted earlier, there was no rebuttal aff idavit to the affidavit of the respondent No.5.

28. In view of the aforesaid discussions, the provisional work order dated 1 2/12/2011 issued by the respondent No.4 does not require interference in exercis e of powers under Article 226 of the Constitution of India, and accordingly, the writ petition shall stand dismissed.

29. No cost.