GSCO Infrastructure Private Limited v. State of Punjab through the Secretary Government of Punjab
2014-12-03
ASHUTOSH MOHUNTA, RAJ RAHUL GARG
body2014
DigiLaw.ai
JUDGMENT RAJ RAHUL GARG, J. 1. GSCO infrastructure Private Limited, a company duly incorporated under the Companies Act, 1956, through its Managing Director who is duly authorized and fully aware of the facts of the case, filed writ petition under Articles 226/227 of the Constitution of India for issuance of writ of Certiorari quashing order dated 13.10.2014 (Annexure P-5) whereby petitioner was held as not eligible to participate in Tender Process in respect of E-Tender Notice No. 2, Pataila dated 19.09.2014 (Annexure P-1) for work of converting Banur Canal System From Non-Perennial to Perennial by constructing weir for RD 0-1510 across river Ghaggar Near Chhatbir (balance work at the risk and cost of M/s. D.S. Pannu and Associates). By way of writ of mandamus, it was claimed that after holding petitioner eligible, respondents be directed to allow participation of petitioner in tender process by submitting its technical and financial BID. 2. The Pre-Qualification Criteria for the aforesaid work was that bidder should qualify one of the three-criteria of having successfully completed works during last five years (in lacs) at least one work valuing not less than 2000 lacs (Annexure P-1). This criteria was later on changed by increasing the value of one work from 2000 lacs to 2240 lacs vide corrigendum No. 1 dated 24.09.2014 (Annexure P-2). 3. Learned Shri Puran Singh Rana, Advocate for the petitioner argued that the petitioner attended pre-bid Conferences and submitted all the required documents relating to pre-qualification criteria of the bidders including original certificate of completion/experience issued by the Superintending Engineer, Narmada Development Circle No. 1, Sanwad, District Khargone (M.P.) (Annexure P-4). This certificate dated 16.11.2012 shows that the petitioner has successfully completed the work of Upper Beda Dam Project on 27.12.2010 amounting to Rs. 5079.25 lacs within a period of last five years. Later on, vide corrigendum No. 3 dated 13.10.2014 (Annexure P-5), respondents postponed the further processing of the tender due to administrative reasons till further orders. However, no reason for postponement of tender was conveyed to the petitioner. Subsequently, the petitioner came to know that the Tender Committee has held the petitioner as not eligible vide its report dated 13.10.2014 due to extraneous reasons. No such report was ever conveyed to the petitioner, but he got the copy of report through RTI.
However, no reason for postponement of tender was conveyed to the petitioner. Subsequently, the petitioner came to know that the Tender Committee has held the petitioner as not eligible vide its report dated 13.10.2014 due to extraneous reasons. No such report was ever conveyed to the petitioner, but he got the copy of report through RTI. In fact, as is evident from the certificate dated 16.11.2012 (Annexure P-4), petitioner completed the work of Upper Beda Dam Project on 27.12.2010 for an amount of Rs. 3871.21 lacs. Of course, this work was allotted vide agreement dated 01.10.2003, yet the said work has been completed during the last five years. Criteria laid down in the tender nowhere provides that a bidder should have executed work not less than Rs. 2240 lacs within the last five years starting from 2009 to 2014. 4. Learned counsel for the petitioner further submitted that the intention behind this condition is only about completion of one work during the last five years of not less than Rs. 2240 lacs and not that work worth Rs. 2240 lacs should have been executed by the bidder during last five years. Had it been contrary to this, it would have been specifically written in the pre-qualification criteria itself. 5. On the other hand, it was argued by Sh. Kamal Sehgal, Additional Advocate General, Punjab that as per certificate issued by the Executive Engineer, Narmada Development Division No. 9, Bhikangaon, the petitioner has executed work amounting to Rs. 265.35 lacs during 2009-10 and Rs. 57.06 lacs during 2010-11. Thus, total quantum of work executed during the last five years (2009-14) work out to Rs. 322.41. Thus, although the work has been completed during the last five years but the quantum of work executed during this period of five years is Rs. 322.41 lacs only against the requirement of Rs. 2240 lacs. Even clarification in this regard was also sought by the committee from Sh. S.K. Goel, Consultant through Chief Engineer/Canal who gave the opinion. In my opinion the Contractor should have completed one work and execution of work for an amount of Rs. 22.40 crore during the five years. As such, petitioner has not executed this work for an amount of Rs. 22.40 during the last five years, thereafter, he is not eligible as per the pre-qualification criteria. 6.
