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2010 DIGILAW 430 (ORI)

RAMESH CHANDRA SAMANTARAY v. STATE OF ORISSA

2010-06-24

A.S.NAIDU, V.GOPALA GOWDA

body2010
JUDGMENT : V. Gopala Gowda, C.J. - This writ petition has been filed by the Petitioner seeking for issuance of a writ of certiorari to quash the retendering notice vide Annexure-7 and further to issue a writ of mandamus to the opposite party No. 2 i.e. Chief Construction Engineer, Kanpur Irrigation Project, Keonjhar direction him for issuance of a work order in his favour in respect of the work covered under Annexure-1 tender notice by accepting his bid offer urging various facts and legal contentions. 2. The brief facts, for the purpose of appreciating the rival legal contentions urged on behalf of the parties, are that opposite party No. 2 published a tender notice both in website as well as in daily News Paper inviting on-line item rate tenders fixing the date and time for submitting the tender paper from 10.11.2008 to 26.11.2008. The Petitioner after downloading the tender call notice from the website, submitted his tender documents within the prescribed time. The estimated cost of the project was Rs. 798.22 lakhs including excavation of Main Canal from R.D.1500 Mts. To 3120 Mts. In the (sic) was 9.9% less than the estimated cost. There were three competitors including the Petitioner for the said project work in question. It is the case of the Petitioner that out of them, he was the lowest bidder. The said financial bid was opened after the technical bid which was held on 28.11.2008 and it was found that the Petitioner's bid was the lowest one. As the validity of the bid for the aforesaid work has already expired on 23.2.2009, opposite party No. 2 vide his letter dated 26.2.2009 requested the Petitioner to extend the validity of the bid up to 30.06.2009 for processing of the financial bid with a further request to him to furnish the price analysis in support of the rate quoted by him at an early date, as per the documents under Annexure-2. In response to the said documents Petitioner submitted his reply on 9.3.2009 (Annexure-3) stating that the total bid amount offered by him comes to less than 9.9% of the estimated cost, as a result of which his bid amount is not seriously unbalanced as per Clause 41 of the Detail Tender Call Notice (D.T.C.N.) of technical Bid document. In response to the said documents Petitioner submitted his reply on 9.3.2009 (Annexure-3) stating that the total bid amount offered by him comes to less than 9.9% of the estimated cost, as a result of which his bid amount is not seriously unbalanced as per Clause 41 of the Detail Tender Call Notice (D.T.C.N.) of technical Bid document. As per the said clause additional performance security was required to be deposited by the successful bidder when the bid offered by him is seriously unbalanced than the estimated cost in the tender call notice to the extent of the differential cost of the bid amount and he had to submit 90% of the estimated cost in shape of post office Saving Bank Account or National Savings Certificates (NSC). It is further stated that there was no clause about the individual items and it indicated only the total bid amount, therefore, it was not required for him to furnish the price analysis. But despite of receipt of the same, opposite party again vide his letter dated 17.3.2009 made communication with the Petitioner for furnishing the analysis of rates for all the items except Item Nos. 9, 18, 24 and 25. 3. It is submitted that in view of the said reply dated 9.3.2009, further communication on 17.3.2009 was unwarranted, but in spite of the said fact Petitioner submitted the price analysis on 24.3.2009 vide Annexure-5. It is the further case of the Petitioner that he being the lowest tenderer as per the provision of law, he would have been awarded the work by entering into an agreement to start the project work. Despite the work order issued, no agreement was executed without assigning any reason and opposite parties are sitting over the matter even though the Petitioner has already deposited the required EMD as specified in DTCN. Again the Petitioner submitted reply to the notice dated 5.4.2009 in pursuance to the notice under Annexure-4 stating that in view of the reply letters under Annexures-3 and 5 no further analysis of rate is required to be furnished to the opposite parties. Again the Petitioner submitted reply to the notice dated 5.4.2009 in pursuance to the notice under Annexure-4 stating that in view of the reply letters under Annexures-3 and 5 no further analysis of rate is required to be furnished to the opposite parties. It is submitted that opposite parties with an ulterior motive are not executing the agreement in favour of the Petitioner and it is learnt from reliable source that they want to give the work to a person for their choice by retendering the project work and it was found to be true when it was published in daily news paper 'Sambad' dated 22.9.2009 inviting tender under Annexure-7. After going through Annexures-1 and 7, it is clear that the execution of work in both the tender call notices are same except excavation of Kanpur Main Canal from RD 3900 Mts. To 4890 Mts. including construction of cut and cover and from 6840 Mts to 7050 Mts including CD No. 11 (at RD-6945 Mts) to Kanpur Irrigation Project with estimated cost of Rs. 4225.16 lakhs. 4. It is further submitted that the action of the opposite party No. 2 is mala fide for the reason that he had retendered the very same project work vide Annexure-7 by adding two to three items which is uncalled for, without indicating any reason as to why work order can not be issued to the Petitioner though his tender offer was lowest among the three bidders. It clearly established the mala fide action on the part of the opposite parties, therefore, the re-tender notice under Annexure-7 is liable to be quashed. 