The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 14-Feb-2025 13:08:56 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 32230 OF 2024 Biswojit Malla …. Mr. Prabodha Chandra Nayak, Advocate Petitioner State of Odisha and others …. Opp. Parties -versus- Mr. Swayambhu Mishra, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA JUSTICE SANJAY KUMAR MISHRA Order No.
Decision
ORDER 12.02.2025 01. 1. This matter is taken up through hybrid mode. 2. The Petitioner, in this Writ Petition, seeks to assail the decision of the Tender Inviting Authority and Additional Chief Engineer, Central Irrigation Circle, Bhubaneswar- Opposite Party No.2 in rejecting the technical bid of the Petitioner for the work "Construction of spur and Drainage Channel of Parimala sluice on KSDR embankment at RD 62.20 km.” 3. Mr. Nayak, learned counsel for the Petitioner submits that pursuant to the Detailed Tender Call Notice (Annexure-6) (DTCN), the Petitioner submitted his bid. Petitioner being a graduate Engineer also submitted an affidavit at Annexure-7 along with the bid documents in terms of Clause- 7(a)iv of DTCN, which provides as under: “7. (a) Providing facilities to the Engineer contractor (i) As per works Department No.FR-11/2001/10003/00 Bhubaneswar dtd 24.5.01 5% price preference allowed to Page 1 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 14-Feb-2025 13:08:56 the Engineer contractor in the tender rates has been withdrawn. (ii) The Engineer contractor shall have to execute the work if awarded to him under his direct supervision and he will not be allowed to execute such work through his Power of Attorney Holder. (iii) Exemption of EMD to the Engineer contractor will be allowed for a maximum of three works in a financial year and the fact to attending a work with exemption of EMD should be entered in the original Registration Certificate of the Engineer Contractor [FD & LAW Deptt. UOR No. 334 WE dt. 5.6.98 & No. 449 L dt. 25.03.2000 respectively. (iv) Engineer contractor desirous to avail the exemption of EMD is required to submit an affidavit to the effect that he/she has not yet availed the facility for more than two works during the current financial year. The name of work for which and the authority to whom the tenders have been submitted, must be mentioned in the affidavit, failing which the tender will be rejected.” (emphasis supplied) 4. It is submitted that the Petitioner being a graduate Engineer-Contractor is entitled to exemption of EMD for maximum of three works in a financial year. The said fact of attending a work with exemption of EMD should be entered in the original registration certificate of the Engineer- Contractor in terms of FD & LAW Deptt. UOR No. 334 WE dt. 5.6.98 & No. 449 L dt. 25.03.2000. The Petitioner has not availed any exemption of EMD during the current financial year as would be clear from the registration certificate of the Petitioner under Annexure-5. The Petitioner also stated in the affidavit under Annexure-7 that he has not availed exemption of EMD for more than three works during the current financial year of 2024-25. In spite of the same, the technical bid of the Petitioner was rejected stating that “……........you have been(sic) declared as non-responsive in the technical bid evaluation for the above noted work as per clause 7 (a) (iv) of Page 2 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 14-Feb-2025 13:08:56 the DTCN”. It is his submission that when the Petitioner has not availed a single exemption of EMD during the current financial year, he should have been granted the exemption and his technical bid should not have been declared as non- responsive in terms of clause 7(a)iv of DTCN. He also places reliance upon the case of Shri Satyabrata Pattanaik Vs. State of Odisha and others (W.P.(C) No.20921 of 2010 decided on 27th January, 2011), wherein, it is held as under : “As regards such endorsement, it is indicated in the counter affidavit that an Engineer-Contractor can very well get endorsement tendering authority from regarding non-award of work after the tender in which he participated is finalized. After such an endorsement, he may further participate availing the benefit of non- payment of EMD upto three tenders per financial year as per the prevailing Rules of the Government. the It is stated by learned counsel for the petitioner that this practice has never been adhered to by the tendering authorities. So we make it clear that an Engineer-Contractor shall be allowed to participate in the tender by availing the benefit of Annexure-3 so long as he had not been availed the benefit of award of three works in one financial year.” (emphasis supplied) 5. Mr. Nayak, learned counsel, therefore, submits that the rejection of technical bid of the Petitioner for alleged non- compliance of Clause 7(a)iv of DTCN is not justified and is liable to be quashed. 6. Upon hearing learned counsel for the Petitioner and on perusal of the affidavit at Annexure 7submitted in terms of Clause-7(a)iv of DTCN reveals that in para-3 of the the said affidavit, the Petitioner has stated as under: “3. That, I have not availed the exemption of EMD for more than three works during the current calendar year 2024-2025.” Page 3 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 14-Feb-2025 13:08:56 But Clause-7(a)iv of DTCN clearly stipulates that the Engineer-Contractor, desirous to avail the exemption of EMD, is required to submit an affidavit to the effect that, he/she has not availed the facility for more than two works during the current financial year. Thus, it appears that the affidavit filed by the Petitioner along with DTCN as under Annexure-7 is not in consonance with Clause-7(a)iv of the DTCN. Further, the Petitioner has not challenged Clause-7(a)iv of DTCN in this Writ Petition. 7. In terms of the direction issued in the case of Satyabrata Pattanaik (supra), a circular was issued by the Works Department on 16th June, 2011 clarifying that exemption of Earnest Money Deposit (EMD) to the Engineer- Contractor will be allowed for a maximum of three works in a financial year and the fact of awarding a work with exemption of EMD should be entered in the original registration certificate of the Engineer-Contractor. In terms of such circular, Clauses- 7(a)iii and 7(a)iv have been incorporated to ascertain that the Petitioner has not availed exemption of EMD for a maximum of three works in the current financial year. 8. Mr. Nayak, learned counsel for the Petitioner, however, argues that Clause 7(a)iv should be read along with clause 7(a)iii of the DTCN which clarifies that an Engineer-Contractor is entitled to exemption of EMD for a maximum three works in a financial year and availing any such facility in a financial year should be entered in the original registration certificate of the Engineer-Contractor. Thus, the affidavit under Annexure-7 filed along with tender document should have been interpreted Page 4 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 14-Feb-2025 13:08:56 accordingly. He further submits that the Tender Evaluation Committee should have scrutinized the attested copy of the registration certificate of the Petitioner and interpreted the declaration made in the affidavit accordingly. 9. The submission made by Mr. Nayak learned counsel for the Petitioner cannot be accepted, as there is no averment in the Writ Petition to the effect that he had filed an attested copy of the registration certificate as an Engineer-Contractor along with the tender document. Further, the specific requirement stipulated under Clause-7(a)iv of the DTCN is that the Petitioner has to file an affidavit stating that he has not availed the facility of exemption of EMD for more than two works during current financial year, so that a third such exemption can be given to the Petitioner. The Petitioner apparently has not complied with Clause-7(a)iv of DTCN and submitted a defective affidavit under Annexure-7. Thus, the Tender Evaluation Committee/ Tender Inviting Authority committed no error in rejecting the technical bid of the Petitioner declaring it to be non-responsive. Thus, this Court does not find any merit in the Writ Petition. 10. Accordingly, the Writ Petition being devoid of any merit stands dismissed. (K.R. Mohapatra) Judge (S.K. Mishra) Judge Page 5 of 5 s.s.satapathy/Ranjeeta