In my opinion the Contractor should have completed one work and execution of work for an amount of Rs. 22.40 crore during the five years. As such, petitioner has not executed this work for an amount of Rs. 22.40 during the last five years, thereafter, he is not eligible as per the pre-qualification criteria. 6. After giving thoughtful consideration to the arguments advanced by both the counsel for the parties and appraising the record, we do not find favour with the arguments advanced by learned counsel for the petitioner. 7. Parties are not in dispute so far as above mentioned facts and figures are concerned. Certificate dated 07.06.2010 issued by Executive Engineer, Narmada Development Division No. 9, Bhikangaon (M.P.) shows that the petitioner executed work in the year 2009-10 for Rs. 265.35 lacs and in the year 2010-11 for Rs. 57.06 lacs (total Rs. 322.41 lacs). Objective behind keeping the criteria is to judge the capability of the bidders. Criteria was kept not only for completion of the work, but to judge if a bidder is efficient enough to complete the work of aforesaid amount during the prescribed period. This is necessary because the work executed much before the present work cannot be considered sufficient to judge the capability of the bidders of being competent to execute the work at present. If a bidder, who has taken the work in the year 2003 but completes it in the year 2010 after seeking extension etc. cannot be considered to fulfill the pre-qualification criteria which calls for the completion of work within much shorter period. If a bidder is not able to complete the work within given time frame but after taking a long time, certainly that person cannot be considered a competent Contractor able to execute work efficiently. Of course, it is always in the interest of work to have better competition, but at the same time quality matters. Resultantly, by the word completed we mean that one should have completed one work of the required worth from start to end within the specified time and not the one started earlier in time but completed during the last five years. 8. In this case, undisputedly, under contract agreement, petitioner was allotted work of Upper Beda Dam on 01.10.2003 for an amount of Rs. 38.71 crore. He executed the work during 2009-10 for Rs.
8. In this case, undisputedly, under contract agreement, petitioner was allotted work of Upper Beda Dam on 01.10.2003 for an amount of Rs. 38.71 crore. He executed the work during 2009-10 for Rs. 265.35 lacs and in the year 2010-11 for Rs. 57.06 lacs totaling Rs. 322.41 lacs. Therefore, from 2009 to 2014, since petitioner did not complete the work for Rs. 2240 lacs, therefore, we find no illegality or irregularity in the order dated 13.10.2014 (Annexure P-5). 9. It was further argued by learned counsel for the petitioner that respondents cannot change the original pre-qualification criteria. In Invitation For Bids (IFB), pre-qualification criteria (Annexure P-1) regarding experience in Hydraulic works for the bidder is that they should qualify one of the three criteria of having successfully completed works during the last 5 years (in lacs), i.e. at least one work valuing not less than 2000.00 lacs. So was the criteria in original IFB. Vide corrigendum No. 1 dated 24.09.2014 (Annexure P-2), this was changed by increasing the value of one work from 2000 lacs to 2240 lacs. So was done with sole and mala fide intention to exclude eligible bidders who had executed works valuing below 2240 lacs but above 2000 lacs as one of the favourite bidder of the respondents who had executed work upto 2241 lacs and is getting maximum works allotted in his favour on account of political links in Punjab Irrigation Department. Tender in question had been issued at the risk and cost of previous Contractor and tender of previous Contractor provides about experience of one work of having value of 2000 lacs only (Annexure P-3). For this reason as well increase in the value of one work cannot be done and such increase is illegal. 10. On the other hand, it was argued that the increase was nothing but correction of figure as the figure is based on the total estimated contract value by applying particular formula. Earlier the estimated contract value was Rs. 3028 lacs and in the present tender for left over work, the estimated cost is Rs. 3390.37 lacs. He further contended that as per formula, i.e. 20/30.28 X contract value rounded of, the figures had to be corrected. Under these circumstances, corrigendum had to be issued on 24.09.2014. 11. The arguments advanced by learned counsel for the respondents carries weight.
3028 lacs and in the present tender for left over work, the estimated cost is Rs. 3390.37 lacs. He further contended that as per formula, i.e. 20/30.28 X contract value rounded of, the figures had to be corrected. Under these circumstances, corrigendum had to be issued on 24.09.2014. 11. The arguments advanced by learned counsel for the respondents carries weight. Value of work has to be as per estimated contract value. Of course in this case, work is to be got executed on the risk and cost of M/s. D.S. Pannu and Associates. Thus, if as per estimated contract value of 3028 lacs, value of work has been increased that too after applying the formula, we see no illegality on the part of respondents, in increasing the value of work. Even otherwise, this correction of value does not prejudice the petitioner in any manner. In fact, petitioner s disqualification has no relevance with this change in figure. 12. For the above said reasons, this writ petition being bereft of any merit, is ordered to be dismissed. Petition dismissed.