Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.19072 of 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. --------------- Kali Prasad Mishra son of Late Purna Chandra Mishra Omkar Nagar, Jeypore Koraput … -VERSUS- 1. State of Odisha represented by Secretary to Government of Odisha Rural Development Department Lok Seva Bhawan, Lok Seva Marg Bhubaneswar, District: Khurda Petitioner 2. 3. The Chief Construction Engineer Rural Works Circle, Sunabeda Koraput Prateek Smit Nayak Srivihar, Srikanthapur Balasore … Opposite Parties Counsel appeared for the parties: For the Petitioner : M/s. Manoj Kumar Mohanty, M.R. Pradhan, Mithilesh Mohanty and Asutosh Mohanty, Advocates for the petitioner W.P.(C) No.19072 of 2022 Page 1 of 33 For the Opposite Parties : Mr. Prabhupada Mohanty, Additional Government Advocate for opposite party Nos.1 & 2; Mr. Santanu Kumar Sarangi, Senior Advocate along with Mr. M.R. Padhi, Advocate for the opposite party No.3 P R E S E N T: THE HONOURABLE DR. JUSTICE B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing: 14.09.2023 :: Date of Judgment: 21.09.2023 MURAHARI SRI RAMAN, J.— THE PRAYER: Questioning the propriety of revocation of results of Technical Bid dated 12.07.2022 and Financial Bid dated 14.07.2022 and legality of publishing result of re- evaluation of Technical Bid on 25.07.2022 vide Annexure-7 and fresh publication of result of Financial Bid on 26.07.2022 pursuant thereto vide Annexure-8, the petitioner invoking extraordinary jurisdiction under Article 226/227 of the Constitution of India has approached this Court for exercise of judicial review with prayer to quash the action of the opposite party No.2- Chief Construction Engineer, Rural Works Circle, Sunabeda, Procurement Officer, and to issue writ of W.P.(C) No.19072 of 2022 Page 2 of 33 mandamus to accept his Financial Bid as declared to be the lowest bid on 14.07.2022. THE FACTS: 2. Shorn off unnecessary details, factual matrix of the case leading to knocking the doors of this Court as transpired from the pleadings of the respective parties is that the Chief Construction Engineer, Rural Works Circle, Sunabeda in the District of Koraput, the Procurement Officer, (opposite party No.2) issued e-Procurement Notice No.5284, dated 25.11.2021, bearing Bid Identification No.CCERWCSBD-Online-17/2021-22, for construction of road and bridge works, where the petitioner, Special Class Contractor, participated with respect to “Construction and Maintenance of Guneipada-Gudihanjar-Kitchabeda-Jallaput Road under MMSY in the district of Koraput” as enumerated at serial No.23 of Annexure thereto along with other participants including the opposite party No.3-Prateek Smit Nayak. On the objection raised against the opposite party No.3, who is alleged to have submitted forged documents with regard to “experience”, the Tender Grievance Redressal Committee (“GRC”, for short) took a decision to cancel the tender with regard to aforesaid work on the ground “the verification of authenticity of almost all the documents as per the allegations made by the bidders are beyond the scope of the mechanism”. W.P.(C) No.19072 of 2022 Page 3 of 33 2.1. The opposite party No.2-Procurement Officer, therefore, issued another e-Procurement Notice for Road and Bridge Works bearing No.812, dated 02.03.2022 with Bid Identification No.CCERWCSBD-Online-34/2021-22, mentioning therein the availability of tender online from 07.03.2022 (at 11.00 AM) up to 5.30 PM on 21.03.2022 with time schedule specifying last date of submission up to 2.00 PM on 17.03.2022. Further information contained therein is that Technical Bid would be opened at 11.00 AM on 22.03.2022; however, for opening of Financial Bid it is specified that “to be intimated separately”. 2.2. Though Technical Bid was stated to be opened on 17.03.2022, the same was opened on 12.07.2022. Out of
Legal Reasoning
the six participants, one Sri Rajat Kumar Padhi and the present Petitioner were declared as “qualified”, while four others, namely, Sri Prateek Smit Nayak-opposite party No.3, Sri Pramod Kumar Swain, Sri Rabindra Nayak and Sri Pradeep Kumar Padhi were stated to be “disqualified” in the Technical Bid vide Annexure-5. The reason for disqualification of the opposite party No.3 is on account of “misleading or false representation in the forms, statement, affidavits and attachments submitted in proof of the qualification requirements” as per Clause 2.1.8(i) of the General Instructions to Tenderers (in W.P.(C) No.19072 of 2022 Page 4 of 33 short, “GIT”) which forms part of Detailed Tender Call Notice (“DTCN”, for brevity). 2.3. On opening of the Financial Bid on 14.07.2022, the bid of the petitioner was found to be the lowest one. 2.4. Even though such was the position, the GRC on 25.07.2022 pursuant to decision taken in its Meeting held on 22.07.2022 revoked the Technical Bid declared on 12.07.2022 and accepted the Technical Bids of the Petitioner, Sri Prateek Smit Nayak-opposite party No.3 and Sri Rajat Kumar Padhi, but rejected the Technical Bids of Sri Pradeep Kumar Padhi, Sri Promod Kumar Swain and Sri Rabindra Nayak. On the next day, i.e., 26.07.2022, the Financial Bids being reopened, the Financial Bid of Sri Prateek Smit Nayak was declared to be the lowest one. 2.5. Challenging the said action of reconsideration and re- evaluation of the Technical Bid on 25.07.222 and the reopening of the Financial Bid on 26.07.2022, the petitioner laid challenge before this Court by way of filing the present writ petition. RIVAL CONTENTIONS: 3. Upon notice, the opposite party Nos.1 and 2 filed Counter-Affidavit on 03.11.2022, justifying the reconsideration of the Technical Bid as well as the W.P.