Judgment · High Court · 2012

The appellant, a tenderer in the fray for securing the project of (cid:28)Stren gthening and construction of paved shoulders including rehabilitation/ repairing of bridges from Km 325.000 to 344.000, Km 351.000 to 355.000 and from Km 357.00 0 to 400.000 (Total length = 66 Km) of NH-37 in the State of Assam. (Job No. 037 -AS-2011-12-097) (cid:29) under the Public Works Department of the State having been dis qualified in the process of shortlisting the pre-qualified bidders therefor, has posted the instant challenge being aggrieved by the vacation of the interim res traint granted by this Court interdicting the respondents from opening and proce ssing the financial bids pending adjudication of the issues on merit. We have heard Mr P Pathak, Senior Advocate assisted by Mr SK Medhi, Advo cate for the appellants and Mr I Chowdhury, learned Standing Counsel, Public Wor ks Department, Govt. of Assam for the State respondents. Having regard to the constricted scope of assailment in the instant appe al, the facts in bare essentials would be adverted to. Following a Press Notice dated 19.5.2011 inviting Request for Qualificat ion issued by the Chief Engineer, PWD (NH Works), Assam in respect of the aforem entioned work mentioning the approximate tender value thereof to be Rs. 15378.23 Lakhs, a Notice bearing No. NHR.39/2010/Pt/4 dated 6.6.2011 was published from the office of the aforementioned authority inviting bids for prequalification fo r the purpose of shortlisting tenderers for eventual selection for entrustment o f the works. The appellants responded to this notice and submitted their tender. According to them, the same was accompanied by all supporting documents and tes timonials as required in terms of the Notice. They submitted their bid on 28.7.2 011 and while waiting in bonafide expectation that they would be adjudged as one of the pre-qualified bidders, they received a letter dated 17.8.2011 of the Chi ef Engineer, PWD (NH Works), Assam requesting them (appellants) to submit an aff idavit to the effect that the informations furnished by them in the Application Form (4) of the pre-qualification document were true and correct. The appellants accordingly submitted an affidavit on 24.8.2011 along with a forwarding letter. However, as even thereafter nothing was forthcoming from the respondents and th ey (appellants) having learnt meanwhile that certain unscrupulous elements with vested interest had lodged a propaganda against them to disqualify them on the g round that they had furnished incorrect informations about their on-going works, the appellants/ writ petitioners by their letter dated 16.11.2011 addressed to the aforementioned departmental authority requested for consideration of their b id without being dissuaded by such vilifications. The appellants also addressed a letter dated 12.12.2011 to the Ministry of Road Transport & Highway, Governmen t of India requesting its intervention to stem this evil design. The appellants followed up their endeavours by making further communications to the concerned a uthorities of the Government of India contending inter alia that they were, as p er the terms and conditions of the pre-qualification documents, fully qualified to be shortlisted as a pre-qualified bidder. Referring to the omission on their part to disclose the particulars of one of their on-going works, namely, (cid:28)Constr uction of Road Overbridge in lieu of level crossing No. 53-Cat Km. 82/13-14 on D elhi-Rewari-Bhatinda Railwayline Xing Bhiwani-Toshan Road (MDR-108) at RD 85.04 in Bhiwani District (cid:29) in the list of 27 works mentioned in their affidavit filed on 24.8.2011, the appellants contended that it was due to inadvertence but of no relevance as the value of their other current/ on-going assignments was much ab ove the estimated value of the works proposed to be settled. The writ appellants in this frame of developments being driven by the apprehension that they would stand disqualified for their omission to mention the aforementioned work approac hed this Court for redress. A Single Bench of this Court in WP(C) 1254/2012 registered on the writ a ppellants’ application under Article 226 of the Constitution of India to the abo ve effect, while issuing notice, directed the respondents not to open and proces s the financial bids that might be received in connection with the works in ques tion and, in the interim, permitted the writ appellants to submit their financia l bid on-line. It was thereafter that an application was filed on behalf of the State responden ts asserting inter alia that on initial scrutiny of the tender submitted by the writ appellants along with the necessary documents accompanying the same, more p articularly, the affidavit dated 25.7.2011 with the Application Form (4) appende d thereto, it transpired that the 17 items of works as mentioned therein did not include certain other on-going projects undertaken by them under the Government of Assam in the Public Works Department and, therefore, by the letter dated 17. 8.2011, the Chief Engineer. PWD (NH Works), Assam requested them to submit an a ffidavit disclosing as to whether the informations furnished by them in the Appl ication Form (4) in connection with the current contract commitments/ works in p rogress were true and correct. It was thereafter that the appellants submitted a n affidavit along with a fresh Application Form (4) with a forwarding letter da ted 24.8.2011 which disclosed 10 additional items of works not initially enumera ted in Application Form (4) accompanying the affidavit dated 25.7.2011. Accordin g to the respondents, a thorough evaluation of the tender was thereafter made fo llowed by an additional round of scrutiny by a high powered screening committee which disclosed that inspite of having been provided with opportunity, the appel lants had failed to disclose the particulars of another on-going work i.e. (cid:28)Cons truction of Road Over Bridge in lieu of level crossing No. 53-C at Km 82/13-14 o n Delhi-Rewari-Bhatinda Railway Line Xing Bhiwani-Tosham Road (MDR-108) at RD 85 .04 in Bhiwani District amounting to Rs. 4.19 Crores having value of balance wor k yet to be completed of Rs. 2.00 Crores only. (cid:29). The respondent authorities construed this omission on the part of the appellants to be in transgression of the pre-qualification norms amounting to repeated mis -representations for which the appellant firm was disqualified. The respondents further averred that this decision was reaffirmed by a review meeting of the eva luation committee held on 18.1.2012. According to them, the detailed particulars