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2013 DIGILAW 143 (PNJ)

ITD Cementation India Limited v. State of Punjab

2013-02-06

A.K.SIKRI, RAKESH KUMAR JAIN

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Judgment A.K. SIKRI, J. It is pleaded by the petitioner that it fulfilled all the eligibility conditions and, therefore, claims to be the responsive bidder. Notwithstanding the same, the Bid Evaluation Committee has treated it ineligible and rejected its technical bid. As a result, financial bid, which was to be opened has not been opened. The petitioner further states that since the bids were submitted online, as per the online status of the various bidders, who had submitted the bids, the bid of the petitioner was treated as non-responsive and, therefore, the price quoted by the petitioner has not been mentioned. It is submitted that the petitioner had given its bid in the sum of Rs. 604.367/- crores, which was lower than all the other bidders whose bids were found to be responsive. Bid of one M/s Soma CWP Bureya JV is in the sum of Rs. 687.51/- crores, which was found to be L1 and has been awarded the contract ultimately, which is much higher than the bid submitted by the petitioner and, therefore, no public interest is going to be sub-served by the respondents in accepting the bid of the said L1. 2. While issuing notice of motion on 23.01.2013, we had directed Mr. Puri, learned Additional Advocate General, Punjab to accept the notice and produce the record containing the reasons for disqualifying the petitioner. Mr. Puri had produced the record on the next date of hearing i.e. 30.01.2013. On that date, learned counsel for the petitioner had sought short adjournment to make his submissions. That is how case was adjourned for today. The original records produced by the respondents show that the main reason given by the Evaluation Committee treating the bid of the petitioner as non-responsive was that it does not meet the main eligibility criteria of having completed/substantially completed work of specified value. Minutes which are recorded in this behalf qua the petitioner state as under:- “The bidder is a single entity. The bidder does not meet the main eligibility criteria of having completed/substantially completed work of specified value. As per bidder, it had executed work of Rs. 302.43 crore on EPC mode which constitutes more than 99.19% of awarded value 305.43 crore (reduced value of work) and updated value of work comes to Rs. The bidder does not meet the main eligibility criteria of having completed/substantially completed work of specified value. As per bidder, it had executed work of Rs. 302.43 crore on EPC mode which constitutes more than 99.19% of awarded value 305.43 crore (reduced value of work) and updated value of work comes to Rs. 338.72 crore after accounting for escalation factor as provided in contract data appended in bid document which is more than Rs. 330 crore. However, on seeking authentication from employer (Irrigation and CAD Department, Government of Andhra Pradesh vide letter No. EE/Div.No.1/SYP/RMGM/ATOII/209/M/ INU dated 08.11.2012) copy of letter is attached at Annexure-G, it has been informed that bidder completed work to the extent of 74.21% of project works upto July, 2010 but thereafter has failed to take up the balance work inspite of repeated correspondence and even started removing the machinery work from work site without informing the department, which compelled the department to withdraw the balance work from the bidder. The committee had decided in the 3rd meeting that for all purposes 'Contract Price' is to be considered for evaluation and any withdrawal of work from scope for the contractor attributable to the contractor is not to be accounted for. Further the contents of employer reference dated 08.11.2012 refers to almost a penal action by the employer. This penal action attracts provision of Clause 4.10 of ITB. After careful consideration of the contents of the said reference from Government of Andhra Pradesh, the Committee concluded that the bidder does not fulfill eligibility as regards experience of civil work and provisions of clause 4.10 of ITB are equally applicable and as such the bid is non-responsive.” 3. As clear from the above, another consideration which weighed with the respondents was the communication received from the Irrigation and CAD Department, Government of Andhra Pradesh stating therein that the petitioner had completed 74.21% of project works upto July, 2010. Thereafter, it had failed to take up the balance work inspite of repeated correspondence. The work was ultimately withdrawn from the petitioner by the Andhra Pradesh Government. Mr. Thereafter, it had failed to take up the balance work inspite of repeated correspondence. The work was ultimately withdrawn from the petitioner by the Andhra Pradesh Government. Mr. Puri has produced copy of communication dated 08.11.2012 received from the Government of Andhra Pradesh and in this letter it is, inter alia, observed that the Irrigation and CAD Department of the Government of Andhra Pradesh had issued three consecutive notices to the petitioner to resume the project work stating that the work would be withdrawn from the agency under Clause 60(c) of Preliminary Specification to Andhra Pradesh Detailed Standard Specifications (hereinafter referred to as PSAPDSS) if the work is not resumed immediately. The letter further goes on to mention that even after receiving these