(C) No.19072 of 2022 Page 5 of 33 Financial Bid. It is stated that the opposite party No.3 submitted his grievance petition via e-mail of the opposite party No.2 at around 10.22 PM on 13.07.2022 for reconsideration of his bid documents which triggered the GRC to convene meeting on 22.07.2022 to re- evaluate the Technical Bid. Such a grievance being lodged by the opposite party No.3 within 3 days from the date of declaration of Technical Bid Evaluation result and before the date of opening of the Financial Bid, there was scope for reconsideration in view of Clause 7.6.6 of the DTCN read with 2.3.1 of the GIT. The GRC unanimously decided to qualify the bid of the opposite party No.3 on consideration of his representation and thereby revoked the results of the Technical Bid declared on 12.07.2022 and the Financial Bid notified on 14.07.2022. 3.1. It is asserted by the opposite party Nos.1 and 2 that in the Bid Evaluation Committee Meeting held on 05.07.2022, though the Technical Bid of the opposite party No.3 was “disqualified” on the ground that “there was mismatch of certain figures of gross receipts for the construction of work during the financial years 2017-18 to 2021”, it was clarified by way of grievance petition dated 13.07.2022 submitted by the opposite party No.3. Though the Financial Bids of the Petitioner and Sri Rajat Kumar Padhi were opened on 14.07.2022, the bid of W.P.(C) No.19072 of 2022 Page 6 of 33 opposite party No.3 was re-evaluated in the Meeting of GRC held on 22.07.2022 on consideration of his representation dated 13.07.2022 and, accordingly, the Financial Bid was opened on 26.07.2022. Comparing the Financial Bids of the three participants, viz., the Petitioner, the Opposite Party No.3 and Sri Rajat Kumar Padhi, the Financial Bid of the opposite party No.3 having been found to be the lowest one, the same was accepted. 3.2. It is admitted by the opposite party Nos.1 and 2 in the Counter-Affidavit that opening of the Financial Bid on 14.07.2022 was wrong decision, yet in view of terms of Clause 2.3.1 of the GIT which speaks that “no allegation from any of the participants will be entertained after three days, i.e., from the date of declaration of Technical Bid evaluation of result or that date of opening of Financial Bid whichever is earlier”, no infirmity can be attributed in reconsidering the Technical Bid of the opposite party No.3 on receipt of grievance petition dated 13.07.2022. The opposite party No.3 filed his representation on 13.07.2022, i.e., the day following declaration of result of the Technical Bid. So it is affirmed by these parties that there is no illegality or irregularity in this process. The revocation of results of the Technical Bid declared on 12.07.2022 and the W.P.(C) No.19072 of 2022 Page 7 of 33 Financial Bid notified on 14.07.2022 warrants no intervention. 3.3. Refuting the averments and allegations of the Petitioner, the opposite party No.3 filed Counter-Affidavit on 08.02.2023, affirmed that Clause 7.6.6 under the heading “Evaluation of Bids” which forms part of DTCN allows an option to the Procurement Officer for reconsidering the rejected bids with the approval of the concerned Engineer-in-Chief/Head of the Department. Therefore, since 2.3.1 of the GIT permits participants to submit grievance before opening of the Financial Bid or within three days from the date of declaration of Technical Bid evaluation of result such reconsideration by the opposite party No.2 cannot be said to have suffered any infirmity. It has been further submitted that the Financial Bid of the opposite party No.3 being the lowest one, there was no escape for the opposite party No.2 but to revoke the results of the Technical Bid declared on 12.07.2022 and the Financial Bid published on 14.07.2022. It has further been submitted by this opposite party-Sri Prateek Smit Nayak that “the tender was cancelled on the basis of clarification given by M/s. R.S. Industries was accepted by the Committee to the effect that he has not issued any letter contradicting certificates/documents issued by him rather M/s. R.S. Industries accepted that his transaction is genuine with W.P.(C) No.19072 of 2022 Page 8 of 33 this opposite party”. It is further submitted that “this opposite party’s tender was accepted and having been found most responsive the work in question was allotted in his favour”. 