5. The opposite parties have filed a detailed counter affidavit sworn to by one Rohita Kumar Sethi, Executive Engineer, Kanupur Canal Division, Jhumpura, in the district of Keonjhar, traversing all the averments of the Petitioner and denying the allegation made in the writ petition contending that Petitioner is not entitled for the relief as prayed for in the writ petition by assigning various reasons. It is admitted that the bid offer of the Petitioner was lowest one, but the rates quoted by the Petitioner in Item Nos. 3, 7, 13, 14 & 27 were less by more than 10% and items 3, 7, 13 & 27 were less by more than 25% of the estimated rates, where as the rates in respect of item Nos. 3, 7, 13, 14 & 27 were less by more than 10% and items 3, 7, 13 & 27 were less by more than 25% of the estimated rates, where as the rates in respect of item Nos. 1, 2, 4, 5, 10, 12, 15, 16, 19, 20 and 23 were excess by more than 25% over the estimated rates. The project Level Technical Committee analyzed the three major items, namely, item No. 5 (Excavation of all kinds of soil (AKS), Item No. 6 (Excavation of D.1.) and Item No. 7 (Excavation of Hard Rock (HR) by blasting) with quoted rates of Rs. 70/- -Cu.M., Rs. 70/- Cu.M. & Rs. 135/-Cu.M. respectively being 52.84% excess, 19.06% excess and 31.6% less than the estimated rates respectively and found that the analysis of item No. 5 & Item No. 7 are not based on reality on comparison of cost of excavation and transportation between AKS and Hard Rock. The tender Committee apprehended that since the quantity of Hard Rock coming under ground has been assessed tentatively basing on drill data, the quantity may vary during execution and if the quantity of hard rock decreases by 39,737 Cu.M. with corresponding increase or AKS and D.I. relative position of tender will change. Basing on the assessment of the PLTC, the members of the tender Committee meeting held on 25.06.2009 at Government level felt that since the estimate had not been prepared properly by the Petitioner and the quoted rates of the bidder were seriously unbalanced, irrational and speculative and tender should be rejected as per para 3, 5, 18 of the OPWD Code Vol.-I. Accordingly the Government in the Department of Water Resources vide its letter bearing No. IIT-KIP-1/2009-22468/WR, BBSR dated 25.08.2009 ordered to reject the bid and to invite fresh bid after preparing proper estimate and classifying the soil properly. It is stated that unless the said document is quashed the re-tender notice can not be quashed. It is stated that unless the said document is quashed the re-tender notice can not be quashed. As the e-procurement notice inviting Bid Identification No. CCE, KIP (KCD-01/2008-09 dt.31.10.2008 was cancelled on 07.09.2009 and intimated to all concerned vide the office Letter No. 4167/WE dt.07.09.2009 and further it is stated that as there was a stipulation in the Tender Call notice that the authority reserves the right to reject any or all tenders without assigning any reason thereof as per Para 3, 5, 18 of the OPWD Code Vol-I and since the work value is more than Rs. 7.00 crores and the Government is the approving authority as per amendment to Para 6, 3, 15 of OPWD Code Vol-I, question of issuing the work order in favour of the Petitioner by the opposite party after executing contract does not arise. 6. It is further stated that if quantum of rock is less by 39,737 Cu.M. the Petitioner will no more be the first lowest for which the detailed price analysis was asked for, from him, but he has failed to furnish the same despite repeated reminder letters issued to him. Since the Petitioner did not furnish the price analysis of items in response to Annexure-IX, he was reminded again vide letter No. 1370 dated 17.03.2009 by the Chief Construction Engineer, Kanupur Irrigation Project to furnish price analysis of all items which are more than 10% excess or more than 10% less except items 9, 18, 24 & 25 as he had submitted irrational rates in different items and the rate of excavation by means of excavator is also found to be excessive. The carriage change of rock should be more than that of soil charge. Therefore, the analysis was not based on reality and due to non-submission of the required price analysis by the Petitioner despite repeated communication by the opposite party No. 2, the bid offered by the Petitioner was cancelled and opposite parties re-tendered the same. The carriage change of rock should be more than that of soil charge. Therefore, the analysis was not based on reality and due to non-submission of the required price analysis by the Petitioner despite repeated communication by the opposite party No. 2, the bid offered by the Petitioner was cancelled and opposite parties re-tendered the same. Further the State Government in the Department of Water Resources vide its letter dated 8.5.2009 instructed to ask the Petitioner to clarify as to how he will execute the work when the rates quoted by him are seriously unbalanced along with the detailed analysis of rates in all items as recommended by the Tender Committee as per the proceedings of the Tender Committee under Annexure-P. Pursuant to the same, opposite party No. 2 vide his letter dated 14.5.2009 intimated the Petitioner to clarify the same as desired by the Tender Committee. Reminder was also issued to the Petitioner, but despite the same the Petitioner did not furnish price analysis as required by the Committee to examine as to whether he can execute the work by balancing both excess and less rates. Since he did not furnish the price analysis, the State Government had no option but to cancel the same and ask the opposite party No. 2 to re-tender the work, which has been challenged in this writ petition urging various contentions, which are wholly untenable in the eye of law and therefore, this writ petition is required to be dismissed. Further, the decision in cancelling the bid offered by the Petitioner is taken by the State Government and thereafter the present re-tender notification has been issued. 