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2013 DIGILAW 392 (JK)

Wani & Company v. Union Of India

2013-07-09

ALI MOHAMMAD MAGREY

body2013
1. The petitioner, a Class `A' contractor, registered with the Border Road Organization, has filed this petition seeking quashing of the Technical Bid Evaluation Summary / order dated 11.03.2013 issued by respondent no. 2 whereby the petitioner firm has been held to be `not meeting the criteria of experience of similar works' and, therefore, declared to have failed to qualify for the tender pursuant to NIT no. CE (P) SPK / 24 / 2012-13 dated 08.02.2012. The petitioner has also prayed for issuance of Mandamus commanding the respondents to evaluate the tender, technical and price bid, of the petitioner firm strictly as per the terms and conditions of the tender document and on its merits, and allot the work to the petitioner firm in the event the price bid quoted by the petitioner firm is found to be the lowest. It is also prayed that the respondents be commanded not to allot the work to any other tenderer without evaluating the price bid of the petitioner. 2. Respondent no.2, vide NIT no. CE(P) SPK/24/2012-13 dated 08.02.2013, invited tenders for: "PROVIDING, LAYING AND COMPACTION OF 100 MM AND 75 MM THICK WET MIX MACADAM, DENSE BITUMINOUS MACADAM 50 MM THICK AND SEMI DENSE BITUMINOUS CONCRETE 25 MM THICK CONSOLIDATED INCLUDING PRIME COAT AND TACK COAT AS PER MORT&H SPECIFICATION BETWEEN 0.00 TO KM 17.992 ON AKHNOOR-JOURIAN ROAD IN 13 BRTF SECTOR UNDER PROJECT SAMPARK IN J&K STATE." It is submitted that the petitioner, being interested and desirous of participation in the tendering process for allotment of the work in question, submitted its tender complete in all respects. The price bid was enclosed by the petitioner separately. It is stated that the petitioner was not called at the time of the opening of the technical bid evaluation. However, the firm came to know through e-procurement system, Government of India, Technical Bid Evaluation Summary, that it had been disqualified from participation in the tendering process on account of lacking the criteria of experience on similar works. Vide the aforesaid Technical Bid Evaluation Summary, it is averred, the petitioner firm was informed that the documents submitted by it alongwith the tender did not meet the eligibility criteria as per conditions given at paragraph 5.2.4 of the tender document to prove the similar work experience, and, thus, the petitioner firm was disqualified on technical evaluation. Vide the aforesaid Technical Bid Evaluation Summary, it is averred, the petitioner firm was informed that the documents submitted by it alongwith the tender did not meet the eligibility criteria as per conditions given at paragraph 5.2.4 of the tender document to prove the similar work experience, and, thus, the petitioner firm was disqualified on technical evaluation. The petitioner has challenged the said disqualification through the medium of this writ petition. 3. The respondents have filed their objections wherein they have unambiguously admitted the fact that the petitioner's tender stood disqualified in the tendering process by Technical Evaluation Board. It is averred in the objections that the petitioner was one of the tenders who submitted their tenders for the work in question. According to the fixed schedule, the technical evaluation was done by the Board of Officers, who were detailed for this purpose and whose names were also given on CPP Portal and after technical evaluation, the same was uploaded in the CPP Portal, which automatically generated e-mails to all those who had participated in the tendering process. It is further submitted that the petitioner's tender was disqualified in the tendering process by Technical Evaluation Board on account of its not meeting the criteria of experience on similar works. Hence, the petitioner failed to qualify for the tender, and that the petitioner was, accordingly, informed that their price bid shall not be opened. 4. It may be mentioned here that vide interim order dated 20.03.2013, a Coordinate Bench of this Court was pleased to keep in abeyance the operation of technical bid evaluation summary / order dated 11.03.2013. Resultantly, the allotment of the work and its execution has come to a halt. 5. I have heard learned counsel for the parties on admission of the petition and perused the record. 6. The controversy raised by the petitioner is related to the `Experience' Clause "A.2" prescribed under the `Eligibility Criteria, Clause 5.2.4' of the NIT. It would be profitable to extract the `Eligibility Criteria' hereunder: "5.2.4. Eligibility Criteria (A) Tenderers shall meet the following eligibility criteria: A.1 Capabilities (this criteria is exempted for tenderer enlisted with BRO in eligible class & above for works with estimated cost up to Rs. 25 crores as given in NIT). (a)............. (b)............. (c)............. It would be profitable to extract the `Eligibility Criteria' hereunder: "5.2.4. Eligibility Criteria (A) Tenderers shall meet the following eligibility criteria: A.1 Capabilities (this criteria is exempted for tenderer enlisted with BRO in eligible class & above for works with estimated cost up to Rs. 25 crores as given in NIT). (a)............. (b)............. (c)............. A.2 Experience:- Tenderer should have successfully completed or substantially completed three similar works costing not less than the amount equal to 40% of estimated cost of work or two similar works costing not less than the amount equal to 50% of estimated cost of work or one similar work costing not less than the amount equal to 80% of estimated cost of work in `last seven & current' financial years. These similar works should have been successfully completed or substantially completed at altitude 1000 m and above, if work is required to be executed at altitude 2100 m & above. Note: For MSME: If the firm registered with MSME of State / National level, they will be eligible for their bid against experience of similar works for execution contract up to Rs. 12 crore and supply contract up to 3 crore. The following documents must be submitted along with the bid: i)................. ii)................. iii)................. The work may have been preferably executed for Government Organizations. In case the work has been executed as JV or Sub Contractor, then the appropriate Government authority for subletting the work and performance of client should be made mandatory for consideration." 