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2014 DIGILAW 164 (JK)

Sham Kumar Gandotra v. Union Of India

2014-04-09

TASHI RABSTAN

body2014
1. The challenge in this writ petition is to Technical Bid Opening Summery/Order dated 04.11.2013 issued by Chief Engineer, HQ CE (P) Sampark, respondent No.2 herein, whereby the firm of the petitioner has been disqualified for allotment of contract. 2. The facts, as averred in the writ petition, are that the petitioner is the sole proprietor of M/s. Sham Kumar Gandotra having its Head Office at Rajouri and in the year 1999 was registered with the Public Works Department of the State as Class "A" Contractor, besides it is also registered with the Border Road Organization under the Ministry of Road, Transport and Highways, Government of India, as a Class "B" Contractor since 06.09.2012. Respondent No.2 in August 2013 invited online bids for providing, laying and compaction of three layers of WMM Each 75 MM Thick Consolidated between KM 59.272 to KM 68.843 on Reasi-Pouni-Siar-Rajouri Road and the estimated cost of the work was fixed at Rs.163 lacs. The petitioner-firm also submitted its tender complete in all respects within the due date after depositing an amount of Rs.2000/- as costs of the tender documents. It is claimed that the petitioner was not called at the time of opening of technical bid; however, he was informed that his tender has been rejected as the documents submitted by him along with the tender allegedly did not meet the eligibility criteria as per the conditions given at Paragraph 5.2.4 A.2 of the tender documents. Petitioner is thus aggrieved of disqualification/rejection of his tender on account of not possessing the criteria of experience on similar works conveyed to him vide Technical Bid Evaluation Summary/Order dated 04.11.2013 issued by respondent No. 2 3. Objections on behalf of respondents have been filed. 4. The precise and only stand taken by the respondents is that the petitioner had failed to qualify for the tender as he did not meet the criteria of experience on similar works as defined in Paragraph 5.2.4 A-l of the tender documents, therefore, the evaluation Board has rightly disqualified the petitioner-firm from participating in the tendering process. 5. Heard learned counsel for the parties and perused the writ record. 6. 5. Heard learned counsel for the parties and perused the writ record. 6. The contention of petitioner is that the respondents found the petitioner-firm eligible in respect of all the terms and conditions as contained in the tender notice and, accordingly, issued the Technical Bid Opening Summary in which the status of petitioner was shown as admitted. However, the respondents on the same very day with malafide intentions issued Technical Bid Evaluation Summary in which the petitioner-firm was shown to have been rejected on account of lacking in meeting the required criteria. Thus, it is contended that this action on the part of respondents amounts to violating the fundamental rights of petitioner. To substantiate his argument, learned counsel for petitioner relied upon a judgment delivered by a Coordinate Bench of this Court on 09.07.2013 in OWP No.396/2013 dealing with the same issue. While disposing of the writ petition, the Court quashed the Technical Bid Evaluation Summary. It would be relevant to reproduce paragraph 15 of the said judgment hereunder: "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." 7. etc." 7. While contending that the terms and conditions of the tender notice, subject matter of OWP No.396/2013, were the same as that of the tender notice, subject matter of present writ petition, it is pleaded that the respondents cannot debar the petitioner from participating in the tender process, more particularly when the respondents in both the petitions are same and identical issue has already been set at rest in OWP No.396/2013. Therefore, in this backdrop, the action on the part of respondents is arbitrary and discriminatory in nature, besides it smacks of malafide intentions and violates the fundamental rights of petitioner. 8. There is no rebuttal by the respondents to the documents placed on record by the petitioner through CMA No.326/2014, wherein certain documents/certificates show that the petitioner-firm has sufficient experience of executing such like works. Thus, while relying on said documents, it was argued that a particular component of road works cannot be isolated to deny the right of eligibility to a registered contractor; disqualification of petitioner on the ground of not having experience of similar works, thus, is totally illegal, when there was no specific detail of similar works mentioned in the tender documents. Therefore, it was argued that a component of the work, which is a part of general work for construction of roads, cannot be picked up separately to deny the eligibility criteria. 