The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20062 of 2024 Sanjay Kumar Agrawal …. Petitioner Mr. Saswat Kumar Acharya, Advocate -versus- WAPCOS Limited, Bhubaneswar …. Opposite Party CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO Order No. 02.
Decision
ORDER 10.09.2024 This matter is taken up through Hybrid mode. 2. The petitioner claims that it holds a valid contractor‟s license and is registered as a P.W.D. Contractor under P.W.D. Contractor Registration Rules, 1967. The opposite party-WAPCOS is a limited company and a public sector undertaking, regulated, controlled and managed by the Government of India, having its project office at Bhubaneswar, Odisha. 3. The opposite party has floated a tender vide notice No.WAP/SED(IP)/SSEPD/IIC/2024/21 dated 22.07.2024 for the work “Construction of Integrated Infrastructure Complex (IIC) in Bolangir District of the State of Odisha”. The said tender prescribes a mandatory additional qualification as follows:- “Additional qualifying criteria (Mandatory); The agency should have completed Earth work as a prime contractor of value amounting 10 cr or above in a single project, during last 5 Years ending initial stipulated last date of submission of tender as per NIT. Page 1 of 5 building Similar work refers to Construction of Residential/non- residential framed Structure/Infrastructure Development project for any Government/PSU/ Central Department.” Government/ having State RCC 4. The said additional qualifying criteria, which is over and above the general qualifying criteria, is under challenge in the present writ application filed under Article 226 of the Constitution of India. 5. It is the petitioner‟s case that the bidder should have completed „Earth Work as a prime contractor of value amounting to Rs.10 Crore or above in a single project during the last five years‟, apart from the general qualifying criteria that the bidder should have executed similar work, is unreasonable and amounts to exclusion of such contractors who/which fulfill the general qualifying criteria. 6. Mr. Saswat Kumar Acharya, learned counsel appearing on behalf of the petitioner has submitted, with reference to the abstract of civil work as provided in the tender notice, that the value of the Earth Work to be executed as per the tender notice is estimated to the tune of Rs.1.5 Crore, whereas the additional qualifying criteria arbitrarily prescribes that the bidder should have successfully completed minimum Earth Work of Rs.10 Crore. He has argued that under the Central Vigilance Commission (CVC for short) guidelines issued vide memorandum dated 17.12.2002, the CVC has prescribed that in addition to the similar work criteria, the additional criteria can be prescribed according to the requirement of the project concerning satisfactory performance of works, personnel, establishment, plant, equipment, etc. Referring to the said guidelines, he has submitted that the criteria prescribing minimum execution of Earth Work to the tune Page 2 of 5 of Rs.10 Crore cannot be said to be justified from any angle. He accordingly submits that Clause-6 of the tender notice to the extent it lays down additional qualifying criteria deserves to be struck down being violative of Articles 14, 19 and 21 of the Constitution of India. 7. Paragraph-5 of the aforesaid office memorandum dated 17.12.2002 issued by the CVC states that while fixing the eligibility criteria, following points must be kept in view for Civil/Electrical Works.:- “5. xxx xxx xxx A) For Civil/Electrical Works i) Average Annual financial turnover during the last 3 years, ending 31st March of the previous financial year should be at least 30% of the estimated cost. ii) Experience of having successfully completed similar works during last 7 years ending last day of month previous to the one in which applications are invited should be either of the following. Three similar completed works costing not less than the amount equal to 40% of the estimated cost. or Two similar completed works costing not less than the amount equal to 50% of the estimated cost. or One similar completed works costing not less than the amount equal to 80% of the estimated cost. iii) Definition of “similar work” should be clearly defined. In addition to above, the criteria regarding satisfactory performance of works, personnel, establishment, plant, equipment etc. may be incorporated according to the requirement of the project. (Emphasis supplied) Page 3 of 5 7.1. Paragraph-4 of the said memorandum requires that pre- qualification condition should be exhaustive, yet specific. 8. Paragraph-5 as noted above requires that the definition of similar work should be clearly defined. Sub-Para 3 of Paragraph-5 permits an employer to incorporate additional requirements according to the requirement of the project. 9. In my opinion, in exercise of power of judicial review under Article 226 of the Constitution of India, the Court should not enter into the dispute as to whether the additional qualifying criteria laid down by the opposite party is according to the requirement of the project, keeping in mind the nature of the work i.e. Construction of Integrated Infrastructure Complex. 10. It has been held repeatedly by the Supreme Court that the superior Courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. In Tata Cellular v. Union of India reported in (1994) 6 SCC 651, the Supreme Court has held that the Courts do not usually have the necessary expertise to correct technical decisions in contractual matters and that the employer must have play in the joints i.e. necessary freedom to take administrative decisions within certain boundaries. 11. We do not find any manifest illegality or unreasonableness in putting the additional qualifying criteria to the extent the same can be said to be violative of Article 14 of the Constitution. 12. Applying the principle laid down in the case of Tata Cellular (supra), we are not inclined to accept the challenge to Clause-6 of the tender notice to the extent it lays down additional qualifying criteria. Page 4 of 5 13. We do not find any merit in this application, which is accordingly dismissed. Chief Justice (Chakradhari Sharan Singh) Judge (Savitri Ratho) M. Panda Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Sep-2024 12:45:47 Page 5 of 5