7. At the very outset, it may be observed here that the petitioner is not challenging the reasonableness or otherwise of the experience clause of the tender. Instead, its grievances are: first, that the impugned order does not pin-point and specify as to in what manner the petitioner is lacking in eligibility criteria; and second, that its working experience far exceeds the work in question. In this connection, it would be appropriate to quote hereunder paragraph 8(A) of the petition: "That the order / communication impugned is wholly arbitrary in nature and cannot be sustained in the eyes of law. The order impugned, even though mentions that the petitioner firm does not meet the eligibility criteria as per conditions given at para 5.2.4 of the tender document to prove the work experience, it does not pin-point and specify as to in what manner the petitioner is lacking in that respect. The order impugned, even though mentions that the petitioner firm does not meet the eligibility criteria as per conditions given at para 5.2.4 of the tender document to prove the work experience, it does not pin-point and specify as to in what manner the petitioner is lacking in that respect. The petitioner firm submits that it meets all the eligibility criteria as per the conditions laid down in para 5.2.4 of the tender document. The work experience possessed by the petitioner firm, and regarding which documents were submitted alongwith tender documents, meet all the eligibility criteria. Rather, the experience possessed by the petitioner firm is far too in excess than what has been prescribed in the tender document." 8. Relying on the aforesaid statements made in the writ petition, the learned counsel for the petitioner, referring to the documents placed on record to substantiate the aforesaid averments, argued that the impugned order is arbitrary and, therefore, violative of Article 14 of the Constitution of India. 9. The above assertion of the petitioner, relied upon during the course of arguments, shortens the realm of controversy. It be seen that the respondents in their objections / reply have stated that the technical evaluation of the tender documents was done by the Board of Officers, who were detailed for this purpose. The first and the foremost question, therefore, that arises is whether this Court in exercise of its extraordinary writ jurisdiction can sit in appeal over the decision of the expert body comprised of the Board Officers. This Court does not have the expertise to determine such an issue. It is the job of the Experts in the field to examine such technicalities and make a decision. It is not the case of the petitioner that the Board of Officers, who had come to the conclusion that the working experience of the petitioner did not meet the eligibility criteria, were not experts in the field, or that they had not considered the certificates produced by the petitioner. Law is settled that the job meant to be performed by the experts should be left to them. 10. Notwithstanding the above, it was argued that this Court, on the basis of documents placed on record, can have a look at the experience certificates of the petitioner and the requirements of the NIT to ascertain whether the respondents have fairly dealt with the petitioner. 11. 10. Notwithstanding the above, it was argued that this Court, on the basis of documents placed on record, can have a look at the experience certificates of the petitioner and the requirements of the NIT to ascertain whether the respondents have fairly dealt with the petitioner. 11. Let the condition of experience prescribed in the NIT be reiterated. It states that the tenderer should have successfully completed or substantially completed three similar works costing not less than the amount equal to 40% of estimated cost of work or two similar works costing not less than the amount equal to 50% of estimated cost of work or one similar work costing not less than the amount equal to 80% of estimated cost of work in `last seven & current' financial years. These similar works should have been successfully completed or substantially completed at altitude 1000 metres. 12. The phrase used in the aforesaid experience clause is "similar work". The ordinary dictionary meaning of the word `similar' means: `of the same kind in appearance, character, or quantity, without being identical'. Again, `kind' means `a class or type of people or things having similar characteristics'. Mere quantity would not make the two works comparable; they need to be comparable in typical features and quality. Going by the aforesaid simple dictionary meaning of the word, the requirement was that the contractor ought to have completed or substantially completed such works (of the magnitude mentioned in the clause) having the features or quality typical of the work so put to the tender. The word, in no sense of meaning can connote `any'. The term "substantially completed" has been defined in the tender document itself in the following words: "Substantially completed works means those works which are 90% completed on the date of submission (i.e. gross value of work done up to the last date of submission is 90% or more of the original contract price) and continuing satisfactorily." 