Mr. Rodney Almeida v. Oil & Natural Gas Corporation & Ors.

M/s Abhi Constructions Co., Sole Proprietary concern of Mr. Rohit N. Patel, aged about 31 years, Indian National having office at 2, Lakulesh Avenue Delux Char Rasta, Nizampura, Vadodara 38002, Gujarat. V e r s u s

1. Oil & Natural Gas Corporation, a company registered under the Companies Act, 1956, having its registered office at IPSHEM, ONGC, Betul, Salcette, Goa, through its Chief Manager

2. M/s Hariyali Nursery, Sole proprietary concern of Mr. Venkatesh Prabhudessai, Shop No.26, Kamat Plaza, St. Inez, Panaji Goa.

3. M/s Rodney Roses and Garden Centre, Sole proprietary concern of Mr. Rodney Almeida, H.No.87, Seraulim, Salcette Goa. ... Respondents Mr. Amey Kakodkar, Advocate for the Petitioner. Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Respondent No.1. Mr. Nigel da Costa Frais, Advocate for the Respondent No.2. Mr. A. F. Diniz, Advocate for the Respondent No.3. 3 Coram :- S. J. VAZIFDAR U. D. SALVI, JJ. Date : 26 th March, 2010. ORAL ORDER: (Per S. J. Vazifdar) The Petitioners have challenged the grant of a tender by Respondent no.1 in favour of Respondent no.2, Ms. Hariyali Nursery, for the maintenance of parks, gardens, orchards and other landscaped areas at Ipsem, Goa. Each of the Petitioners have also sought an order directing Respondent no.1 to award the tender in their favour.

2. Even if we had set aside the award of the tender in favour of Respondent no.2, we would not in the facts of this case have awarded the tender in favour of either of the Petitioners but would have directed fresh bids to be invited. We are, however, inclined to dismiss the Writ Petitions.

3. By a notice dated 06.03.2009, Respondent no.1 invited tenders for the said work. The contract was to be for a period of three years. The main contention was based in Clause 2.1(a) under the caption "BID REJECTION CRITERIA", which in turn is contained in Annexure IV-A pertaining to the "BID EVALUATION CRITERIA". There is no dispute that the said clause is a vital term. 4 B. REJECTION CRITERIA B.1 Technical rejection criteria The following vital technical conditions should be strictly complied with failing which the bid will be rejected:

1.0 Bid should be complete and covering the entire scope of job/ supply and should conform to the technical specifications indicated in the bid documents, duly supported with technical catalogues/ literatures wherever required. Incomplete and non – conforming bids will be rejected outright.

2. Eligibility and experience of the bidder:-

2.1(a) The bidder should have minimum 02 [two] years of experience during last 5 [five] years reckoned from the date of techno- commercial bid opening in providing Horticulture/ Arboriculture services. During the two years experience as mentioned above, the bidder should have executed/provided at least 1 [One] contract of value Rs.13.00 lakh or more, pertaining to Horticulture/Arboriculture services. Documentary evidence in support of above 5 experience like contract agreement or work order or satisfactory completion of services should be furnished along with techno- commercial bid failing which the bid shall be rejected. The documentary evidence must be in form of Notarized Copy or attested copy by Public Notary or gazetted officer. Note: Horticulture/Arboriculture services mentioned above includes Maintenance of Parks, Gardens, Orchards, landscaped area and development of Parks, Gardens, Orchards & landscaped area.

2.2 Details of experience and past performance of the bidder and the collaborator ( in case of collaboration) or of joint venture partner ( in case of a joint venture), on works/jobs done of similar nature in the past and details of current in hand and other contractual commitments, indicating areas and clients are to be submitted along with the techno- commercial bid, in support of the experience laid down at para 2.1(a) and 2.1(b) above.

4. It was contended on behalf of the Petitioners that Respondent no.2, the successful bidder, did not tender the necessary documents stipulated in clause 2.1(a) initially. The Petitioners' grievance is that 6 Respondent no.1 permitted Respondent no.2 to furnish further documents in order to enable Respondent no.2 to comply with the tender conditions which was not permissible. The tender of Respondent no.2 ought to have been rejected without giving Respondent no.2 an opportunity of furnishing documents later thereby correcting the errors in respect of admittedly vital provisions of the tender documents.

5. The entire matter turns on the interpretation of the above clauses and especially clause 2.1(a).

6. The Petitioners submitted that on a correct interpretation of the said clauses, a tenderer is bound to furnish, inter alia, documentary evidence in support of satisfactory services in addition to documentary evidence in support of the experience as stipulated in clause 2.1 (a). According to them the tenderer must furnish not only proof of experience, of having been awarded such contracts but also completion certificate in proof of having successfully implemented the same.