4. Given chance to the petitioner, Rejoinder-Affidavit has come to be filed with strong objection inter alia that “after opening the Financial Bid there is no scope at all to re-evaluate the Technical Bid again by taking into account some new documents which were filed after opening of the Technical Bid”. It is objected to by the petitioner that Clause 7.6.6 of the DTCN gives scope to the Procurement Officer to reconsider the rejected bid “with the approval of concerned Engineer-in-Chief/Head of Department”. Having not obtained prior approval as required under said clause the reconsideration of Technical Bid of the opposite party No.3 becomes non est in the eye of law. It is also stated by the petitioner by way of Rejoinder-Affidavit in the representation dated 13.07.2022 (Annexure-A/2 enclosed to the Counter- Affidavit filed by the opposite party Nos.1 and 2), the opposite party No.3 merely wished to know “the reasons for disqualification in Technical Bid”, nevertheless, said opposite party had never made any request for reconsideration/re-evaluation of the rejected Bid. Taking into account new document dated 22.07.2022 issued by M/s. R.S. Industries which came to exist after Financial W.P.(C) No.19072 of 2022 Page 9 of 33 Bid notified on 14.07.2022 being opened and the Financial Bid of the petitioner being declared as the lowest one, the GRC re-evaluated the Technical Bid in its Meeting held on 22.07.2022, which is impermissible in law. Furthermore, “opposite party No.3 has not executed any road construction work and there is no experience certificate to that effect.” Hence the acceptance of the Technical Bid after opening of Financial Bid on 14.07.2022 cannot be countenanced. ARGUMENTS: 5. This Court heard Sri Manoj Kumar Mohanty, Advocate for the petitioner, Sri Prabhupada Mohanty, Additional Government Advocate for opposite party Nos.1 & 2 and Sri Santanu Kumar Sarangi, Senior Advocate for the opposite party No.3 and being conceded by learned
Decision
counsel, this case is heard and disposed of at the stage of admission. 6. Sri Manoj Kumar Mohanty, learned Advocate for the petitioner urged that the entire tender process being faulty and action of the opposite parties being tainted, the writ petition is bound to be allowed. In the first place document issued by M/s. R.S. Industries generated on 22.07.2022 (copy of such document is at Annexure-R- 3/A furnished by the opposite party No.3 in its Counter- Affidavit) could not have been taken into considered at W.P.(C) No.19072 of 2022 Page 10 of 33 the stage of re-evaluation of Technical Bid on 22.07.2022 as the same never formed part of bid document. Secondly, Certificate issued by the Chartered Accountant could not be treated as evidence of experience and such certificate is mistakenly appreciated to be the evidence of “the financial turnover certificate for Civil Engineering Work”. 6.1. It is further argued by Sri Mohanty that after opening the Financial Bid on 14.07.2022 there was no scope for the Technical Evaluation Committee to consider the representation furnished by the opposite party No.3 via e-mail to the opposite party No.2, even though such representation was stated to have been sent on 13.07.2022. Non-filing of Minutes of Technical Evaluation Committee dated 05.07.2022 with the Counter-Affidavit speaks volumes about the conduct of the opposite parties. It is vehemently contested by Sri Manoj Kumar Mohanty, learned Advocate for the petitioner that in Clause 7.6.6 under the heading “Evaluation of Bids” of DTCN, it is specified that “System provides an option to Procurement Officer Publisher for reconsidering the rejected bid with the approval of concern Engineer-in-Chief/Head of Department”, but said clause does not confer any power on the Engineer- in-Chief to “ratify” on 25.07.2022 “decision of review GRC Meeting held on 22.07.2022”. W.P.(C) No.19072 of 2022 Page 11 of 33 7. In the above premises, no sanctity can be attached to the decision of the opposite party No.2 to declare the Financial Bid of the opposite party No.3 to be the lowest one and thus, the revocation of the Technical Bid dated 12.07.2022 and the Financial Bid dated 14.07.2022 is liable to be quashed by issue of writ of certiorari. DISCUSSIONS AND ANALYSIS: 8. Strong exception has been taken by Sri Manoj Kumar Mohanty, learned Advocate for the petitioner against the action of the Technical Evaluation Committee headed by the opposite party No.2-Chief Construction Engineer, Rural Works along with SE RW Division, Sunabeda; DAO RW Division, Sunabeda; DAO RW Division, Koraput; PA to CCE RW Circle, Sunabeda; and Estimator RW Circle, Sunabeda in entertaining extraneous material which never formed part of the Bid submitted as on the last date of submission, i.e., 17.03.2022 up to 2.00 PM (Annexure-3). Such fact is apparent from the document dated 22.07.2022 vide Annexure-R-3/A enclosed to the Counter-Affidavit dated 08.02.2023 filed before this Court by the opposite party No.3-Prateek Smit Nayak. At paragraph 13 said opposite party No.3 asserted thus: “*** It is humbly submitted that the tender was cancelled on the basis of clarification given by M/s. R.S. Industries was accepted by the Committee to the effect that he ahs W.P.