13. Now, let the Experience Certificates submitted by the petitioner alongwith his tender documents and placed on record of this petition as annexures P5 and P6, be examined to find out whether the works executed by him are comparable to the work put by the respondents to tender. 14. Annexure P5 is a certificate dated 09.01.2013 issued by Executive Engineer, PMGSY Division, Doda. 14. Annexure P5 is a certificate dated 09.01.2013 issued by Executive Engineer, PMGSY Division, Doda. It reads as under: "Certified that M/S Wani & Co H/O Sidhra Bye Pass Jammu were awarded the work for the construction of road from Saras to Kastigarh Package No. JK04-99 by Chief Engineer PMGSY (JKRRDA) Jammu vide allotment No. CE/PMGSY/3699-3705 dated 05.08.2009. The payment has been made to the tune of Rs. 625.00 lacs out of the total allotted cost of 840.94 lacs, the road work including earthwork, cutting, filling, RCC / Hume pipe culverts, Retaining Walls / Breast Walls stands done satisfactory upto 80% by the contractor." 15. The second document placed on record of this petition, as annexure P6, by the petitioner is another certificate issued by the same Executive Engineer, PMGSY Division Doda. It reads as under: "Certified that M/S Wani & Co H/O Sidhra Bye Pass Jammu were awarded the work for the construction of road from Jodhpur (Mohalla) to Parshola Package No. JK04-97 by Chief Engineer PMGSY (JKRRDA) Jammu vide allotment No. CE/PMGSY/4641-45 dated 29.08.2009. The payment has been made to the tune of Rs. 648.16 lacs out of the total allotted cost of 1117.00 lacs, the road work including design work / fabrication / supply and launching of single lane steel girder motorable bridge (through / decktype) 21.5.50 m span and 32.50 m span costing Rs. 2.025 crores in progress on war footing and likely to be completed shortly." It is axiomatic from the aforesaid certificates that the works allotted to, or executed / being executed by, the petitioner were that of construction of roads which involved earthwork, cutting, filling, RCC pipe culverts, retaining walls / breast walls etc. etc. It be borne in mind that the work for which the instant tenders were invited related to "providing, laying and compaction of 100 mm and 75 mm thick wet mix macadam, dense bituminous macadam 50 mm thick and semi dense bituminous concrete 25 mm thick consolidated including prime coat and tack coat as per MORT&H specifications. The respondents in their objections / reply have specifically averred that this work is purely a Bituminous nature of work for which the petitioner had no experience certificate which was mandatory. It is further stated in the objections that the certificates submitted by the petitioner did not speak of any such experience. The respondents in their objections / reply have specifically averred that this work is purely a Bituminous nature of work for which the petitioner had no experience certificate which was mandatory. It is further stated in the objections that the certificates submitted by the petitioner did not speak of any such experience. This Court, as already, mentioned above, will be loath in substituting its own opinion for that of the Experts in the field. Even otherwise, on a bare comparison of the contents of the certificates relied upon by the petitioner and the experience clause of the NIT, there appears to be nothing similar in the two works to suggest that the respondents have acted unfairly against petitioner. There is thus a chalk and cheese difference between the works relied upon by the petitioner to demonstrate that he possessed the requisite experience and the work put to tender by the respondents. 16. As to the argument raised on behalf of the petitioner that the impugned order did not pin-point and specify as to in what manner the petitioner was lacking in the requisite experience, it may be noted that the respondents in paragraph 8 of their objections have clearly indicated that the work is purely a Bituminous nature of work for which the petitioner had no experience certificate. Further, in paragraph 8(D) of the objections, it is stated that the technical bid of the petitioner was fully considered and rejected after due application of mind. It is further stated therein that the reason for the disqualification of the petitioner was clear which under the CPP Portal read "As per document submitted, the firm has no experience on WMM, DBM and SDBC work". 17. Even if it be assumed that the respondents did not specify the manner in which the petitioner was lacking in the requisite experience, it is not the case of the petitioner that any prejudice was caused to him on account of non-mention thereof in the impugned order / communication. Mere non-mention of the same would not obliterate the opinion of the Expert Body and render the impugned communication / order illegal or arbitrary, unless it is shown that any prejudice was caused to the petitioner by reason thereof. Even so, as indicated above, the petitioner has been duly communicated the reasons. 18. Mere non-mention of the same would not obliterate the opinion of the Expert Body and render the impugned communication / order illegal or arbitrary, unless it is shown that any prejudice was caused to the petitioner by reason thereof. Even so, as indicated above, the petitioner has been duly communicated the reasons. 