Judgment · High Court · 2012

#13. r as well as Mr. B. D. Das, learned Senior Counsel for the respondents. I have heard Mr. U. Rajbanshi, learned counsel for the petitione

#14. Learned counsel for the petitioner submits that the impugned act ion of the respondents is not only arbitrary but is also illogical. He has conte nded that the petitioner’s bid having been found technically sound and the lowes t (L-1) in respect of the price bid should be awarded the contract. According to him, the reason given for cancellation of the price bid, viz., indicating wrong unit of measurement in the price bid in the item of work No.7 (M2 instead of M3 ) cannot be justified as the respondents can easily find out the respective bids of the parties by converting the rate offered on the basis of sq.m to cu.m. He asserts that calling for fresh price bids is not justified as all the rates of t he parties are now out in the open and the petitioner’s bid being the lowest (L- 1), the impugned action would cause serious prejudice to him. In the circumstanc es, he submits, the petitioner has been subjected to an unfair treatment, which calls for interference of this Court.

#15. Mr. B.D. Das, learned senior counsel for the respondents on the other hand submits that the wrong mention of the unit of measurement in respect of the item of Work No.7 was an inadvertent mistake which was detected by the Bi d Evaluation Committee at the time of scrutiny of the price bids. He also submit s that after application of the conversion formula from sq.m to cu.m as suggeste d by the petitioner, the converted rates of the parties are exorbitantly high an d that it could not be ascertained as to whether all the bidders had quoted thei r respective rates on the basis of sq.m or cu.m. In such circumstances, going fo r a fresh price bid is the only viable solution, contends the learned counsel fo r the respondents. He further submits that the impugned decision is neither arbi trary nor discriminatory and cannot be said to be contrary to public interest. I n support of his submissions, he refers to a decision of the Apex Court in the c ase of M/s. Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municip al Corporation and others; reported in AIR 2000 SC 2272. He has also produced th e original price bids of the four technically valid bidders submitted on 10-10-2 011.

#16. ideration of the Court. The rival submissions made at the bar have received the due cons

#17. The bone of contention is the unit of measurement in the item of work No.7 forming part of the tendered work. The description of the said item o f work is an under:- (cid:28)Brick work in cement mortar with 1st class brick including racking out joints a nd curing complete as directed in superstructure above plinth level upto require d level. b) In prop 1:4 (cid:28).

#18. In the original price bid, the unit of measurement as against th is item of work was clearly shown as M2 and the approximate quantity as 313.68. From the original price bids, it is seen that the rates quoted by the respective bidders in respect of this item of work are as follows :-

#1. Kamal Singh Dugar -- Rs. 799.00 2. M/S J.C. Construction -- Rs. 1200.00 3. Uzir Ali -- Rs. 4400.00 4. M/S Hemen Deka -- Rs. 5000.00

#19. It is also seen that all the bidders had put their initial while quoting the rates. From the price bids, the rates of the different bidders vis- à-vis the tendered amount after taking the unit of measurement as M2 are as foll ows :-

#1. 2. 3. 4. Tendered amount --- Kamal Singh Deka (L-1) M/S J.C. Construction(L-2) Uzir Ali (L-3) M/S Hemen Deka (L-4) --- --- Rs.1,48,36,007.61 --- Rs.1,21,52,580.45 --- Rs.1,29,35,852.10 Rs.1,35,33,604.80 Rs.1,22,15,803.75

#20. on formula adopted by the State Public Works Department, which is :- The petitioner in his reply affidavit has indicated the conversi 1 sq.m = 0.115 cu.m. Thus, Rs.100.00 per sq.m would be equal to Rs.869.56 per cu.m. A pplying this formula, the rates offered by the bidders and the difference betwee n the two rates would be as follows :- Kamal Singh Dugar M/S J.C. Construction

#1. .82 per cu.m 2. 5.00 per cu.m 3. Uzir Ali -- -- Rs.799.00 per sq.m Rs.1,200.00 per sq.m -- -- Rs.6,947 Rs.10,43 cu.m