(C) No.19072 of 2022 Page 12 of 33 not issued any letter contradicting certificates/documents issued by him rather M/s. R.S. Industries accepted that his transaction is genuine with this opposite party. Accordingly this opposite party’s tender was accepted and having been found most responsive the work in question was allotted in his favour. ***” 8.1. This Court is taken to have glance at the following Clause contained in the DTCN: “2. General Instructions to Tenderers: 2.1. Eligibility criteria The eligibility criteria for participation in this tender are given below. The tenderer(s) should go through these eligibility criteria before purchasing the tender documents. Tenderer(s) not fulfilling the eligibility criteria and submit the tender, can do so at their own risk, as the tender will summarily be rejected. (1) – (3) *** (4) The intending tenderer(s) should have executed similar nature of work worth 75% of the estimated cost put to tender (as in Col-3 of the Table) during any three financial years taken together of the last preceding five years (starting from 2016-17 to 2020-21 excluding the current financial year 2021-22). In case of Contract spanning for more than one financial year, the break-up of execution of work in each of financial year should be furnished. A certificate to this effect must be enclosed from the officer not below the rank of Executive Engineer as per enclosed Format-I. Submission W.P.(C) No.19072 of 2022 Page 13 of 33 information other the prescribed of Format-I shall not be considered for evaluation. than respect turnover (5) The intending tenderer(s) should have the total financial of Civil in Engineering works of an amount not less than the amount put to tender (as in Col-3 of the Table) during any 3 (three) financial years taken together of the last proceeding five financial years (starting from 2016-17 to 2020- 21 excluding the current financial year). The financial turnover certificate for Civil Engineering works should be submitted from the Chartered Accountant showing clearly the financial turnover financial year-wise. ***” 8.2. Sri Manoj Kumar Mohanty, learned Advocate forcefully argued that the action of GRC smacks arbitrariness. Stemming on the “option” to reconsider as per Clause 7.6.6 of the DTCN, the decision of GRC is erroneous inasmuch as it considered Certificate of Chartered Accountant who certified “turnover during the last five financial years” with respect to the opposite party No.3 as per “his books of account and maintained at his office Srikanthapur, Balasore”. When requirement of Clause 2.1.(5) of GIT is “The financial turnover certificate for Civil Engineering Works should be submitted from the Chartered Accountant showing clearly the financial turnover financial year-wise”, the Certificate of W.P.(C) No.19072 of 2022 Page 14 of 33 Chartered Accountant as available at Annexure-9 enclosed to Rejoinder-Affidavit dated 16.04.2023 filed by the petitioner indicates “Turnover Certificate”. This is not in conformity with the information required to be provided for. The opposite parties neither filed any sur- rejoinder to counter such contention nor advanced any argument in this respect. 8.3. From the fact on record particularly the decision of GRC Meeting held on 22.07.2022 vide Annexure-B/2 enclosed to the Counter-Affidavit of the opposite party Nos.1 and 2, it is revealed that: “*** During evaluation it was noticed that the financial turnover as certified by the Chartered Accountant from the year 2017-18 to 2020-21 was less than the gross amount the Executive Engineers with the received available uploaded work experience certificates. ***” from 8.4. Though in the aforesaid paragraph it has been stated that the Tender Evaluation Committee considered the experience of the opposite party No.3 “as uploaded”, in the very same document (in subsequent paragraph) it has been stated on re-evaluation with reference to Clause 2.1(5) of GIT that “From the uploaded financial turnover certificate of Sri Prateek Smit Nayak the turnover from Civil Engineering Construction Works for three years including indexing of 3 years comes to 291.66x1.61 + 148.16x1.46 + 189.16x1.33 = 938.95 W.P.(C) No.19072 of 2022 Page 15 of 33 lakhs which is more than the estimated cost put to tender of Rs.314.19 lakhs”. There seems no transparency maintained in the decision making process of the GRC for the simple reason that the Certificate of the Chartered Accountant as at Annexure-9 of the Rejoinder-Affidavit indicates “Turnover Certificate” which nowhere spells out “turnover from Civil Engineering Construction Works”. 8.5. Thus, this Court is of the view that the Certificate of Chartered Accountant dated 21.03.2022 is not in accord with Clause 2.1.(5) of the DTCN. Therefore, this Court has no option but to agree with the submission of Sri Manoj Kumar Mohanty, Advocate for the petitioner that while undertaking re-evaluation process of Technical Bid of the opposite party No.3-Prateek Smit Nayak ignored to bear in mind the purport of said clause and the Tender Evaluation Committee should have followed the term of Clause 2.1 of the DTCN to the effect that “Tenderer(s) not fulfilling the eligibility criteria and submit the tender, can do so at their own risk, as the tender will summarily be rejected”. 9. Next contention of Sri Manoj Kumar Mohanty, learned Advocate for the petitioner is that the opposite party No.3-Chief Construction Engineer being head of the Tender Evaluation Committee in the Counter-Affidavit dated 02.11.2022 feigned ignorance about grievance W.P.(C) No.19072 of 2022 Page 16 of 33 petition being sent to him via e-mail by the opposite party No.2 inasmuch as he admitted that such petition was available at his e-mail on 13.07.2022 “at about 10.22 PM”. Further said opposite party No.2 has invoked authority conceded under Clause 7.6.6 of the DTCN to reconsider such grievance petition. At this juncture Sri Mohanty has taken this Court to Clause 2.3.1 of GIT forming part of DTCN which reads thus: “No allegation from any of the participants will be entertained after three days, i.e., from the date of declaration of Technical Bid evaluation of result or the date of opening of the Financial Bid whichever is earlier.” 