Debjyoti Dutta … v. ….. Opposite Parties Mr. P.R. Barik, Advocate (O.Ps. 2 and 3 & Mr. P.C
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 3586 of 2023 Debjyoti Dutta ….. Petitioner Mr. S.K. Das, Advocate BSNL, New Delhi Vs. ….. Opposite Parties Mr. P.R. Barik, Advocate (O.Ps. 2 and 3 & Mr. P.C. Nayak, Advocate (O.Ps 4 and 5) CORAM: DR. JUSTICE B.R. SARANGI MR. JUSTICE M.S.SAHOO
Decision
ORDER 16.02.2023 Order No. 02. This matter is taken up through hybrid mode. 2. Heard Mr. S.K. Das, learned counsel for the petitioner, Mr. P.R. Barik, learned counsel for opposite parties 2 and 3 and Mr. P.C. Nayak, learned counsel for opposite parties 4 and 5. 3. The petitioner has filed this writ petition seeking to quash the order dated 17.01.2023 under Annexure-5 and to direct the opposite parties 1 to 3 to accept the technical bid of the petitioner and allow him to participate in the financial bid for the work “Laying PLB pipe/Duct and Associated works by Open Trench Method/Trenchless Technology, Optical Fiber Cable Pulling/Blowing and slicing works etc., and drawing of Cable on Overhead for 4G saturation project in R.K. Nagar Area of Angul District under Dhenkanal SSA.” 4. Mr. S.K. Das, learned counsel for the petitioner contended that the order of rejection of the bid of the petitioner is outcome of non-application of mind and as such, the petitioner having been Page 1 of 5 exempted from depositing the Earnest Money irrespective of value of monetary Limit as per the Government Purchase Enlistment Certificate issued by the competent authority, the petitioner’s bid should not have been rejected on the ground of non-submission of such document. Rather he would have been allowed to participate in the bid itself. More so, the exemption certificate has been produced by the petitioner through online mode and, as such, without opening his e-tender document, the rejection having been made, the same cannot sustain in the eye of law. 5. Mr. P.R. Barik, learned counsel appearing for the opposite parties 2 and 3 states that the e-tender issued by the opposite parties contains two parts, one part is with regard to submission of documents through online mode and the other is through offline mode. Initially the documents which are to be submitted through offline mode were to be opened and thereupon if somebody qualifies through offline basis, then his document submitted through online basis will be opened for technical bid and thereafter for financial bid. In the present case, the petitioner has not submitted the documents through offline basis as has been stipulated in Clause No. 12.1.1 of Section-IV and Clause-5.1 of Section VI. As a consequence thereof his e-tender was not opened and he was declared disqualified and his bid has been rejected. Therefore, the opposite parties 2 and 3 have not committed any illegality or irregularity so as to call for any interference by this Court at this stage. 6. Mr. P.C. Nayak, learned counsel appearing for opposite parties 4 and 5 contended that since the petitioner has not adhered Page 2 of 5 the conditions stipulated in the tender document, his bid has been rejected, which is well justified and, as such in the meantime by following due procedure, right has been accrued in favour of the opposite parties 4 and 5, who have been selected by following due procedure of law. 7. Having heard learned counsel for the parties and after going through the record, for a just and proper adjudication of the case, the relevant clauses, i.e. Clause No. 12.1.1 of Section-IV and Clause 5.1 of Section-VI of the NIT are quoted hereunder:- Section-IV xxx xxx the documents xxx 12.1.1 Documents to be submitted- All in Qualifying Bid-part-A as mentioned in Clause 7 of this section and Financial Bid-Part-B as mentioned in clause 3 of this section are to be uploaded in the e-tender portal including proof of deposit of EMD, Cost of Tender document which may be deposited by way of RTGS/NEFT/Banker Cheque/Bank Guarantee.” Section-VI xxx xxx xxx 5.1. Offline submission The bidder shall submit the following documents offline to SDE (PLG), O/o GMBA, BSNL, Dhenkanal on or before the date & time of submission of bids specified in NIT, in a Sealed Envelope. The envelope shall bear (tender name), the tender number and the words ‘DO NOT OPEN BEFORE’ (due date & time). 1. EMD-Bid Security in Original, i.e. DD/Banker Cheque/Bank Guarantee/ proof of payment if paid through NEFT/RTGS DD/ Bankers cheque against payment of tender fee/ proof of payment paid through NEFT/RTGS. Power of attorney in accordance with clause available in tender. 2. 3. 4. MSE registration certificate if the bidder is Page 3 of 5 claiming concession for Bid cost and Bid security. Pass Phrase to open the tender document, if applicable.” 5. 8. On perusal of the aforementioned clauses, it is made clear that if the bidder has to participate in the e-tender process through online basis, then as per clause 5.1, he has to submit the documents as has been mentioned in Clause 5.1.1 to 5.1.5 therein through offline basis. Clause 5.1.4 clearly indicates that the bidder has to submit MSE registration certificate if the bidder is claiming concession for Bid cost and Bid security, through offline basis. Clause 5.2 deals with online submission of the documents enumerated therein. The petitioner has complied clause 5.2 while submitting his bid on online basis. 9. Thereby, as per Clause 5.1.4 of Part-VI, the petitioner was to furnish MSE registration certificate claiming for concession for bid cost and bid security through offline basis. This is the mandatory requirement and, as such, the same has not been submitted as has been revealed from the reason assigned in the order impugned in Annexure-5, wherein it has been indicated that the bidder has not submitted the required documents in offline mode as per clause No. 12.1.1 of Section-IV and Clause No. 5.1 of Section VI. Therefore, when the petitioner has not submitted the required documents through offline basis, the bid was rejected. Mr. Das, learned counsel for the petitioner contended that he has already submitted such documents through online mode. But that was only to be taken into consideration after the documents furnished through offline mode are considered. If the petitioner Page 4 of 5 has not produced any material for exemption through offline basis, then the question of opening of the bid submitted through online mode does not arise, as has been contemplated in the tender conditions itself. 10. In view of such position, this Court is not inclined to entertain the writ petition since it merits no consideration. 11. The writ petition stands dismissed accordingly. (DR. B.R. SARANGI) JUDGE Arun/ Gagan (M.S. SAHOO) JUDGE Page 5 of 5