High Court
Case Details
WP(C) 6092/2012 BEFORE THE HON’BLE MR. JUSTICE B. K. SHARMA Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. B. Chetri, learned State Counsel as well as heard Mr. P. Sharma, learned counsel representing the respondent No.6. By means of this writ petition the petitioner has put to challenge the w ork order dated 03.12.2012, issued in favour of respondent No.6 by the Chief Exe cutive Officer, Sonitpur Zilla Parisad. In pursuant to the Short Tender notice N o. SZP 618/Pt/2011-12/5478 dated 16.08.2012, pertaining to the work (cid:28)Constructio n of GP Secretary, and Grade IV GP quarter at Balipara, Balipukhuri, Dekargaon & Ghoroimari Gaon Panchayat (cid:29). The petitioner assailed the said order on the groun d that he being the lowest tenderer at his bid rate of Rs. 17,60,000/-, the work could not have been allotted to the respondent No. 6 at 10.50% below which is R s. 19,69,000/-. The short tender notice was issued on 16.08.2010 for the aforesaid work, in resp onse to which the petitioner along with 6 others submitted their tenders quoting the below mentioned rates: Apurba Sen Deka (Petitioner) Bid Status Appu Enterprise L-2 SI. No. Name of Tender 1. (Rs. 17,60,000/-) 2. -) 3. -) 4. ,055/-) 5. -) 6. Musibur Rahman Arup Sen Deka Arun Talukdar L-3 L-4 L-5 Rate Quoted L-1 20% below 14% below (Rs. 18,92,000/ 11% below (Rs. 19,58,000/ 11%, 10.50% & 12% below (Rs. 19,58 10.50% below (Rs. 19,69,000/ Ranjit Saikia (Respondent No.6) L-6 10.50% below (Rs. 19,69,000/-) 7. /-) Parag Saikia L-7 10.50% below (Rs. 19,69,000 From the above what is seen is that the bid value offered by the petitio ner is the lowest and on the other hand the bid value offered by the tenderers a t serial No. 5, 6 & 7 is the same i.e., at Rs. 19,69,000/-.
Legal Reasoning
While entertaining the writ petition the learned State Counsel was direc ted to produce the relevant records for early disposal of the matter. Mr. Chetri , learned State Counsel has produced the records. He has also referred to the co unter-affidavit filed by the respondent No. 5 in which the minutes of the meetin g of the Tender Committee held on 07.11.2012 has been annexed. Along with the af fidavit the copy of the work order dated 03.12.2012 and the comparative statemen t have also been annexed in (Annexure B-1 & B-2) respectively. On perusal of the affidavit as well as the minutes of the Tender Monitor ing Committee in the meeting held on 07.11.2012 what is found is that it is only after receiving of the tenders and processing of the matter, the tender Committ ee finally decided to keep 10.50% as the average cut off percentage with the sti pulation that below the said rate the work would not be assigned to the contract ors. For a ready references the relevant portion of the minutes of the meeting h eld on 07.11.2012 is quoted below:- (cid:28)After threadbare discussion and based on the following points, the house finally decided to keep 10.5% as the average cut off percentage below which the work can not the assigned to the contractors. 1. As the Contractors profit margin for civil works is 10% so the house tak es it for the consideration that 10% less can be granted with a view that work c anbe executed with zero profit. 2. The House also decided that lowest bidder i.e. 20% cannot be accepted be cause there will not be any chance to get any profit margin and there will be ev ery chance of incompletion of work or defaulter in the work etc. 3. The House also takes it to the consideration that another 0.5% less can be bear by the contractors. This is also to check the bearing capacity of the Co ntractors as Sonitpur Zilla Parishad has to call on tender for similar works in future. The CEO, Sonitpur Zilla Parishad inform the house that the fund to the Contracto rs will be release in instalments, i.e. 25% of sanctioned amount will be release d as the 1st instalment and on submission of UC/ Photographs/ Progress report al ong with bills duly verified by the Executive Engineer Sonitpur ZP Tezpur the ne xt due instalments will be released to the Contractors. The House decided that Executive Engineer, Sonitpur Zilla Parishad, Tezpur will inspect and monitor the works executed by the concerned contractors, in order to ensure proper utilization of fund as well as quality of works. The CEO, Sonitpur Zilla Parishad also requested the Executive Engineer, Sonitpur Zilla Parishad, Tezpur to prepare the work order for all the works so that same can be issued to the Contractors in time. Sri. H. Bora, EE, Sonitpur Zilla Parishad, Tezpur informed the house that the se curity deposit to be deducted from the estimated amount from the Contractors wil l be as per Government norms. Finally the House requested the EE, Sonitpur Zilla Parishad, Tezpur to prepare a ll the relevant paper to be handed over to the contractors at the time of agreem ent and to submit the same to the Chief Executive Officer, Sonitpur Zilla Parish ad and Tezpur in time. (cid:29) On being asked to place the minutes of the meeting that decided to allot the work order to the respondent No.6, both Mr. Chetri, learned State Counsel a nd Mr. Sharma, learned counsel representing respondent No.6 have submitted that there is no separate minutes of any meeting, allowing the work order in favour o f the respondent No.6, but the work has been allotted in favour of the responden t No.6 by order dated 03.12.2012 (Annexure-B- 1 of the counter affidavit) follow ing the above quoted minutes of the meeting held on 07.12.2012 Apart from fact that no viability range was fixed before the issuing the NIT and the same was fixed latter on, there is also nothing to show that the te nder committee recorded any finding to allot the work order in favour of respond ent No.6. The file produced by Mr. Chetri does not contain any such decision of the tender Committee. Mr. M. Biswas, learned counsel for the petitioner has placed reliance on the decision reported in (1997) 1 SCC 53 (Dutta Associates Pvt. Ltd Vs. Indo Me rchantiles Pvt. Ltd. And Others). In the said decision the Apex Court having not ice that the NIT did not specify (cid:28)viability Range (cid:29) nor they did say that only th e tenderers coming within the viability range will be consider, the fixation of the (cid:28)viability range (cid:29) after words was not sustainable. It was held that the enti re procedure evaluate by the Commissioner and the Government of Assam in accepti ng the tender of the appellant was opposed to the norms which is required to be followed in such matters for its openness and transparency and fair dealing. In the instant case also the tender notice itself did not specify any vi ability range. It also did not specify that the viability range would be determi ned at latter point of time. However, after receiving the tenders, the aforesaid meeting was held on 07.12.2012, fixing the viability range even without followi ng clause- 1 of the above quoted portion of the minute wherein after observing t hat 10% less can be granted with a view that work can be achieved with a zero pr ofit, the minutes, however, further recorded the decision to keep 10.50% as the average quote for percentage below which the work cannot be assigned to the cont ractors. There is also absolutely no reason as to why the other contractors at s erial No. 5 & 7 who have quoted the same bid amount could not be considered and why the respondent No.6 alone was picked up for allotment with the work. Thus, t here is total lack of transparency and fairness, it requires interference of thi s work with the work order dated 03.12.2012.
Decision
The writ petition is allowed interfering with the work order dated 03.12 .2012 and accordingly the same stands set aside and quashed. The matter shall no w go back to the official respondents for reconsideration. Let the reconsiderati on be made by the respondent authority as expeditiously as possible, but at any rate, not later than 15th March, 2013.