9.1. It is not in dispute that the Technical Bids of the participants were opened on 12.07.2023 wherein the present petitioner and Sri Rajat Kumar Padhi were found to be “qualified”. From the document at Annexure-6 to the writ petition it is revealed that the Financial Bids of qualified bidders were opened at 1.17 PM on 14.07.2023. It is hard to believe that the grievance petition dated 13.07.2023 furnished to the opposite party No.2 by the opposite party No.3 with respect to Technical Bid opened on 12.07.2022 was not within the knowledge of the Tender Evaluation Committee on 14.07.2023. 9.2. Reading of Clause 7.6.6 of DTCN suggests that “System provides an option to Procurement Officer Publisher for W.P.(C) No.19072 of 2022 Page 17 of 33 reconsidering the rejected bid with the approval of concern(ed) Engineer-in-Chief/Head of Department”. It is significant to note the presence of the word “with” in said clause. 9.3. From the pleading it is gathered that the opposite party Nos.1 and 2 by way of Counter-Affidavit dated 02.11.2022 affirmed as follows: “13. Further Clause 7.6.6 of the DTCN provides that the Procurement Officer can reconsider the rejected bid with the approval of Engineer-in-Chief/Head of the Department. Accordingly on receipt of grievance from the opposite party No.3 before opening of the Financial Bid, the Technical though result of Evaluation was notified, the opposite party No.2 decided to re-evaluate on rejection of Technical Bid of the opposite party No.3. As narrated before the its Tender Grievance Redressal Committee meeting held on 22.07.2022 after thorough examination of the bid documents uploaded by the opposite party No.3 decided to qualify in the Technical Bid. Accordingly the opposite party No.3 intimated to the Chief Engineer, Plan Road, Office of the Engineer-in-Chief, Rural Works, Odisha, Bhubaneswar on 22.07.2022 to get approval from the Engineer-in-Chief/Head of the Department. As per Letter No.22995, dated 25.07.2022 the Engineer-in-Chief granted approval to the decision of Tender Grievance Redressal Committee Meeting held on 22.07.2022. ***” in W.P.(C) No.19072 of 2022 Page 18 of 33 9.4. The text of said Letter NO.22995-Rd-DPR-Sunabeda- 582/2021, dated 25.07.2022 of Engineer-in-Chief, Rural Works, Odisha, Bhubaneswar addressed to the Chief Construction Engineer, Rural Works Circle, Sunabeda vide Annexure-E/2 to the Counter-Affidavit filed by the opposite party Nos.1 and 2 runs as follows: “It is to state that based on your above proposal to ratify the decision taken by the Tender Grievance Redressal Committee Meeting held on 22.07.2022 under your Chairmanship, the decision on Technical Evaluation by the Tender Grievance Redressal Committee is hereby approved. So you are instructed to upload the result the Technical Evaluation on the basis of decision of Committee taken on 22.07.2022 and follow DTCN to expedite the tender process.” 9.5. It is evident from the text of above document that there was no approval of Engineer-in-Chief, Rural Works as required under Clause 7.6.6 of DTCN on 22.07.2022, i.e., the date of reconsideration of Bid of the opposite party No.3-Prateek Smit Nayak. In other words, the word “with” used in Clause 7.6.6 of DTCN would suggest that reconsideration of rejected bid can be undertaken “with the approval of concerned Engineer-in-Chief/Head of Department”. Said clause does not whisper about “ratification” by concerned Engineer-in-Chief/Head of Department. W.P.(C) No.19072 of 2022 Page 19 of 33 9.6. Black’s Law Dictionary, Seventh Edition, page 1268 defines the term ‘ratification’ as confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done. Concise Law Dictionary, by P.G. Osborn, published by Sweet and Maxwell, 1927 explains “ratification” as the act of adopting a contract or other transaction by a person who was not bound by it originally, e.g., because it was entered into by an “unauthorised agent”. Ratification cannot take place where the party who professes to ratify a transaction was not in existence when it took place. 9.7. The Latin maxim “Omnis ratihabitio retrorahitur et mandato priori aequiparatur”, means that every ratification is dragged back and treated as equal to a command or previous authority. In simple terms, it means that “doctrine of ratification” comes into picture if a person has done something on behalf of another person without any authority, knowledge or consent, then if such “other person” ratifies the same, then the same result would come as if the act was done on his own. 9.8. The language of Clause 7.6.6 of the DTCN that reconsideration of “rejected bid with the approval” of concerned Engineer-in-Chief is indicative that the competent authority is required to accord approval for reconsideration of rejected bids. Therefore, the Letter of W.P.