18. Law on the scope of judicial review of preconditions or qualifications for tenders is not res integra. Reference in this connection may be made to Michigan Rubber (India) Ltd. v. State of Karnataka, AIR 2012 SC 2915 , cited and relied upon by learned counsel for the respondents. In the aforesaid case, the Karnataka State Road Transport Corporation had floated a tender for supply of tyres, tubes and flaps, specifying certain pre-qualifications. The pre-qualification criteria were challenged by Michigan Rubber (India) Ltd. The writ petition was dismissed. The writ petitioner filed Writ Appeal which, too, was dismissed by the Division Bench. The matter finally came up before the Supreme Court. The Supreme Court, referring to, and relying upon its earlier judgments in Tata Cellular v. Union of India, (1994) 6 SCC 651 : ( AIR 1996 SC 11 : 1994 AIR SCW 3344); Raunaq International Ltd. v. I. V. R. Construction Ltd. & Ors., (1999) 1 SCC 492 : ( AIR 1999 SC 393 : 1999 AIR SCW 53); Union of India v. International Trading Co., (2003) 5 SCC 437 : ( AIR 2003 SC 3983 : 2003 AIR SCW 2828); Jespar I. Slong v. State of Meghalaya, (2004) 11 SCC 485 : ( AIR 2004 SC 3533 : 2004 AIR SCW 3399); Association of Registration Plates v. Union of India & Ors., (2005) 1 SCC 679 : ( AIR 2005 SC 469 : 2004 AIR SCW 7074); Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1 ; Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517; Tejas Constructions and Infrastructure Pvt. Ltd. v. Municipal Council, Sendhwa, (2012) 6 SCC 464 , has summarized the law in the following manner: "19. From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain health standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) in the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) if the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government; 20. Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial reviews, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational, that the court can say: ` the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached; and (ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Articles 226." 19. If the answers to the above questions are in negative, then there should be no interference under Articles 226." 19. Applying the aforesaid tests (i) and (ii) in the present case, there is nothing on record even to remotely suggest that the process adopted and the decision made by the Board of Officers was mala fide or intended at favoring someone; or that the decision taken is so arbitrary and irrational that no responsible authority acting reasonably and in accordance with relevant law could have reached at. In fact, what transpires is that the respondents have sought to strictly adhere to the eligibility criteria prescribed in the NIT, an act which is more in public interest. In that view of the matter, no interference is warranted. 20. It may also be noted here that the petitioner has also sought to plead mala fides against the respondents on the count that they had put the work to tender more than once only to exclude the petitioner. In this connection, reference is also made to the earlier writ petition, OWP no.1404/2012, filed by the petitioner during the pendency of which the counsel for the respondents had made a statement before the Court that the tender notice had been withdrawn.; consequently, the writ petition was dismissed. In response, the respondents in paragraph 8(F) of their reply have stated that the subject tender was issued five times with effect from 20th January, 2012, but every time the late amount was different and considered high. The respondents have also given in tabulated form the particulars of the five calls, the Lt. Amount, No. of participants and the LI Tenderer. However, it is stated that the petitioner participated in all these calls, except in the second call, but in all the calls the petitioner was found not qualified due to having "no similar work experience". 21. Petitioner through CMP no.396/2013 has brought on record a copy of NIT no. CE(P)SPK/17/2013-14 issued by respondent no.2 for "Providing, Laying and Compaction of 25 MM thick semi dense bituminous carpet including tack coat as per MORT&H specifications for resurfacing work between 0.00 to km 17.00 on road Kalai Khanetar-Jhalas in 31 BRTF Area under Project Sampark in J&K State". It is stated that in the aforesaid NIT, under clause A-2 pertaining to experience, an explanation has been incorporated. It is stated that in the aforesaid NIT, under clause A-2 pertaining to experience, an explanation has been incorporated. The explanation incorporated reads as under: "Similar work: "Providing, Laying and Compaction of 25 MM Thick Semi Dense Bituminous Concrete as per MORT&H Specifications for Resurfacing Work." According to the learned counsel, the aforesaid explanation establishes that the petitioner was having the experience of similar work for which the tender had been issued by the respondents. 22. If the aforesaid explanation clause on the definition of `similar work' is also read in the NIT which is the subject-matter of this writ petition, it would more reinforce the decision of the respondents rather than render any help to the petitioner. The explanation makes it manifest, rather emphasizes, that the experience contemplated by the NIT related to the express terms used in the NIT while describing the work, not any other work with whatever magnitude. It is reiterated that there is nothing contained in the certificates produced by the petitioner of the sort as is stated in, or required by, the NIT in question. 23. For the foregoing reasons, I do not find any ground to admit this petition to hearing. The writ petition is, accordingly, dismissed in limine alongwith the connected CMP. Interim direction dated 20.03.2013 is vacated. 24. Parties to bear their respective costs.