notices, the petitioner did not turn up and part work in the sum of Rs.102.75/- crores was withdrawn under Clause 60(c) of PSAPDSS and entrusted to another agency. Copy of Clause 60(c) of PSAPDSS is also annexed with this letter dated 08.11.2012. On going through Clause 60(c) of PSAPDSS, it is found that this clause pertained to the right of the employer to withdraw the work in case the rate of progress is slow. The said clause is in the following terms:- “It shall be a further right of the Executive Engineer, under this clause, at any time the “Rate of Progress” in the agreement is not maintained, to give any part of the work to any other contractor at his discretion, in order to maintain the “Rate of Progress” upon the completion of that part of the work that is withdrawn, the Executive Engineer shall certify the amount of expenditure incurred by the department for getting it completed by another contractor or contractors. Should the amount so certified be less than the amount which would have been due to the contractor on the completion of that part of the work by him, the difference shall not be paid to the contractor. [Should, however the former exceed the latter, the difference shall be recovered from the contractor by the Government, provided however that such a recovery shall not exceed 5% of the total contract amount.” 4. [Should, however the former exceed the latter, the difference shall be recovered from the contractor by the Government, provided however that such a recovery shall not exceed 5% of the total contract amount.” 4. We also find from the conditions stipulated in NIT issued by the respondents herein for the work in question that one of the eligibility conditions is that the bidder must have completed (not less than 90%) civil work pertaining to execution of civil structures such as dam/barrage in water resource/river valley projects costing not less than Rs. 330 crores on EPC mode during the last ten (10) years (commencing from 1st April, 2002). 5. Learned counsel for the petitioner argues that the aforesaid communication of the Irrigation and CAD Department of the Government of Andhra Pradesh is wholly misconceived and contrary to records. In his endeavour to make this submission good, he has produced copies of certain correspondences exchanged between the petitioner and the Irrigation and CAD Department of the Government of Andhra Pradesh and also Minutes of certain meetings. On that basis, it is sought to argue that the slow progress of work was not attributed to the petitioner, but for the faults for which Government of Andhra Pradesh was responsible. However, in the present case, we are not dealing with the dispute between the petitioner and the Government of Andhra Pradesh and, therefore, it is not for us to comment as to whether communication dated 08.11.2012 written by the Government of Andhra Pradesh to the respondents herein is correct or not. 6. The matter pertains to award of contract by the State Government for which bids were invited. In exercise of judicial review over the decision taken by the respondents, this Court can go only into decision making process and not the decision on merits. This was made clear by the Supreme Court in a number of cases. It would be sufficient to refer to one such case titled as Tata Cellular Vs Union of India, 1994(6) SCC 651 , wherein the following principles were culled out by the Supreme Court:- “(1) The modem trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 7. We have to examine the validity of the action taken by the respondents on the touchstone of the aforesaid parameters laid down by the Apex Court. It is to be borne in mind that the project i.e. work of construction of main dam at Shahpurkandi Dam Project is of national importance. The value of this project is also of high order. Therefore, the Evaluation Committee has to take into consideration all the aspects in mind. When the Evaluation Committee set up by the State of Punjab for the work in question received a letter from another State Government i.e. Government of Andhra Pradesh, as mentioned above, it was neither feasible nor advisable in public interest for the Evaluation Committee to ignore the contents of that letter. The decision which is arrived at by the Evaluation Committee based on the aforesaid letter cannot be faulted with. This is a bonafide exercise done by the Evaluation Committee being influenced by what is stated in the letter written by the Government of Andhra Pradesh, which would be of material consideration. The decision which is arrived at by the Evaluation Committee based on the aforesaid letter cannot be faulted with. This is a bonafide exercise done by the Evaluation Committee being influenced by what is stated in the letter written by the Government of Andhra Pradesh, which would be of material consideration. Therefore, in so far as the respondents herein are concerned, the decision arrived at is on the basis of relevant consideration and this Court is not in a position to interfere with the same. In case, the petitioner feels that what is stated in the letter dated 08.11.2012 written by the Government of Andhra Pradesh depicts false picture in so far as the performance of the petitioner relating to the contract awarded by the Government of Andhra Pradesh is concerned, the petitioner may have its own remedies against the Government of Andhra Pradesh. 8. With these observations, finding no merit in the present writ petition, the same is dismissed.