(C) No.19072 of 2022 Page 20 of 33 Engineer-in-Chief ratifying the result as a consequence of review of Technical Bid is not in conformity with the terms of Clause 7.6.6 of the DTCN. In the aforesaid perspective under no stretch of imagination can it be construed that there is “principal” and “agent” relationship between “Engineer-in-Chief, Rural Works, Odisha, Bhubaneswar” and “Chief Construction Engineer, Rural Works Circle, Sunabeda”. Thus, it can safely be construed that the DTCN in Clause 7.6.6 does not authorise Engineer-in-Chief to ratify the decision in review taken by the Procurement Officer/GRC to reconsider the rejected bid pertaining to the result of Technical Bid declared on 12.07.2022. 9.9. In Delhi Development Authority Vrs. Durga Chand Kaushish, AIR 1973 SC 2609 it is stated that the meaning of the word ‘with’ is generally gathered from the context and has to be considered in conjunction with words which precede and those which follow it. Further reference to U.P. Avas Evam Vikas Parishad Vrs. Ram Krishna, (2002) 3 SCC 11 makes it clear that the meaning of the word “with” is — “at the same time”, “in the company of”. 9.10. Meaning of the word “with” and its application to the eligibility has been discussed in A.K. Raghumani Singh Vrs. Gopal Chandra Nath, (2000) 4 SCC 30 as follows: W.P.(C) No.19072 of 2022 Page 21 of 33 “6. There is no dispute that as on 1991 Respondent 1/writ petitioner had put in more than 6 years' regular service in the grade. Of that period only a little over 2 years was after he was granted the AMIE Diploma. The controversy hinges on the interpretation of the word “with” used in the eligibility criteria. 7. The word “with” has been defined in the New the Shorter Oxford Dictionary (1993), diversely meaning depending on the context in which it is used. But when it is used to connect two nouns it means: ‘Accompanied by; having as an addition or accompaniment. Frequently used to connect two nouns, in the sense ‘and’ — ‘as well’.’ 8. Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years’ experience as well. Given the plain meaning of the phrase, the Court would not be justified in reading a qualification into the conjunctive word and imply the word “subsequent” after the word “with”.” 9.11. Such being the position as enunciated by the Hon’ble Supreme Court with respect to meaning of the word “with” and its application, there is no iota of doubt but to come to take a view that Clause 7.6.6 of the DTCN extends scope to the Procuring Officer/GRC for “reconsidering the rejected bid” “with” “the approval” of the concerned Engineer-in-Chief/Head of the Department. To clarify further it can be said that W.P.(C) No.19072 of 2022 Page 22 of 33 reconsideration is to be undertaken by the Procuring Officer “in the company of” approval of the Engineer-in- Chief. 9.12. The tenor of Letter dated 25.07.2022 vide Annexure-E/2 enclosed to the Counter-Affidavit of the opposite party Nos.1 and 2 clinch that at the time of reconsideration of rejected Technical Bid of the opposite party No.3 on 22.07.2023, the approval of the Engineer-in-Chief was absent. It is transpired from scrutiny of Letter No.3078, dated 22.07.2022 of the Chief Construction Engineer, Rural Works Circle, Sunabeda addressed to the Chief Engineer, Plan Road, Rural Works that request was made “for consideration of approval” “for uploading the Office Order No.3077, dated 22.07.2022 in e- procurement portal”. This clearly indicates that for reconsideration of rejected bid, no approval was obtained from the competent authority. It is only for the purpose of uploading the result of reconsideration of bid, approval of Engineer-in-Chief was sought for by the Chief Construction Engineer, Rural Works Circle, Sunabeda-the Procurement Officer. 9.13. At the cost of repetition it is felt expedient to say that approval was required for reconsideration of rejected bid, but not “for uploading” the result of review of Technical Bid. Under such circumstance, this Court is of the considered opinion that the Chief Construction W.P.(C) No.19072 of 2022 Page 23 of 33 Engineer, Rural Works Circle, Sunabeda-opposite party No.2 had no authority to reconsider the rejected Technical Bid of the opposite party No.3 in the Meeting held on 22.07.2022 for re-evaluation. Therefore, the revocation of Technical Bid accepted on 12.07.2022 is not in consonance with the requirement of terms of the DTCN. 10. Sri Manoj Kumar Mohanty, learned Advocate for the petitioner also indicated that after Financial Bid is opened on 14.07.2022 at 1.17 PM, by which date the opposite party No.3 had already lodged grievance, i.e., on the previous date, i.e., 13.07.2022 at around 10.22 PM. It is strenuously argued that once Financial Bid is opened and the bid of the petitioner is found to be the lowest one, the reconsideration of rejected Technical Bid of the opposite party No.3 cannot sanctify the illegality/ irregularity perpetrated by the Evaluation Committee. 10.1. In Radhamohan Patra Vrs. State of Odisha, AIR 1992 Ori 221 = 73 (1992) CLT 431 this Court was of the view that: “7. *** The object of calling for tender is giving an opportunity to the rival competitors in the trade to give their offer in respect of the work in question, one not knowing the offer of the other so that the competent authority will take a final decision with regard to the acceptance of any one of them. In this view of the matter, to consider the offer of a tenderer who did not give the offer within the time on the W.P.(C) No.19072 of 2022 Page 24 of 33 ground that the said offer is lower than the rate accepted by the competent authority would obviously frustrate the sanctity and object of the tender call system.” 