The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2142 of 2023, W.P.(C) No.2143 of 2023 & W.P.(C) No.2144 of 2023 W.P.(C) No.2142 of 2023 Suchitra Construction, Balasore …. Petitioner Mr. Sameer Kumar Das, Advocate State of Odisha and others W.P.(C) No.2143 of 2023 -versus- …. Opposite Parties Mr. P.P. Mohanty, A.G.A. Mr. S.R. Mohanty, Advocate (For Opposite Party No.5) Suchitra Construction, Balasore …. Petitioner Mr. Sameer Kumar Das, Advocate State of Odisha and others W.P.(C) No.2144 of 2023 -versus- …. Opposite Parties Mr. P.P. Mohanty, A.G.A. Mr. S.R. Mohanty, Advocate (For Opposite Party No.5) Suchitra Construction, Balasore ….
Legal Reasoning
Petitioner Mr. Sameer Kumar Das, Advocate State of Odisha and others -versus- …. Opposite Parties Mr. P.P. Mohanty, A.G.A. Mr. S.R. Mohanty, Advocate (For Opposite Party No.5) CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO Page 1 of 9 Order No.
Decision
ORDER 08.10.2024 06. These matters are taken up through Hybrid mode. 2. In all these writ petitions, a letter No.286 dated 11.01.2023 (Annexure-9) issued by opposite party No.2 where the tender documents of three bidders – Goutam Dwary, Suchitra Construction and Rabindra Rout were returned : and letter No.82 dated 12.01.2023 (Anneuxre-10) where the technical bids of other bidders in respect four works has been considered qualified in the technical evaluation by the opposite party No.3 as this amounts to rejection of the technical bid of the petitioner have been challenged. The petitioners has also prayed for quashing the consequential work order if any, based on the tender process in question, issued in favour of opposite parties who were found to be technically qualified and for a direction to the opposite parties to issue work order in favour of the petitioner. 3. As all the writ petitions have been filed by Suchitra Construction a proprietorship firm represented by its proprietor Benudhar Sethi and arise out of the same tender call notice, TCN No.25/2022/23 dated 08.09.2022 and challenge the same letter No.286 dated 11.01.2023 issued by opposite party No.2 and letter No.82 dated 12.01.2023 the three writ petitions , they are taken up together for disposal . 4. The disputes arise out of TCN No.25/2022/23 dated 08.09.2022 where e-tender process was initiated by the Executive Engineer, RWSS Division, Balasore for online bidding in relation for five projects – Page 2 of 9 Packag e no. 01 02 03 Execution of 5 Nos.New RPWS Schemes (Clubbed up)1.Parad eepapal, 2.Deepapal , 3.Kudia, 4.Nuapur, 5.Badasind hia under Balasore block with 5 Yrs OM of Balasore district Execution of 3 Nos.Retrofi tting RPWS Schemes (Clubbed up), 1.Chhatrap ur, 2.Kaduani, 3.Gohira under Nilgiri block with 5 Yrs OM of Balasore district Execution of 1 No.Retrofit ting RPWS Scheme Name of the work Appx.Valu e of Work (Rs.) Cost of Bid Documents (Rs.) 457.56 10000 Availability of tender online for bidder Period of complet ion 33- days From 16.00 hours of dt.13.09.2022 to 17.00 hours of dt.22.09.2022 Class of Contr actor A & Specia l 356.72 10000 330 days A & Specia l From 16.00 hours of dt.13.09.2022 to 17.00 hours of dt.22.09.2022 363.05 10000 330 days A & Specia l From 16.00 hours of dt.13.09.2022 to 17.00 hours of Page 3 of 9 dt.22.09.2022 358.04 10000 330 days A & Specia l From 16.00 hours of dt.13.09.2022 to 17.00 hours of dt.22.09.2022 323.25 10000 330 days A & Specia l From 16.00 hours of dt.13.09.2022 to 17.00 hours of dt.22.09.2022 04 05 Sardang & Adj. villages under Kharia block with 5 Yrs. OM of Balasore district Execution of 1 No.Retrofit ting RPWS Scheme Tudigadia & Adj.villages under Kharia block with 5 Yrs OM of Balasore district Execution of 3 Nos.Retrofi tting RPWS Scheme (Clubbed up) 1.Jirtal, 2.Kasabaja ypur, 3.Mulakud ei under Bahanga block with 5 Yrs OM of Balasore district Page 4 of 9 5. The petitioner has applied in respect of the work at Sl No.2, 3, 4 and 5. 6. Certain documents were found to be wanting in respect of some of the bidders including the value of all the existing commitment and ongoing works to be completed in next eleven months as per Appendix-1 (1.3 Format). Such bidders including the petitioner were requested to furnish the said documents. The Technical Evaluation Committee in its meeting held on 10.11.2022 along with some other bidders , was found to be technically qualified in respect of the projects at Sl No. 2,3,4,and 5. On the same day the financial bids were opened and the bids of the petitioner were found to be the lowest in respect of the work at Sl. No. 2, 3 and 4. 7. In the meanwhile, complaints were received against the bidders who were declared L-1 (the petitioner) and L-2 to the effect that they had deliberately withheld and submitted false documents to mislead the Department as regards the value of their existing commitments. It is noteworthy that the petitioner had shown ‘NIL’ against the “value of all existing commitments and ongoing work to be completed during next 11 months”. The petitioner had lodged complaint against opposite parties No. 5 and 6. 8. The Technical Evaluation Committee vide its letter dated 11.01.2023 (impugned) communicated to the Additional Chief Engineer, RWSS Circle, Balasore , that the petitioner , one Goutam Dwary and one Rabindra Rout had not submitted the updated value of existing commitment and tried to hide the facts relating to the existing commitment. Another meeting of the Technical Evaluation Committee Page 5 of 9 was held on 12.01.2023 where the petitioner, Goutam Dwary and one Rabindra Rout had earlier been declared as technically qualified were declared to be disqualified .This is the background in which the letters dated 11.01.2023 and 12.01.2023 were issued . 