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2014 DIGILAW 329 (TRI)

Renu Lal Roy v. State of Tripura

2014-09-08

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT : Deepak Gupta, J. 1. The short issue involved in this petition is whether the respondents could refuse to supply the tender form to the petitioners or not. Briefly stated the facts of the case are that the Executive Engineer, DWS Division, Kalyanpur, PWD, Khowai, Tripura issued a Notice Inviting Tender for various works. The condition relating to sale of tender documents reads as follows:- "Tender documents shall be issued on Payment of Rs. 500.00 (Rupees five hundred) only in cash (Non-refundable) on any working days as specified above on production of documentary proof of PAN Card, valid PTCC/STCC (wherever applicable), enlistment certificate and licence regarding engagement of workers in the contract work from labour Department, Govt. of Tripura and registration of firm in case of firm and companies along with an application." 2. The case of the petitioners is that they complied with all the conditions contained in the above quoted clause of the Notice Inviting Tenders, but tender was not sold to them by the respondent-Executive Engineer. 3. On notice being issued counter affidavit has been filed on the affidavit of the Deputy Secretary, Government of Tripura and the relevant portion of the reply reads as follows:- "(6) Sans unnecessary details the case of the respondents, in brief, was that tender forms were not sold to the petitioners simply because of the fact that they do not have required experience certificate of doing similar nature of work for which tender was invited. It is crystal clear from the NIT that the Respondent No. 3 invited tender from bona fide contractors having experience in similar nature of work in pipeline with good credential in PWD Form No. 7. Since the work in question is construction of Pump House and installation of submersible Pump Motor of DTW scheme laying GI/PVC pipeline and other allied works under DWS Sub-Division, Mungiakami, the petitioners ought to have experience in laying of GI pipe line apart from other which is the major work. Since the petitioner could not show any paper of their having experience in laying of GI pipe line, they were not issued tender form. Apart from this there is no other ground to reject their claim. Since the petitioner could not show any paper of their having experience in laying of GI pipe line, they were not issued tender form. Apart from this there is no other ground to reject their claim. Presently work order has been issued to one Bishu Charan Biswas vide Work Order No. 01/WO/EE/KLNP/PWD/DWS/2014-15 dated 31.5.14, a copy of which is enclosed herewith and is marked as Annexure - R/1 of this affidavit. On 27.05.2014 tender was opened and the same was finalized on 30.05.2014. The works are in progress. As per record 200 mt. laying of GI Pipe has been completed." 4. Therefore, the case of the respondents is that according to them, the petitioners did not have requisite experience of doing the work as required under the tender document and therefore, the tender document was not sold. It has also been urged by the respondents in Para 8 of the reply that- "(8) In this respect, it is to mention here that the tender was invited from the experience contractors in similar nature of works for execution of work in a time bound manner but not at the cost of quality of work as laid down in the specification of the aforesaid DNIT. Such commitment of maintaining quantity and quality of the work can be fulfilled only by engaging experience contractor in similar nature of work, not the inexperience contractor. Consideration of the prayer of your clients will be against the provision of the aforesaid Press NIT, which is not at all permissible. So your client may be requested to withdraw such type of undue claim for issuing them tender form so that the tender may be opened and finalized in due course for extending benefit to the tribal people of the hilly areas as well as the State of Tripura." 5. In Para 25 of the reply as follows:- "(25) That in reply to the contention made in Para - 22 of the petition I submit that selling of tender form to the petitioners would mean that they are eligible tenderers having experience in similar nature of work. By selling those tender forms to the petitioners will make them having experience in similar nature of work, otherwise, they would not have the required tender form. By selling those tender forms to the petitioners will make them having experience in similar nature of work, otherwise, they would not have the required tender form. Once the form is issued to them they would claim that the authority accepted their experience in the similar nature of work and as such forms would have been sold to them. I submit that the petitioners do not have pre qualification for purchasing tender document." 6. According to the respondents, in case they had sold the tender document to the petitioners, the petitioners would have claimed that by selling them the tender document the State had accepted the fact that they had requisite experience. 7. We are unable to accept the stand of the respondent - State. A tender document will have to be sold to every party, who is willing to pay the cost of the tender document and satisfies the qualifications laid down in the tender document for sale of the document. In the Notice Inviting Tender, there is no condition that before sale of tender, the party has to satisfy that it has requisite experience. The party which submits his tender along with the tender document may be required to submit necessary experience certificate, but at the stage of sale and purchase of tender document, the authority has no business of asking for such experience. Therefore, we have no hesitation in holding that the action of the respondents is totally illegal and is liable to be set aside. 8. In the present case, the petitioners have approached this Court at a belated stage and we have been informed that the tender has already been awarded and in fact, the work is almost complete. Therefore, we cannot grant any further relief to the petitioners, but we want to make it absolutely clear, that in future, whenever similar Notice Inviting Tenders are issued, the authorities will not refuse to sale the tender documents on grounds which they have to consider when the tenders are to be evaluated. This evaluation has to be done at the stage after tenders are opened and cannot be done at the time of sale and purchase of tender documents. A party who goes to purchase the tender documents is not required to carry with it all the documents which make it eligible for award of the tender. This evaluation has to be done at the stage after tenders are opened and cannot be done at the time of sale and purchase of tender documents. A party who goes to purchase the tender documents is not required to carry with it all the documents which make it eligible for award of the tender. It is only required to produce and furnish those documents which are required at the time of sale of the tender document. In the present case, the only documents required was proof of PAN card, valid PTCC/STCC wherever applicable, enlistment certificate and licence regarding engagement of workers in contract work from Labour Department of Government of Tripura and registration of firm in case of a firm submitting the tender. Only these documents can be asked for at the time of sale of tender. All other documents which are required under the tender will have to be submitted by the party submitting the tender along with its quotation/bid and these have to be evaluated by the authority concerned at the time of evaluation of the quotations/bids/tenders. 9. The apprehension of the State that sale of a tender document will give rise to a presumption that the party satisfies all the conditions of the tender is totally misplaced. The tenders must be evaluated on the basis of the documents annexed with the tenders and if at that stage it is found that the tenderer does not satisfy any of the necessary conditions, the State is at liberty to reject the tender document and may not even consider the financial aspect of the tender, if the tenderer does not fulfill the essential conditions of the tender. 10. With these observations, the writ petition is disposed of. This law has been laid down to clarify the facts in future. Therefore, the Registrar General is directed to send a copy of this Judgment to the Secretary, PWD, Government of Tripura, who shall ensure that this Judgment is followed in letter and spirit in future.