10.2. As has already been taken cognizance of by this Court supra that a fresh document dated 22.07.2022 issued by M/s. R.S. Industries was entertained by the GRC in its meeting held on 22.07.2022 while reconsidering the rejected bid of the opposite party No.3. This action of the Committee is not only blemish, but also contrary to Clause 3.5.9 under the Heading “Submission of Bid” of the DTCN, which reads as follows: “The bidder will not be able to submit his bid after expiry of the date and time of submission of bid (server time). The date and time of bid submission shall remain unaltered even if the specified date for the submission of bids declared as a holiday for the Officer Inviting the bid.” 10.3. On the specious plea of clarification, entertaining a new document dated 22.07.2022, which is generated after 2.00 PM of 17.03.2022, by the GRC in its meeting dated 22.07.2022 that too after declaration of the Financial Bid of the petitioner on 14.07.2022 to be the lowest one is not acceptable. 10.4. Apt here to quote the following from Durgawati Devi Vrs. Union of India through its Secretary, Ministry, Special Leave Petition (C) No.37479 of 2016 disposed off on 04.10.2019 by the Hon’ble Supreme Court of India: W.P.(C) No.19072 of 2022 Page 25 of 33 “Admittedly, as on the last date for submission of applications in terms of the advertisement referred to above, the petitioner did not own land as required. The petitioner only had an agreement for sale in her favour. It is well-settled that execution of a sale agreement does not transfer ownership/title. Ownership can only be acquired by a registered deed of conveyance. The petitioner was not eligible as on the last date for submission of applications. Counsel appearing on behalf of the petitioner strenuously contended that a deed of conveyance has since been executed and the petitioner is now the owner of the land. However, it is not disputed that as on the relevant date, that is the last date for submission of applications, the petitioner was not the owner of the land. The High Court cannot, and rightly did not, in exercise of power under Article 226 of the Constitution of India, relax the terms and conditions of a tender notice”. 10.5. In Sorath Builders Vrs. Shreejikrupa Buildcon Limited, (2009) 2 SCR 893 it has been observed as follows: “15. Following the aforesaid legal principles laid. down by this Court, we are of the considered opinion that the respondent No. 1 was negligent and was not sincere in submitting his pre-qualification documents within the time schedule laid down despite the fact that he had information that there is a time schedule attached to the notice inviting tenders. Despite being aware of the said stipulation he did not submit the required documents within the stipulated date. Pre- the qualification documents were received by respondent No. 2-University only after time schedule was over. The terms and conditions of the tender as W.P.(C) No.19072 of 2022 Page 26 of 33 held by the Supreme Court are required to be adhered to strictly, and· therefore, the respondent No. 2-University was justified in not opening the respondent No. 1 on tender submitted by 01.12.2008, which was three days. According to us no grievance could also be made by the respondent No. 1 as lapse was due to his own fault. ***” late by 10.6. In Union of India Vrs. Dinesh Engineering Corporation, (2001) 8 SCC 491, it has been explained that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognized by Courts while dealing with public property. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution of India. 10.7. Bearing in mind that the tender process of the Chief Construction Engineer-opposite party No.2 required ensuring transparency in the public procurement, to maximize economy and efficiency in Government procurement, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authority concerned, W.P.(C) No.19072 of 2022 Page 27 of 33 entertainment of new document, which did not form part of Bid submitted by the opposite party No.3, in the garb of reconsideration of the rejected bid, more so after publication of result of Financial Bid on 14.07.2022, called for intervention of this Court to exercise power of judicial review under Article 226/227 of the Constitution of India. 10.8. Ergo, the GRC was required to enforce the conditions of tender rigidly, as it is well-established that the terms and conditions of tender are required to be adhered to strictly. As a consequence, the Technical Bid of the opposite party No.3 could not have been considered taking into account fresh material. Conclusion: 11. Given the meaning of the word “with” as discussed above vis-à-vis option conceded to the Procurement Officer to reconsider the rejected bid “with the approval of concerned Engineer-in-Chief/Head of Department” vide Clause 7.6.6 of the DTCN, it is, hence, unambiguous that it is the exercise of “option” to “reconsider” the rejected bid which is to be accompanied by approval of concerned Engineer-in-Chief/Head of Department, but the approval could not be read as if for the purpose of uploading the result of the reconsideration of bid. In the present case, by Letter bearing No.3078, dated W.P.