Barbrik Project Limited, Chattisgarh through its Director v. State of Jharkhand
2014-11-18
SHREE CHANDRASHEKHAR
body2014
DigiLaw.ai
ORDER : Aggrieved by decision of the Tender Committee dated 10.09.2014 whereby the bid of the petitioner Company has been rejected, the present writ petition has been filed. 2. The petitioner Company pursuant to notice dated 31.07.2014 of the Road Construction Department, Government of Jharkhand inviting bids through etender for widening and strengthening/reconstruction of GuaSalai Road from 2.00 kms. to 11.00 kms. for approximate value of Rs.7087.32910 lacs, participated in the tender process and duly submitted all required documents. However, the petitioner came to know that vide decision dated 10.09.2014, the bid of the petitioner Company has been rejected on the ground that the bank certificate submitted by the petitioner Company does not bear any date and thus, it does not fulfill Clause 4.3(g) of the SBD. 3. Mr. M.S. Mittal, the learned Senior Counsel appearing for the petitioner Company referred to Clause 4.2(i) and 4.3(g) of SBD and submitted that even the format of the bank guarantee, a copy of which is available on internet, does not disclose any date which is required to be put on the bank certificate. The petitioner submitted its bank guarantee strictly in terms of the format which is made available by the respondent Road Construction Department. Since the bank certificate issued in favour of the petitioner Company mentions the exact description of the work for which etender was issued, it would not make any difference whether any date has been given on the bank certificate or not, because such a certificate could not have been issued prior to the notification for etender. It is further submitted that the bank certificates submitted by the successful bidders, copies of which have been annexed as Annexure7 and 7/1 series indicate that the certificates issued in favour of respondent nos. 5 and 6 are invalid bank certificates nonetheless, the respondent State of Jharkhand has chosen to award the work under contract to respondent nos. 5 and 6. 4. Mr. Vaibhav Kumar, the learned counsel appearing for the respondent State of Jharkhand resisted the prayer of the petitioner and submitted that the bid of the petitioner has rightly been rejected because it does not fulfill the SBD conditions. 5. I have carefully considered the submission of Mr. M.S. Mittal, the learned Senior Counsel appearing for the petitioner and the counsel for the respondent State of Jharkhand and perused the documents on record. 6.
5. I have carefully considered the submission of Mr. M.S. Mittal, the learned Senior Counsel appearing for the petitioner and the counsel for the respondent State of Jharkhand and perused the documents on record. 6. The decision of the Tender Committee dated 10.09.2014 clearly speaks of Clause 4.3(g) of SBD and it records that since the bank certificate submitted by the petitioner Company does not bear any date, the condition contained in Clause 4.3(g) is not satisfied and therefore, the bid of the petitioner Company was liable to be rejected. Clause 4.3(g) of SBD reads as under: 4.3(g) “evidence of access to line(s) of credit and availability of other financial resources facilities (10% of contract value), certified by the Bankers (not more than 3 months old)”. 7. It is well settled that, a tenderer who failed to comply with the conditions of the tender, cannot claim as a matter of right that its bid should be considered and it is not entitled for grant of any relief from the Writ Court. A perusal of Clause 4.3(g) and the reason assigned by the Tender Committee in paragraph 8(III) of proceeding dated 10.09.2014 indicates that the petitioner has failed to fulfill the condition as contained in Clause 4.3(g) of SBD. The submission of the learned Senior Counsel that the format of bank certificate does not indicate that the date must be mentioned on the bank certificate and therefore, the bank certificate furnished by the petitioner should have been accepted deserves no acceptance, for the reason that the condition no. 4.3(g) specifically stipulates that the bank certificate must not be more than three months old. In a given situation there may be a case in which the tender is reissued and therefore, if date is not indicated on the bank certificate and merely description of the work is given, even a bank certificate more than three month's old can be used by a tenderer. 8. A tenderer must comply with the conditions of the tender document. A bid which is not in terms of the tender document is liable to be rejected. The tender document provides for correction of errors in case of “financial bid” and such corrections are limited to correction of the arithmetical error only. The bid document does not provide correction in the technical bid and therefore, the bid submitted by the petitioner has rightly been rejected.
The tender document provides for correction of errors in case of “financial bid” and such corrections are limited to correction of the arithmetical error only. The bid document does not provide correction in the technical bid and therefore, the bid submitted by the petitioner has rightly been rejected. A condition in the tender document is not open to judicial scrutiny on the ground that there can be better scheme of condition. 9. Referring to Annexure7 and 7/1 series, I find that the bank has given the certificate in terms of the format though, it has been mentioned that “certificate is issued without any risk and responsibility of the bank and any of its officers”. The insertion of this expression would not make the bank certificate issued in favour of the respondent nos. 5 and 6, invalid. Moreover, in the matter of government tenders, the Writ Court has limited jurisdiction and the only right in law available to a bidder is that, a person participating in tender must be afforded reasonable opportunity and the decision taken by the respondent should not be a mala fide exercise of power. 10. I find no merit and accordingly, this writ petition is dismissed.