The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5955 of 2024 1. Jay Prakash Sharma, aged about 27 years, Son of Saroj Kumar Sharma, At/P.O./P.S.-Kalampur, Dist.- Kalahandi. -Versus- …Petitioner 1. State of Odisha, represented through the Principal Secretary, Rural Works Department Govt. of Odisha, At-Secretariat, Bhubaneswar, Dist: Khurda. 2. Chief Engineer, (Roads), Rural Works Govt. of Odisha, Bhubaneswar, Dist- Khurda. 3. Chief Construction Engineer, Rural Works Circle, Bhawanipatna, At/P.O.-Bhawanipatna, Dist- Kalahandi. 4. Bijay Kumar Behera, At-Kasakendu, P.O- Risgaon, P.S- Sadar, Via- Bhawanipatna, Dist-Kalahandi. 5.
Legal Reasoning
In our considered opinion, this writ petition is without any merit and deserves to be dismissed. 11.
Arguments
Sri Malay Kumar Mund, At-Hill Town, P.O.-Bhawanipatna, Dist-Kalahandi. 6. M/s. RBS Construction, represented through its Proprietor Ranjan Kumar Sahoo, DIET Colony, At/P.O.-Bhawanipatna, Dist- Kalahandi. …Opposite Parties W.P.(C) No.5955 of 2024 Page 1 of 7 Advocates appeared in the case: For the Petitioner : For Opposite Parties Nos.1 to 3 : For Opposite Party No.5 : Mr. S.K. Dalai, Advocate Mr. Debashis Tripathy, Addl. Govt. Advocate Mr. A.N. Pattanayak, Advocate CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 15.01.2025 Chakradhari Sharan Singh, CJ. 1. The petitioner is a registered Contractor under the PWD Contractors Registration Rules, 1967. A tender call notice dated 30.01.2024 was issued by the Chief Construction Division, Rural Works Circle, Bhawanipatna inviting percentage tender for road and bridge work including five years post construction and maintenance under MMSY-TRIP schemes for the year 2023-24 through e- procurement in respect of two items including the work in question i.e. “Construction of Thuamul to Adiguna PWD Road via Kantabanji Road”. The petitioner had participated in the said tender process and was declared qualified in technical evaluation along with three other W.P.(C) No.5955 of 2024 Page 2 of 7 bidders. The financial bid evaluation was conducted on 26.02.2024 and since he has quoted 11.70% less price than the estimated cost in comparison to other bidders i.e. 9.99% and 4.99%, the petitioner was declared the lowest bidder. 2. It is the petitioner’s case that when the petitioner was expecting issuance of letter of acceptance (LoA), without any information to the petitioner, a further technical evaluation was made whereafter the petitioner was declared non-responsive relying upon a letter dated 09.03.2024 of the Chief Engineer (Roads), RW, Odisha, Bhubaneswar. It is the petitioner’s case that after opening of the financial bid and declaring the petitioner L-1, it was impermissible for the opposite parties to carry out a second technical bid evaluation. 3. This is the background in which the present writ petition has been filed putting to challenge the second technical evaluation dated 09.03.2024 whereby the petitioner has been disqualified. 4. A counter affidavit has been filed on behalf of the Chief Construction Engineer, Rural Works Circle, Bhawanipatna (opposite party No.3). It has been stated in the counter affidavit that it was clearly mentioned in the instructions to the tenderers that the tenderers W.P.(C) No.5955 of 2024 Page 3 of 7 must give a statement showing the value of existing commitment and ongoing works as well as stipulated period of completion remaining for each of the works which should be countersigned by the Engineer-in- Charge not below the rank of Superintending Engineer. It was mentioned in the DTCN under the heading Invitation of Tenders, Clause-1.2 that only those tenderers who are willing to accept the terms and conditions of the detailed tender call notice need to submit the tender. Since the petitioner did not uploaded complete data relating to work in hand, the technical bid of the petitioner was declared disqualified by the Tender Grievance Committee Meeting held on 09.03.2024, for suppressing the data about the work in hand, which is mandatory for evaluation of bid capacity. The action was taken only after the grievance petitions were filed before the tendering authorities alleging that the petitioner had suppressed the existing work in hand which affects the evaluation of the bid capacity under Clause 2.1 (8) of the instructions to the bidders. It has been stated that opposite party No.2 had requested opposite party No.3 to submit the information regarding work in hand of the petitioner as alleged by two other contractors. Opposite party No.3 submitted a letter of the Superintending Engineer, Kalahandi (R&B) Division dated 07.03.2024 W.P.(C) No.5955 of 2024 Page 4 of 7 to the effect that the petitioner had entered agreement to execute the work on 12.01.2024 for the agreement value of Rs. 565.98 lakhs. Accordingly, the bid documents of all the participating bidders were placed before the Tender Committee Meeting chaired by the Engineer- in-Chief. The Committee unanimously decided to disqualify the technical bid of the petitioner on the ground of suppression of data relating to work in hand. It has also been stated in the counter affidavit that after declaring the petitioner disqualified, a transparent lottery was held between L-2 bidders and finally one Malay Kumar Mund has been selected as the lowest bidder with his bid amount 9.99% less than the estimated cost. 5. Mr. S.K. Dalai, learned counsel appearing on behalf of the petitioner has vehemently argued that once the petitioner’s technical bid was found responsive, it was impermissible for the opposite parties to have held second technical evaluation. He has also submitted that the action of the opposite parties in holding second technical evaluation after opening the petitioner’s financial bid is wholly arbitrary and illegal. He thirdly submits that the impugned action is violative of principles of natural justice. W.P.(C) No.5955 of 2024 Page 5 of 7 6. Learned counsel appearing on behalf of the opposite parties has submitted that there being admitted suppression of fact by the petitioner regarding ongoing work in hand of the petitioner at the time of submission of bid, the impugned action disqualifying the petitioner on the ground of his technical bid being non-responsive suffers from no illegality. 7. After having heard learned counsel for the parties and perused the rival pleadings on record, it is apparent that the bidders were required under Clause-8 of the tender call notice to furnish the information on work in hand in complete shape as per enclosed proforma (Proforma-II). The said Clause further stipulated that if a bidder failed to submit such information, his tender shall be liable for rejection. Clause-14 of the tender call notice also provided that the authority reserved the right to reject any or all the tenders without assigning any reason thereof. 8. The fact remains that the petitioner had the work in hand inasmuch as he had entered into an agreement on 12.01.2024 for agreement value of Rs.565.98 lakhs. Such being an admitted fact, we W.P.(C) No.5955 of 2024 Page 6 of 7 do not find any arbitrariness or illegality in the decision of the opposite parties in rejecting the petitioner’s bid. 9. No case of violation of principles of natural justice is made out in view of the admitted facts and circumstances. 10.
Decision
The writ petition is dismissed accordingly. (Chakradhari Sharan Singh) Chief Justice Savitri Ratho, J. I agree. (Savitri Ratho) Judge S.K. Guin/PA Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Jan-2025 15:09:52 W.P.(C) No.5955 of 2024 Page 7 of 7