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2006 DIGILAW 2540 (RAJ)

Wagad Construction Company v. State of Rajasthan

2006-08-23

BHAGABATI PRASAD BANERJEE

body2006
Judgment Bhagwati Prasad, J.-The present petition has been filed in relation to an award of a contract. Notice inviting tenders were issued vide Annexure-1. Petitioner, pursuant to the notice inviting tender gave his bid. The case of the petitioner is that he was qualified and his qualifications were adjudged to be sufficient qualification and on 012.2005 a letter was written by the Additional Chief Engineer wherein it was stated that out of the four Firms who have submitted their tenders, three have been found to be eligible, which included the name of the petitioner. The case of the petitioner was that notwithstanding the eligibility he has not heard anything from the respondents regarding award of the contract. 2. Alongwith the petition the petitioner has filed a Certificate Annexure-7 which says that he has undertook a job of a cost of Rs. 298.00 lacs in the year 2003-2004. However, in Paragraph 14 of the petition he has stated that petitioner has experience of executing a work of amount of Rs. 258 lacs and the figure of Rs. 298 lacs has not been correctly arrived at by the Engineer. There was divergent opinion on the part of both the parties about the veracity and correctness of Annexure-7 and the claim of the petitioner. This Court had chosen not be go into this controversy because on behalf of the petitioner at the time of argument this was categorically stated that the petitioner had executed a work for the year 2003-2004 the cost of which was Rs. 258 lacs. Therefore setting aside all the ambiguity and claims of the parties this aspect was not considered to be probed. It was accepted that the petitioner had executed a work of Rs. 258 lacs in the year 2003-2004 3. The claim of the petitioner was for the year 2003-2004. The cost of work was Rs. 258 lacs. It is required to be escalated equivalent to the relevant date. By using the provided escalation formula the cost of work can be calculated for relevant day. For this the petitioner relies on Clause 3.2 contained in Post Qualification Document, Annexure-R/8. The case of the petitioner was that if for the year 2003-2004 the work of the petitioner is taken to be Rs. 258 lacs then for the next year it should be treated to be Rs. 298.00 lacs and this brings the petitioner within the zone of consideration. The case of the petitioner was that if for the year 2003-2004 the work of the petitioner is taken to be Rs. 258 lacs then for the next year it should be treated to be Rs. 298.00 lacs and this brings the petitioner within the zone of consideration. The claim of the petitioner on this count is based on the interpretation of Clause 3.2 quoted herein below for ready reference:- “3.2 General Experience: (a) Average annual turnover over the last 5 financial years should not be less than 30% of “G” Schedule five years of Rs. 147. 50 lacs. Total financial turnover during last 5 years on 2005 price level shall be worked out as under:- Year Annual turnover (In Lacs) Annual turnover at 2004 price level (In Lacs) 2000-2001 A416.74 1.4A Rs. 583.43 2001-2002 B498.381.3B Rs. 647.89 2002-2003 C577.65 1.2C Rs. 693-18 2003-2004 D608.94 1.1D Rs. 669. 83 2004-2005 E628.961.0E Rs. 628.96 Total: 2930.67 (b) The applicant shall have successful experience as prime contractor in completing at least one contract of nature and complexity comparable to proposed contract within the last five year of value not less than 60% of G-Schedule amount i.e., 295.05 Lacs. E/W excavation 60% of average annual quantities based on G-Schedule 14960 Cum Embankment plain concrete do 991 cum RCC do 18106 cum Stone masonry do 3632 cum A detailed note giving details of such contracts executed in past alongwith the certificates from the employer or Engineer-in-Charge not below the rank of Executive Engineer for having completed such works satisfactorily in time, should be appended.” 