7. Mr. D'Costa, the learned Senior Counsel, appearing on behalf of Respondent no.1 and Mr. Costa Frais the learned Counsel appearing on behalf of Respondent No.2, the successful tenderer, on the other hand, submitted that a tenderer was entitled to furnish any one of the documents referred to in clause 2.1 (a). The submission is well founded. 7

8. The eligibility criteria is that a bidder should have a minimum of two years of experience during the previous five years and during the said two years the bidder should have executed/provided atleast one contract of a value of Rs.13,00,000/- or more. This is the eligibility criteria. To support the same, a tenderer was required to produce evidence "like” that mentioned in Clause 2.1(a). In other words, Respondent no.1 required any satisfactory evidence “like” that stated therein and not necessarily only the very documents stated therein, namely contract agreement, work order or documents in support of completion of satisfactory services. Whether a document furnished satisfies the requirements of clause 2.1 (a) or not is another matter and must normally be left to be determined by the first Respondent.

9. However, there is nothing in the clause which requires a tenderer to produce every document of the nature mentioned therein. Indeed, as stated above, it was not even necessary for a tenderer to furnish the type of documents mentioned in cause 2.1 (a). A tenderer was entitled to produce evidence “like” those documents. Thus, the tender could not have been rejected even if the evidence in support of experience was not a contract agreement or a work order or a satisfactory completion 8 of services certificate. In that event, there is no warrant for reading the word "or" as "and".

10. The submission on behalf of the Petitioners was that this would logically follow as the mere award of a contract or work order would not necessarily establish or even indicate that the same had been satisfactorily completed. The submission is not well found. It was for the Petitioner to determine the evidence necessary to satisfy it about the capability of a tenderer to perform the contract successfully. It is not open to a party to dictate the manner or circumstances in which the ability of a party to perform a contract ought to be determined. These aspects must be left to the client. It is not open to the Court to interfere with the criteria adopted by the State to be satisfied about the ability of the tenderer to perform a contract successfully. So long as these tests are not arbitrary or mala-fide, there is no scope for judicial interference with the exercise of discretion by the State or the instrumentalities of the State.

11. Along with the initial tender, the Respondent no.2 had inter- alia forwarded a letter of acceptance/work order dated 31.12.2005 addressed to him by the Goa State Infrastructure Development Corporation Ltd. stating that it had accepted the tender of Respondent no.2 in the sum of Rs.36, 57,495.60. It was not necessary for Respondent No.2 9 to also produce a certificate of satisfactory completion of the contract. Respondent no.1 could, therefore, not have rejected the tender of Respondent no.2.

12. In this view of the matter, it is not necessary for us to consider the other submissions on behalf of the Petitioners to the effect that the first Respondent was not entitled to permit Respondent no.2 to rectify the mistakes in the submission of the tender. There was no mistake. Respondent no.1, did in fact, seek various clarifications and further evidence from Respondent no.1. It is not necessary to consider whether it was open to Respondent no.1 to do so as the only party that could object to the same was Respondent no.2. Respondent no.2 having been awarded the contract, has naturally not questioned the same.

13. Considering the view that we have taken, we refrain from referring to the rather detailed narration of facts by Mr. D' Costa to establish that there were no mala-fides on the part of Respondent no.1. We are satisfied that there are none. We also refrain from referring to the details of the Suit filed by the Petitioners in Writ Petition no.833/2009. Mr. Da Costa submitted that the same was filed mala-fide. Suffice it to state, that the order of the Civil Courts sealing the file pertaining to the tender was not warranted especially as it was made ex-parte, without 10 notice to Respondents No.1 and 2 and during the pendency of the appeal filed by the first Respondent from an interlocutory order. Incidentally, the interlocutory order had granted the application of the Petitioner in Writ Petition no. 833/2009 to allow him to continue to work for the first Respondent under the earlier contract which he had obtained. The order was rightly set aside in appeal.

14. Mr. Diniz had on taking instructions undertaken on behalf of the Petitioner to unconditionally withdraw the Suit. The undertaking is accepted and shall be complied with within two weeks from today.

15. The files pertaining to the tender shall be handed over to Respondent No.1 on or after 15th April 2010.

16. In the circumstances, the Writ Petitions are dismissed. No order as to costs. S. J. VAZIFDAR, J. U. D. SALVI, J. arp/*