7. This Court has passed the interim order dated 20.10.2009 stating that the tender process pursuant to Annexure-7 shall not be finalized without leave of this Court till the next date of listing of the case. Thereafter this case was listed on 11.5.2010 on the basis of a Miscellaneous Application filed by the opposite parties seeking vacation of stay order. However, on the request of the learned Counsel for the parties matter was taken up for final hearing. 8. We have heard learned Counsel for the parties and perused the records. Thereafter this case was listed on 11.5.2010 on the basis of a Miscellaneous Application filed by the opposite parties seeking vacation of stay order. However, on the request of the learned Counsel for the parties matter was taken up for final hearing. 8. We have heard learned Counsel for the parties and perused the records. After hearing the case on merit and considering the fact situation of the case, now the questions that would arise for our consideration are (1) whether the Petitioner is entitled for issuance of a writ of certiorari quashing Annexure-7 without challenging the cancellation of the bid offered by the Petitioner vide order dated 25.08.2009? ; (2) whether the Petitioner has got right to question the re-tender notification in view of the right reserved in the tender call notice to reject the offer that the bids offered by the tenderer even if it is less than the estimated cost and lowest as compared to other tenderers are required to be accepted and execute the contract in his favour for execution of the project work; and (3) what order ? 9. In our considered view, all the aforesaid questions are required to be answered in favour of the opposite parties and against the Petitioner for the following reasons. 10. It is an undisputed fact that the financial bid offered by the Petitioner pursuant to Annexure-1 was examined by the Tender Committee and as it was found by it that the rates quoted by the Petitioner in respect of most of the items were seriously unbalanced and estimate had not been prepared properly, he had been called upon to submit the price analysis with reference to his rates quoted keeping in view the nature of excavation of the rock and works to be executed. Despite repeated reminders and opportunities given to the Petitioner, he did not submit his item wise price analysis as required by the Committee to justify his stand. Therefore, the State Government with reference to the relevant Clause 3.5.18 of the OPWD Code Vol.-I has taken a decision to reject the bid offered by the Petitioner and the same has been rightly communicated to the Petitioner vide its letter dated 25.08.2009. But even after receiving the said cancellation order Petitioner did not take any steps to challenge the same. But even after receiving the said cancellation order Petitioner did not take any steps to challenge the same. Therefore, the said order has become final and as the said order has become final, after cancellation of the bid offered by the Petitioner in respect of the project work notified in Annexure-1, the fresh tender call notice was rightly published as per Annexure-7 in the daily news papers and the same cannot be quashed on the mere allegation made by the Petitioner that the opposite parties have some mala fide intention to award the contract in favour of the person of their own choice and this allegation of the Petitioner cannot be accepted by this Court. 11. Having regard to the quantum of the work and the estimated cost to the tune of more than Rs. 7.00 crores, the decision making power vests with the State Government as to whether the financial bid of the Petitioner can be accepted or not. It is the State Government which has taken a decision after calling upon the opposite party No. 2 to ask the Petitioner to submit his price analysis as desired by the Tender Committee as it was found that the rates quoted by the Petitioner in various works and items are unbalanced. But, the Petitioner had failed to furnish the same as pointed out by the Tender Committee, his bid was cancelled and re-tender notice was issued. It is very much clear that after giving due opportunity to the Petitioner for submitting price analysis, his bid was cancelled and re-tender notification was issued. Further, issuance of re-tender notification is permissible in law, in view of the right reserved by the tender inviting authority in the tender call notice. The State Government being the tender accepting authority having regard to the quantum of work and the estimated costs of the project work being to the tune of more than 7.00 crores has rightly taken a decision invoking the clause of OPWD Code. The said decision of the State Government, having regard to the facts and circumstances of the case, cannot be termed as arbitrary and unreasonable as contended by the Petitioner. 12. For the reasons stated supra and considering the facts and circumstances of the case, we are of the view that the Petitioner has not made out a case for our interference. 12. For the reasons stated supra and considering the facts and circumstances of the case, we are of the view that the Petitioner has not made out a case for our interference. On the other hand he has approached this Court, without challenging the cancellation order of the bid offer, questioning the correctness of the re-tender notice urgine various legal contentions which are untenable in law. 13. In view of the aforesaid facts, we do not find any cogent reason whatsoever to interfere with the action of the opposite parties in cancelling the bid offered by the Petitioner pursuant to tender call notice under Annexure-1 and thereupon issuing re-tender notification under Annexure-7. Accordingly the petition is dismissed. The interim order dated 20.10.2009 stands vacated. It is open for the opposite parties to proceed with the tender process in accordance with law. Final Result : Dismissed