4. The petitioner further emphasises that Clause 3.9 provides for the formula to arrive at a value at current price level i.e., at 2004-2005. Clause 3.9 is quoted herein below for ready reference:- “3.9 Assessed available bid capacity Applicant who meets the minimum qualification criteria will be qualified only if their available bid capacity at the expected time of bidding is more than the total estimated cost of the works. Clause 3.9 is quoted herein below for ready reference:- “3.9 Assessed available bid capacity Applicant who meets the minimum qualification criteria will be qualified only if their available bid capacity at the expected time of bidding is more than the total estimated cost of the works. The available bid capacity will be calculated as under:- Assessment available bid capacity = AxNx2-B Where A= maximum value of works executed in any one year during the last five years (updated to the current price level i.e., At 2004 -2005 which will take into account the completed as well as work in progress.) B= Value at current price level i.e., At 2004-2005 of the existing commitments and ongoing works to be completed during the next years and, N= Number of years prescribed for completion of the works for which the bids are invited. The bidder should work out bid capacity in Form No. 11”. 5. In sum and substance the case of the petitioner is that calculation of his one work has to be made fairly and in accordance with Clause 3.2(b) and Clause 3.9 and is brought to relevant price level. If current price level is calculated on the basis of the formula given in these clauses his case would come within the eligible criterion and in this background he is not liable to be kept out of consideration. 6. The respondents have contested the claim of the petitioner and have stated that the petitioner, at the time of consideration was not found to be eligible as he has not executed any one work in the last five years amounting to Rs. 298.00 lacs. The case of the respondents is that even if the best case of the petitioner is taken and calculations are made in the manner petitioner wants then also his work comes out to the level of Rs. 283.855 lacs which is below the level required to be executed. Calculations in this regard made and submitted by the respondents are contained in a Memo submitted to the Court at the time of arguments and it gives out-if for one year escalation work is added to the one given by the petitioner would come to the amount of Rs. 258.05 lacs and its 10% is added to this configuration then ultimately the amount comes to Rs. 283.855 lacs. 258.05 lacs and its 10% is added to this configuration then ultimately the amount comes to Rs. 283.855 lacs. A copy of this has been placed on Sd/ 04.08.2006 (Ram Chandra Kharadi) Asstt Engineer. O.I.C. (ii) 7. Thus, the contention of the respondent is that even if the best case of the petitioner is taken then also his case do not come within the zone of consideration because he has not executed a work in terms of the required criterion and thus he was kept out of consideration. It has further been argued that the Certificate required under Clause 3.2(b) was required to be more comprehensive. Apart from cost it had to show dimensions of the nature of work which has not been specified in the Certificate relied upon by the petitioner. 8. The petitioner, however, is not agreeable to the calculations made by the respondent. The petitioner and the learned Additional Advocate General were called in Chamber and the calculation was scrutinised. The matter was tried to be sorted out by understanding the calculations. The calculation as given by the petitioner is quoted herein below and according to the petitioner it comes out to be 300.01 lacs:- record and it is quoted below:- “(1) Total work done by Contractors - 258.05 lacs (2) Time passed - One year. . . On Rs. 100-10.00 1. 10/100 258.05 lacs 10 x 25805000000 100 1 =25805000000 = 258050000 100 =258050000 or 25.805 lacs Total - 258.05 25.805 283.855 Tender of Construction of Handakheda Pickup Weir. Computation of cost of work done updated to current price level as per Clause 3.2(a) and (b) of cost qualification documents of the tender. Part A (Ref . Certificate Issued by the E.E. Aklera dated 30.12.2005 enclose Part B Total Work Period 06.05.2003 to 31.03.2004 01.04.2004 to 15.07.2004 258.22 Lacs Amount of Work 212.34 Lacs 45.88 Lacs Period from To 31.03.2004 30.11.2005 (Date of receipt of Tender) 1 years 8 months = 1+8/12 = 1.67 year 15.07.2004 to 311.2005 1 years 4 months 15 days 1+4,5/12 = 1.38 years Increment @ 10% per year 16.70% 212.34 x 16.70/100= 35.46 lacs 13.80% 45.88 x 13.80/100=6.33 Updated Cost of Work 212.34 +35.46 45.88+6.33 =247.80 Lacs +52.21 Lacs 300.01 Lacs Hence cost of work done updated to current price level Rs. 300.01 Lacs. 9. I have considered the rival submissions and have given my thoughtful consideration. 10. 300.01 Lacs. 9. I have considered the rival submissions and have given my thoughtful consideration. 