#4. cu.m M/S Hemen Deka -- Rs.5,000.00 per sq.m -- Rs.4,400.00 per sq.m -- -- Rs.38,260.00 per Rs.43,478.00 per In their further affidavit dated 22-02-2012, the respondents have admitted the c onversion formula furnished by the petitioner but have stated that the converted rates are exorbitantly high, after comparing those with the Assam Public Works Department rate for the year 2010-11 which is Rs. 4,734.21, taking the unit of m easurement as cu.m. The respondents have themselves stated that the project is a time bound one, required to be completed within December, 2013. Comparing the p etitioner’s rate of Rs.6,947.82 per cu.m for the period from 2011 to 2013 i.e., for the years 2011-2012 and 2012-2013 with the Assam Public Works Department rat e of Rs.4,734.21 for the year 2010-11, it cannot be said to be exorbitant as arg ued by the respondents. Considering the prevailing inflationary trend in the cou ntry, the above rate cannot be termed as exorbitant. The further contention of t he respondents that it could not be ascertained as to whether all the bidders ha d quoted their respective rates based on sq.m or cu.m is wholly untenable and ha s been recorded only to be rejected. As has already been noticed, all the bidder s have furnished their rates by putting their initials against the item of work No.7 where the unit of measurement is clearly shown as M2 i.e., sq.m. Therefore, it is quite clear that the bidders had quoted their respective rates consciousl y on the basis of the unit of measurement of sq.m. i.e., M2. Moreover, none of t he other bidders have lodged any complaint, at least not brought to the notice o f the Court, that they had quoted their rates based on the measurement unit of c u.m. i.e., M3. Furthermore, if it is a time bound project, as claimed by the res pondents, the endeavour should be to complete the work at the earliest, which wo uld be in the public interest as otherwise, it may lead to avoidable complicacie s and price escalation.

#21. In that view of the matter, both the grounds given by the respon dents for cancellation of the price bids and calling for fresh price bids from a mongst the existing four bidders does not stand to reason. In this case, the mis take, though claimed to be inadvertent, was committed by the respondents themsel ves. Interestingly, the same was not (cid:28)detected (cid:29) during the technical scrutiny. T he same came to the notice of the Bid Evaluation Committee (as per the version o f the respondents) only during evaluation of the price bids when the price bids were out in the open and the petitioner’s bid was found to be the lowest (L-1). The above gives enough room to doubt the bonafides of the said action. This is a case where the goal post is sought to be changed after the match has commenced. Moreover, the contract work in question is not one where a great deal of techni cal expertise is required. It is only construction of the boundary wall of the s ub-station. It is not a case where a (cid:28)mistake (cid:29) such as the present one, would im pact the contract work in any major way. In view of the above, the reasons given for cancellation of the 22. price bids and for calling fresh price bids do not appeal to the Court. It is tr ue that the authority cannot be tied down by any rigid rule while taking a decis ion to award a contract and that there is no such rule that the contract must be awarded to the L-1, come what may. But at the same time, it must be ensured tha t the authority acts in a fair and reasonable manner consistent with the public interest and maintaining the sanctity of the tender process. In the opinion of t his Court, the course of action adopted by the respondents in the present case, appears to be neither reasonable nor in the public interest. If the proposed cou rse of action is allowed, grave doubts will be cast on the fairness and sanctity of the tender process, which will be against the public interest.

#23. The decision in the case of M/S Monarch Infrastructure (P) Ltd. (supra) relied upon by the learned counsel for respondents lays down the well kn own principles governing judicial review in matters relating to award of contrac t. Needless to say, when the authority acts in an unfair, arbitrary and unreason able manner which is brought to the notice of the Court, it would be the duty of the Court to step in and interdict in a positive manner to safeguard the fundam ental principles embodied in Article 14 of the Constitution, which would advance the public interest.

#24. For all the aforesaid reasons, the writ petition is allowed. The letter dated 05-12-2011 issued by the respondent No.4 (Annexure-2) is hereby se t aside and the respondents are directed to finalize the tender process followin g the opening of the price bids on 10-10-2011, by applying the conversion formul a for converting the rates submitted on the basis of sq.m. to cu.m., if consider ed necessary.

#25. the respondents. The original price bids are returned to the learned counsel for

#26. No cost.