9. Mr. Sameer Kumar Das, learned counsel appearing on behalf of the petitioner has vehemently argued that the terms of Clause- 26.2 of the DTCN lay down the circumstances in which a tender can be rejected. Referring to the said Clause, he has argued that non- submission of existing commitment could not be a ground for rejecting the petitioner’s technical bid. He has further argued that it is true that the petitioner had mentioned ‘NIL’ against the existing commitment. But the same was unintentional and it was a mistake and such mistake was curable. He has also argued that after the lacuna was detected in the bid, the petitioner had furnished the documents and had therefore compiled with the requirements and so his bid should be accepted and work order issued in its favour. 10. Counter affidavits have been filed on behalf of the respective opposite parties No. 1 to 4 in all the writ petitions and rejoinder affidavit by the petitioner. Opposite Party No 5 has filed counter affidavit in WP ( C) No. 2142 of 2023 . . 11. Learned counsel representing the State and opposite party No.5 have argued that the petitioner had deliberately suppressed the material information as regards its existing commitment which is one of the considerations for an effective evaluation of a technical bid. They have submitted that therefore, there is no illegality in rejecting the Page 6 of 9 petitioner’s technical bid, which had initially been found to be responsive. 12. It is an admitted fact that (after having considered the pleadings on record and the submissions advanced, we noticed that) in terms of the DTCN, the bidders were required to disclose their existing commitments which information the petitioner had admittedly withheld by marking ‘NIL’ in the relevant column. It was only after certain complaints were received and examined that the authorities could know about the petitioner’s existing commitment. The petitioner has subsequently submitted documents regarding its existing works . 13. It is the specific case of the State-opposite parties that as per the provisions laid down in Clause-4.6 of the DTCN, only those bidders meet the eligibility criteria if their available bid capacity is more than total bid value. The “value of the existing commitment and ongoing works to be completed during next 11 months” is an important component for determining as to whether the bidders meet the eligibility criteria or not in terms of Clause-4.6 of the DTCN. 14. Clause 26.2 of the DTCN is extracted hereunder :- “26.2 (i) A tender shall be rejected if; a) Price Bid is enclosed with the technical bid. b) Proof for payment of Cost of tender document through on-line payment is not enclosed. c) Bid Security Declaration on EMD (Schedule-J) as per DTCN is not enclosed. Page 7 of 9 d) Proof of eligibility and qualifications i.e. annual turn-over as well as experience certificate in execution of works similar nature or Civil Engg. Works are not uploaded (ii) In case if the bidder has not submitted following document with the bid due to any reason, clarification may be sought and queries may be issued to the bidders for submission of the same with a stipulated perid, failing which their offer shall be liable for rejection. e) Proof of eligibility and qualifications is not enclosed. f) There are any criminal cases pending. g) PAN is not enclosed. h) Affidavit is not enclosed. i) Power of Attorney is not enclosed. j) Record of litigation and arbitration is not enclosed. k) Other documents as required as per DTCN not enclosed. l) GST Registration Certificate not enclosed.” 15. In Clause-26.2, (ii) the list of documents which was submitted earlier and subsequently have been given, which includes proof of eligibility and qualification. But in the present case, the petitioner had given incorrect information and mentioned ‘NIL’ in the relevant column and so the question of providing proof of eligibility subsequently does not arise. The petitioner’s contention that the non- submission of the documents/information regarding value of existing commitments is a curable mistake is therefore not acceptable to us. 16. We do not find any illegality in rejection of the petitioner’s technical bid after the petitioner had been declared as L1 as it was discovered subsequently that the petitioner had existing work Page 8 of 9 commitment but had given wrong information in the bid document by mentioning “ Nil”. 16. Mr. Das, learned counsel appearing on behalf of the petitioner has submitted that the petitioner had also lodged complaint against some other bidders. 17. We are not making any comment in the present proceeding as regards the allegation of the petitioner against other bidders as the work awarded to the successful bidder is not under challenge. 18. As we are of the view that there is no illegality in rejection of the petitioner’s technical bid, we do not find any merit in the writ petitions, which are accordingly dismissed. Chief Justice (Chakradhari Sharan Singh) Judge (Savitri Ratho) Bichi /PA. Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Jan-2025 18:00:41 Page 9 of 9