9. The core question raised by the respondents is that the petitioner-firm did not possess the required criteria of experience on similar works as contained in the tender documents. For better appreciation and proper adjudication of the matter, it would be relevant to reproduce relevant extract of Condition 5.2.4 of the Eligibility Criteria hereunder: (A) Tenderers shall meet the following eligibility criteria.: A.I. Capabilities (this criteria is exempted for tenderer enlisted with BRO in eligible class and above for works with estimated cost upto Rs.25 crores as given in NIT). (a) .. (b) ................. (c) ................. A.2. Experience: Tenderer should have successfully completed or substantially completed three similar work 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 1000m and above, if work is required to be executed at altitude 2100 m and above." 10. The Notice inviting Tenders issued by respondent No.2 was for providing, laying and compaction of three layers of WMM each 75 MM thick consolidated as per MORT&H specification between KM 59.272 to KM 68.843 on road Reasi-Pouni-Siar-Rajouri in 31 BRTF Sector under Project SAMPARK in J&K State. 11. The contention of petitioner is that there was no specific detail of similar works mentioned in the tender documents; otherwise the petitioner-firm has sufficient experience of executing such like works with various authorities including the respondents herein. 12. The eligibility criteria as contained in the present tender notice and the eligibility criteria as mentioned in tender notice, subject matter of OWP No. 396/2013, are identical and similar. The ordinary dictionary meaning of the word `similar' as used in the aforesaid `experience clause' means `having a resemblance in appearance, character, or quantity, without being identical'. 13. One of the certificates placed on record by the petitioner is of Garrison Engineer certifying that the petitioner-firm has executed the construction work of hard standing forest, which included earth work covering area 5400 sqm, back filling and premixing, amounting to Rs.17.18 lacs. The next Certificate is of Executive Engineer, PWD (R&B) Division, Rajouri, certifying that the petitioner-firm has executed the construction work of road from Gadyoug to Cheka Khetar, amounting to Rs.63,47,456/-. 14. Annexure P4 is a Certificate issued by the Executive Engineer, Local Bodies Division-I, Jammu. It reads as under: "It is certified that construction of New Bus Stand at Salani Bridge Rajouri by way of earth work in cutting and filling (main area 1% to 5%) slope earth in filling material brought from outside by MT 150 MM thick stone soling, 100 mm thick metalling (WEM) II, 75 mm thick metaling (WEM) III complete, amounting to Rs. 27.26 lacs (Rupees twenty seven lacs and twenty six thousand only) allotted to Sh. Sham Kumar Gandotra Contractor vide Director Urban Local Bodies Order No. 225-DULBI of 2005 dated 18.06.2005 stands completed in the year 2005-06 by 18.06.2005 stands completed in the year 2005-06 by the concerned agency." 15. Annexure Rl is a Certificate issued by the Executive Engineer, PMGSY Division, Rajouri. Sham Kumar Gandotra Contractor vide Director Urban Local Bodies Order No. 225-DULBI of 2005 dated 18.06.2005 stands completed in the year 2005-06 by 18.06.2005 stands completed in the year 2005-06 by the concerned agency." 15. Annexure Rl is a Certificate issued by the Executive Engineer, PMGSY Division, Rajouri. It reads as under: "This is to certified that M/s Sham Kumar Gandotra, contractor has completed the work satisfactory for construction of road from Rajal Thathi to Hanjana (stage-II), sanctioned) under phase VI, vide package No. JK12-68.The total allotted amount is Rs. 95.75 lacs out of which payment for an amount of Rs. 87.68 lacs stand already made to the contractor and claim for balance payment is under process and shall be paid in the final claim after observing necessary codal formalities.'" 16. Besides hearing learned counsel for both sides, I have gone through the writ record, the documents produced by the petitioner and the judgment passed by a Coordinate Bench of this Court. In my considered view the case of petitioner needs reconsideration by the respondents. 17. In the given circumstances, the writ petition is disposed of with a direction to respondent No.2 to reconsider the claim of petitioner on the basis of certificates placed on record of the writ petition as also the judgment passed by a Coordinate Bench of this Court, referred to above, before allotment of the contract-in-question and pass the reconsideration order within a period of two weeks from the date a copy of this judgment is served upon him. Petitioner is also at liberty to produce any other documents/certificates before respondent No.2 in support of his claim. 18. Disposed of along with connected CMA.