High Court
Case Details
WP(C) 5073/2012 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Judgment & Order (Oral) Heard Mr. GN Sahewalla, learned Senior Counsel for the petitioner and Mr. S Cham aria, learned Standing Counsel, Industries & Commerce Department, Govt. of Assam . By way of this writ petition, under article 226 of the Constitut 02. ion of India, petitioner seeks direction to the respondents to issue work order in his favour pursuant to Invitation for Bid (IFB), issued by the Executive Engi neer, Industries & Commerce Department, Assam for construction of RCC office bui lding for ADC 1 office, Bajali, Pathsala and ADCI Office, Sonari, Charaideo. 03.
Legal Reasoning
Facts of the case may be briefly noted. 04. Petitioner is a registered Class-1 A contractor in the Industrie s and Commerce Department, Govt. of Assam. He is an experienced contractor of th e Department. 05. IFB issued by the Executive Engineer, Industries & Commerce Depa rtment (respondent No. 3) was published in the News Paper on 18.02.2012, invitin g sealed tenders from eligible contractors for the following works; 1) Construct ion of RCC office Building for ADC1 office, Bajali, Pathsala in the district of Barpeta and 2) Construction of RCC office Building for ADC1 office, Sonari, Char aideo in the district of Sivasagar. For both the works, experience required was, ’completion of at least one single work of similar nature value not less than R s. 35 lakhs on or after 01.04.2006. Petitioner being eligible, submitted tender for both the works. 06. Sealed tenders were opened for the technical bids on 28.02.2012. On opening of t he bids, it was found that bid of the petitioner was valid in all respects. Meet ing of Tender Selection Committee was held on 09.04.2012, wherein, technical bid of the petitioner was found to be valid. It was then decided to open the price bid. 07. Price Bid of the valid tenderers were opened on 02.05.2012. It w as found that the price bid of the petitioner was the lowest in respect of both the works. 08. In view of above, petitioner was expecting issuance of work orde r in his favour for both the works, but when such work order was not issued and a considerable period had lapsed, petitioner submitted pleader’s notice dated 24 .08.2012 to respondent No. 3. In response, respondent No. 3 informed petitioner’ s counsel that process for awarding contract was under process and the work orde r to the eligible bidder may be issued after completion of the official formalit ies. 09. However, even thereafter, the work order was not issued. In the meanwhile, petitioner obtained information under the Right to Information Act, 2 005 that three bidders for each of the works had qualified as valid tenderers as per minutes of Tender Selection Committee meeting held on 09.04.2012. According ly, financial bids of those valid tenderers were opened and the said Committee, on consideration of the financial bids, selected the first lowest bidder (L 1) f or each of the two works as per meeting of the Tender Selection Committee held o n 02.05.2012. The minutes of the Tender Selection Committee meeting were placed before the departmental Commissioner for appraisal. 10. Aggrieved by non-issuance of work order despite being the lowest (L1) tenderer for both the works, petitioner has filed the present writ petitio n seeking the relief as indicated above. 11. This Court by order dated 18.10.2012 issued notice, and, in the interim, restrained the respondents from issuing fresh NIT. However, liberty was granted to the respondents to finalize the tender process initiated through the IFB dated 18.02.2012. 12. Respondent No. 3 has filed affidavit. It is stated therein that as per the order constituting the Tender Selection Committee, approval of the de partmental Commissioner is required on the recommendation of the Committee. Acco rdingly, the minutes of the Tender Selection Committee meeting held on 02.05.201 2 were placed before the Commissioner, who directed re-examination of IFB. Matte r was, thereafter, placed before the Tender Selection Committee. In its meeting held on 31.08.2012, the Committee observed that the experience condition in the bid documents were not as per CVC guidelines. Minutes of the said meeting were p laced before the Commissioner, who directed cancellation of the bids and suggest ed re-tendering complying with CVC guidelines. 13. In his reply-affidavit, petitioner has stated that cancellation of IFB after opening of both the technical and financial bids, whereafter petiti oner was found to be the L 1 tenderer, is not justified. 14. In the course of hearing on 05.09.2013, learned Standing Counsel sought for time to ascertain as to whether petitioner, who is otherwise the low est tenderer, fulfils the pre-qualification criteria laid down by the CVC. On 26 .09.2013, learned Standing Counsel submitted that the petitioner fulfills pre-qu alification criteria laid down by CVC. 15. Perusal of the minutes of the Tender Selection Committee meeting held on 31.08.2012 would show that petitioner fulfilled all the conditions, fin ancial and technical, laid down in the IFB. It was also found that as the availa ble bid capacity of the petitioner (L1) amounting to Rs.17,06,79,198.60 (as per bid document) and Rs.11,23,18,023.00 (as per APWD bid documents) is more than th e combined bid value of Rs.3,47,73,509.00 for both the works, petitioner (L 1) w as qualified for both the works. The committee also observed that the turn over of the petitioner (L 1) as certified by Chartered Accountant for last three year s were as under:- 2008 - 2009 2009 - 2010 2010 - 2011 Average Turn Over 30% of the combined estimated cost (for both the works) = = = Rs. 1,04,32,053.00. : : : Rs. 2,50,75,613.00 Rs. 2,28,44,818.00 Rs. 1,49,71,012.00 Rs. 3,74,11,010.00 Rs.3,47,73,509.00 x 0.3 As such, the Committee observed that the petitioner (L 1) had fu 16. lfilled the Annual Turn Over Criteria as per CVC guidelines. Though, petitioner fulfilled the experience criteria as per IFB, as per CVC guidelines, experience criteria should have been as under:- The tenderer should have experience of having successfully completed similar wor ks during seven years in the following manner - a) Three similar completed works costing not less than the amount equal to 40% o f the estimated cost, b) Two similar completed works costing not less than the amount equal to 50% of the estimated cost, or c) One similar completed work costing not less than the amount equal to 80% of t he estimated cost. or 17. According to the Tender Selection Committee, the experience cond ition as laid down in the IFB was not as per CVC guidelines. Therefore, it sugge sted that in future, tender documents should be prepared as per CVC guidelines. 18. Though the experience requirement under the IFB was not as per C VC guidelines, it is quite evident that petitioner has the experience requiremen t as per CVC guidelines as well, which was noticed by the Tender Selection Commi ttee. As already noticed, petitioner is the L1 tenderer in respect of both the t ender works. That being the position, there would be no justification to withhol d the award of contract to the petitioner and to go for fresh tender, which may lead to avoidable delay and resultant price escalation. Thus, taking an overall view of the matter and in the public interest, issuance of work order to the pet itioner would be justified. In that view of the matter, respondent No. 3 is directed to issu 19. e the necessary work orders in favour of the petitioner for both the works pursu ant to the IFB dated 18.02.2012 within a period of one (1) month from today.
Decision
20. no order as to costs. Writ petition is, accordingly, allowed. However, there shall be