(C) No.19072 of 2022 Page 28 of 33 22.7.2022, the Chief Construction Engineer made the following request: Rural Works, Engineer-In-Chief, “It is therefore requested for consideration of approval from Odisha, Bhubaneswar for uploading the Office Order No. 3077 Dt 22.07.2022 in e-procurement portal. The decision of Tender Grievance Redressal Committee Meeting held on 22.07.2022 and Office Order No. 3077 Dtd. 22.07.2022 are enclosed herewith for kind information and necessary action.” The text of above letter as also Letter dated 25.07.2022 vide Annexure-E/2 enclosed to the Counter-Affidavit of the opposite party Nos.1 and 2 would go to show that the Procurement Officer had sought for “consideration of approval” “for uploading the Office Order No. 3077, dated 22.07.2022”, i.e., already taken decision on reconsideration of rejected bid, and on the date of said decision, the GRC had no authority to reconsider the bid of the opposite party No.3 on 22.07.2022. In the opinion of this Court the “option” so acceded under Clause 7.6.6 of the DTCN cannot be exercised at whims and caprice of the Procurement Officer. In such view of the matter, the decision taken and result of the reconsideration of rejected bid of the opposite party No.3 cannot withstand judicial scrutiny and thus, the process of reconsideration of rejected bid and the proceeding in the Meeting dated 22.07.2022 cannot be held to be valid. W.P.(C) No.19072 of 2022 Page 29 of 33 12. Law is well-settled that the action of the State and its instrumentality should be fair, legitimate and above board and without any affection or aversion. (See Haji T.M. Hassan Rawther Vrs. Kerala Financial Corporation, AIR 1988 SC 157; E.P. Royappa Vrs. State of Tamil Nadu, AIR 1974 SC 555 and State of Andhra Pradesh, Vrs. Nalla Raja Reddy, AIR 1967 SC 1458). The State is under obligation to act fairly without ill will or malice— in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. Vide ADM, Jabalpur Vrs. Shivakant Shukla, (1976) 2 SCC 521 = AIR 1976 SC 1207; S.R. Venkataraman Vrs. Union of India, (1979) 2 SCC 491 = 1979 SCC (L&S) 216 = AIR 1979 SC 49; State of A.P. Vrs. Goverdhanlal Pitti, (2003) 4 SCC 739 = AIR 2003 SC 1941; BPL Ltd. Vrs. S.P. Gururaja, (2003) W.P.(C) No.19072 of 2022 Page 30 of 33 8 SCC 567; W.B. SEB Vrs. Dilip Kumar Ray, (2007) 14 SCC 568 = (2009) 1 SCC (L&S) 860; State of Rajasthan Vrs. Sharwan Kumar Kumawat, AIR 2023 SC 3586. 13. Evaluating the impact on other bidders, this Court considers potential impact of reconsideration of the Bid of the opposite party No.3-Prateek Smit Nayak in the tendering process. The reconsideration of rejected Bid of the opposite party No.3 in the Meeting held on 22.07.2022, after finalization of Financial Bid on 14.07.2022, though the opposite party No.3 has filed representation before the opposite party No.2 on 13.07.2022 via e-mail, unfairly disadvantaged other bidders which undermined the integrity of the process. This Court takes cognizance of the fact that the opposite party Nos.1 and 2 have admitted that the grievance petition was available in the e-mail of the Chief Construction Officer-opposite party No.2 on 13.07.2022 at around 10.22 PM. whereas record reveals that the Financial Bid was opened on 14.07.2022 and the bid of the petitioner was found and notified to be the lowest one. Therefore, the reconsideration of the Bid of the opposite party No.3 is held to be unlawful. 14. For the discussions made in the foregoing paragraphs and reasons assigned, this Court, in the aforesaid fact situation, is of the view that the tender process in the instant case has not been done adhering to the terms W.P.(C) No.19072 of 2022 Page 31 of 33 and conditions of the Detailed Tender Call Notice. Therefore, the Office Order dated 22.07.2022 of the Chief Construction Engineer, Rural Works Circle, Sunabeda (Annexure-C/2 enclosed to the Counter-Affidavit of the opposite party Nos.1 and 2) is liable to be quashed, and hereby quashed. As a consequence thereof, the approval post-facto by the Engineer-in-Chief is vitiated. 14.1. Resultantly, declaration of the Financial Bid of the opposite party No.3 to be the lowest on 26.07.2022 (Annexure-8) revoking the result of Technical Bid dated 12.07.2022 (Annexure-7) and declaration of Financial Bid dated 14.07.2022 (Annexure-6) pursuant to GRC Meeting held on 22.07.2022 is set aside being non est and untenable. 14.2. This Court, therefore, in consideration of the aforesaid facts and circumstances, is inclined to issue writ directing the opposite party No. 2-Chief Construction Engineer, Rural Works Circle, Sunabeda in the District of Koraput, the Procurement Officer, to accept bid of the petitioner as per the results declared on 12.07.2022 with respect to the Technical Bid and 14.07.2022 as regards the Financial Bid and issue work order in his favour accordingly. W.P.(C) No.19072 of 2022 Page 32 of 33 15. In the result, with the above observation and direction the writ petition is allowed, but in the circumstances there shall be no orders as to costs. DR. B.R. SARANGI, J. I agree. (MURAHARI SRI RAMAN) JUDGE (DR. B.R. SARANGI) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Junior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Sep-2023 15:52:52 Orissa High Court, Cuttack The 21st September, 2023//Laxmikant W.P.(C) No.19072 of 2022 Page 33 of 33