of the on-going works/ existing commitments were necessary for calculation of t he bid capacity of a bidder as per the formula prescribed in Clause-2.6.9 of the tender terms and that in terms of Clause-2.6.10 thereof the record (s) of poor performance was a relevant factor in the matter of evaluation of the competing b ids. In their written objection to this interim application, the appellants contended that it was a normal practice of the departmental authorities to allow the pros pective bidders to submit further affidavits updating the particulars and status of the on-going works having a bearing on the pre-qualification assessment of t heir bids and that they had mentioned initially the particulars of the 17 on-goi ng major projects perceiving those to be sufficient for the assessment of their suitability. While denying the imputation of mis-representation for the purpose of misleading the departmental authorities, the appellants pleaded that they in order to further consolidate their position listed in addition 10 more on-going projects in Application Form (4) accompanying their affidavit dated 24.8.2011. T hey reiterated that their omission to mention one work was out of sheer inadvert ence and that the same, in any view of the matter, did not have any adverse imp act on their bid capacity or capability to execute the work for which the proce ss of inviting pre-qualified bidders had been initiated. They also submitted in details about their performance vis-à-vis the works enumerated in Application Fo rm (4) annexed to the affidavit dated 24.8.2011. The learned Single Judge by the order impugned vacated the interim restraint and permitted the respondents to consider the financial bids of the technically res ponsive tenderers who had qualified in the pre bid process. A direction was also made to exclude the financial bid of the appellants. It was held that the appel lants not having disclosed complete information(s) about their current commitmen ts so as to enable the departmental authorities to evaluate their bid capacity, they stood disqualified under Clause-2.6.10 of the tender terms and that the del ay in consideration of the financial bids of the pre-qualified tenderers had the potential of adversely affecting a public project. Mr Pathak has emphatically urged, referring in particular to Clause-2.11.4 of th e tender terms, that as it was incumbent on the part of the respondents to infor m the appellants about the result of their bid, the whole process undertaken the reafter stood vitiated by such a failure and that, therefore, the learned Single Judge ought to have ensured that the finalization thereof was kept in abeyance till the adjudication of the issues raised in the writ petition. The learned sen ior counsel, as pleaded by the appellants, dismissed the omission on their part to recite the particulars of all on-going/ current projects undertaken by them a s well as the omission to mention one such work not included in the list appende d to the affidavit dated 24.8.2011 to be wholly inconsequential vis-à-vis the pr ocess of evaluation of their bid capacity. Mr Chowdhury per contra with reference, in particular to Clause-2.6.10 and 2.11. 3, has urged that for the repeated omissions on the part of the appellants to d isclose the particulars of all their on-going works, they were rightly disqualif ied qua their pre-qualification bid and, thus, no interference with the impugned order is called for. According to Mr Chowdhury, disclosure of all on-going/ cur rent works of a bidder is of definitive significance in view of the formula cont emplated in Clause-2.6.9 to determine the bid capacity. The learned counsel has urged that the omission of the appellants to disclose the particulars of all of their on-going/ current works initially at the time of submission of their bid a nd even thereafter on being asked to do so did amount to false representation as contemplated in Clause-2.6.10 and as the same had the potential of misleading t he departmental authorities, the appellant firm had been rightly disqualified. T hat the departmental authorities were under no obligation under the tender terms to disclose the ground(s) for disqualifying a bidder was also stressed upon by referring to Clasue-2.11.3. The attention of this Court was also drawn to the A pplication Form (4) making it incumbent on the bidders to disclose all informati ons about their current commitments on all contracts etc. We have duly extended our consideration to the pleadings to the extent necessary for the disposal of the instant appeal and have also analysed the arguments adv anced. That the disclosure of the informations regarding current commitments on all contracts awarded to the bidders and underway is an essential tender stipula tion having a definitive bearing to adjudge their bid capacity is prima facie bo rne out by Clause-2.6.9 read with the Application Form (4). It is a matter of re cord that the appellants had neither disclosed the particulars of all of their c urrent/ on-going works in the Application Form (4) submitted with their tender a t the first instance on 25.7.2011 nor with their affidavit submitted on 24.8.201 1. In response to a query made by the departmental authorities, they submitted a fresh Application Form (4) listing in all 27 such works. Evidently, 10 addition al items of works were added to the earlier list submitted with the tender. The appellants have admitted further to have omitted to mention the particulars of o ne more work. Noticeably, there is also no indication as to the extent of progre ss in the works vis-à-vis Item Nos. 18 to 27 as set out in Application Form (4) accompanying the affidavit dated 23.8.2011 submitted along with the forwarding l etter dated 24.8.2011. The conclusion of the learned Single Judge in the above conspectus of facts that in the attendant facts and circumstances the appellants stood disqualified as p er Clause-2.6.10 is, thus, a plausible one. The pleadings of the writ appellants prima facie suggest that they were aware of the rejection of their bid on the g rounds adverted to by the State respondents in their interim application even be fore the institution of the writ proceeding. The plea based on Clause-2.11.4, th erefore, lacks in persuasion. In the above view of the matter, we feel disinclined to interfere with the impug ned order. The appeal is, thus, dismissed. The learned Single Judge is requested to dispose of the writ petition expeditiou sly without being influenced by any observation made hereinabove, the same havin g been recorded to deal exclusively with the issues raised in the instant appeal . No costs.