10. In terms of Clause 3.2(B) the petitioner was required to show that he had completed a work of Rs. 295.05 lacs in the last five years alongwith other specification. Though the Certificate filed by the petitioner shows Rs. 298.00 lacs but his case in the writ petition is that he had executed one contract of the dimension of Rs. 258 lacs in the year 2003-2004. 11. Without going into the controversy of the correctness of the Certificate if the provisions are examined then it would be relevant to note that in terms of 3.2(a), the price level is indicated in the table appended to Clause 3.2(b). 12. As far as the question of acceptance of contract and completing a contract of a nature and complexity in one year within the last five years is concerned, the question is to be seen in the light of Clause (b) of 3.2 and in this no price level formula is given for arriving at a price level. Thus, the price level has to be what is indicated in Paragraph (b) of 2. i.e., 295.05 lacs. According to the opinion of the Court sufficient margin had already been provided by the Department by reducing the level to 60% from the G-Schedule and this makes out the deficiency of current price level. 13. If the case of the petitioner is viewed from the angle of the petitioners own contention then he had completed a work of 258.05 Lacs in the year 2003-2004. If 10% is added then the calculations as indicated by the State Government comes out to be the correct interpretation of the level of which the petitioner had made the claim. The requirement is that the petitioner should have completed the work in one year of the desired amount. If it is seen in the light of Clause 3.9, for one year the calculations as submitted by the petitioner cannot be countenanced because in Part A of the calculation submitted by the petitioner and kept on record he has clubbed work for two different years. The work has to be judged in the light of one year configuration only and if that is added then calculations show that they come out to the level of Rs. The work has to be judged in the light of one year configuration only and if that is added then calculations show that they come out to the level of Rs. 283.855 because at the time of the account his work for Rs. 258 lacs was executed for the year 2003-2004 and if 10% of the same is added then it comes out to the level of Rs. 283.855 which is below Rs. 298.855 and in this background the claim of the petitioner that he had fulfilled the criterion as given in the qualification clause would not be sufficient to bring him in the qualification zone and in that background if his case has not been found to be of worth acceptance then it cannot be said that any illegality has been committed by the respondents. 14. At the request of the petitioner the bid acceptance documents were called and perused by the Court. In view of the discussions contained herein above it is not necessary to delineate the process of arriving at the final decision. That is because even if the case of the petitioner is considered to be correct he does not come within the zone of consideration. In any case, the examination of the proceedings broadly do not show that the claim of the petitioner can be sustained in view of the proceedings taken by the Department finally. 15. Here a mention may be made that Annexure-5 which is filed by the petitioner is the same document which was annexed by the petitioner with certain other tender. This Certificate like Annexure-A/5 appended with the other tender show this work done by him was of the level of Rs. 258 lacs. What is the reason of this discrepancy is not being decided or investigated in these proceedings. However, it reflects heavily that on the purport of a document a serious doubt about its veracity is available, the petitioner has based his claim on it. It is relevant to not that the claims made on the basis of the document Annexure-A, 5 is given up in the writ petition in Paragraph 14. The petitioner himself has stated that the Executive Engineer has not correctly arrived at Rs. 298 lacs. It was only Rs. 258.05 Lacs. If the escalation formula is adopted then the figure of Rs. 258 lacs only comes out to the level of Rs. The petitioner himself has stated that the Executive Engineer has not correctly arrived at Rs. 298 lacs. It was only Rs. 258.05 Lacs. If the escalation formula is adopted then the figure of Rs. 258 lacs only comes out to the level of Rs. 283 lacs as shown by respondent. It is below the qualifying figure and thus there appears to be no illegality committed by the respondents in rejecting the claim of the petitioner. There is no force in the writ petition, the same is, therefore, dismissed.