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2014 DIGILAW 692 (ORI)

C. P. Mohanty & Associates v. State of Odisha

2014-10-21

AKSHAYA KUMAR RATH, AMITAVA ROY

body2014
JUDGMENT Amitava Roy, C.J. 1. The decision to reevaluate the technical bid of the opposite party No. 3 after adjudging the same to be non-responsive initially is the subject matter of impugnment in the instant petition. We have heard Mr. G.M. Rath, learned counsel for the petitioner, Mr. J.P. Patnaik, learned Addl. Government Advocate on behalf of the State-opposite party and Mr. R. Roy, learned counsel for opposite party No. 3. 2. Trimming down the inessentials, the pleaded facts indispensable for the present adjudication are that the Government of Odisha, Works Department through the Chief Engineer (DPI & Roads) Odisha, Nirman Soudha, Unit-V, Bhubaneswar (opposite party No. 2) did invite bids vide Bid Identification No. CE-DPI & R-18/2013-14 dated 06.07.2013 through e-procurement Portal for execution of the work of "Construction of Bridge over Dhanua Nallah at 3rd KM on Satyabhampur-Bhingarpur Road under State Plan for the year 2013-14". The bidding process was proclaimed to be comprised of two parts i.e. technical bid and price bid. In response to that notice, the petitioner and opposite party No. 3 offered their bids, when after the Technical Evaluation Committee on 02.09.2013 disqualified the technical bid of the opposite party No. 3 for not fulfilling the norm of work experience as required under Clause 14(ii) of the Detailed Tender Call Notice (for short, hereinafter referred to as 'the DTCN'). Subsequent thereto, the financial bid of the petitioner was opened on 21.09.2013 and it was intimated to attend the office of the opposite party No. 2 for negotiation of the rate offered by it, which in fact followed. Consequently, the petitioner's bid was adjudged to be the lowest. When the matter stood thus, the opposite party No. 3 approached this Court in W.P.(C) No. 23618 of 2013 challenging the rejection of his technical bid and by interim order dated 4.11.2013, this Court directed that further proceedings in the process be kept in abeyance. The petitioner, on receiving the notice/writ petition, entered appearance and filed an application for vacation of the ex-parte interim order contending, inter alia, that the opposite party No. 3 had suppressed, more particularly, the fact that its technical bid had been rejected as it was held to be disqualified for not fulfilling the essential condition of work experience as contained in the DTCN. The writ petition, however, was eventually dismissed as withdrawn on a prayer of the opposite party No. 3 on 24.04.2014. On enquiries being made, according to the petitioner, it came to learn that in between, during the pendency of the writ petition, the opposite party No. 2 had unilaterally recalled the decision of the Tender Evaluation Committee rejecting the technical bid of the opposite party No. 3 as non-responsive and had adjudged it to be qualified for further participation in the process. The petitioner has averred that the withdrawal of the writ petition of the opposite party No. 3 thus was, as a consequence of this development stemming from a connivance between the opposite party No. 2 and 3. The challenge has been laid in this backdrop. 3. The opposite party Nos. 1 & 2 in their counter while admitting that the Tender Evaluation Committee initially had disqualified the technical bid of the opposite party No. 3 on the ground of lack of 'bridge works experience' as per Clause 14(ii) of the DTCN, have pleaded that subsequent thereto the Tender Committee as designated in paragraph 6.3.15 of the O.P.W.D. Code Volume-I, re-examined the decision so taken and concluded on 27.09.2013 that the said bid was qualified on the following terms: (i) Clause 14(ii) of the DTCN was not a mandatory requirement in view of the stipulation in Clause 122 of the said notice. (ii) The work involved has a major role in facilitating pilgrimage to Lord Jagannath, Puri in the coming Nabakalebara of 2015 and thus warranted time bound completion. (iii) The issue was resolved within the frame work of the tender conditions bearing in mind also the State Litigation Policy. The answering opposite party have stoutly denied the allegation of collusion and clandestine and surreptitious review of the earlier decision qua the technical bid of the opposite party No. 3. 4. Mr. Rath emphatically argued that the Tender Evaluation Committee once, having on a conscious scrutiny of the tender conditions, held that the technical bid of the opposite party No. 3 was non-responsive, it was not open to it to reevaluate the same and declare it to be valid. 4. Mr. Rath emphatically argued that the Tender Evaluation Committee once, having on a conscious scrutiny of the tender conditions, held that the technical bid of the opposite party No. 3 was non-responsive, it was not open to it to reevaluate the same and declare it to be valid. Referring to Clause 8.5.5 in particular of the 'Procedure to participate in Online biding e-procurement' (for short, hereinafter referred to as 'the Norms of Procedure'), the learned counsel has insisted that even assuming that such a process for reviewing its earlier decision is permissible, it was incumbent on the authority to issue notice to the petitioner, the other contender, and as the same was not done, the decision is in violation of tender norms as well as principles of natural justice. Contending that in any view of the matter, such a review of the decision disqualifying the technical bid of the opposite party No. 3 during pendency of the his writ petition was impermissible in law, Mr. Rath insisted that the 'bridge work experience' was an essential tender condition having regard to the nature of the work to be executed and thus as the opposite party No. 3 admittedly lacked in the same, the impugned decision is patently illegal, arbitrary and prompted by extraneous consideration. He urged that as the decision lacks in transparency and fairness, the same is liable to be adjudged invalid and ought to be quashed. 5. Mr. Roy has maintained that it being apparent on the face of Clause 122 of the DTCN, that the 'bridge work experience' was not an essential condition of eligibility, the initial decision disqualifying the technical bid of the opposite party No. 3 was obviously erroneous and thus in order to correct the apparent mistake and enlarge the field of competition, the impugned decision was validly taken. While contending that there is no bar in the tender stipulation to review a decision as has been done present case, Mr. Roy has also argued that no mandate of prior notice to other participating tenderers as asserted has been prescribed. As the opposite party No. 3 is otherwise a reputed Special Class/Super Class contractor, the decision to validate his technical bid would ensure enhanced competitiveness in the bidding process and judged on that touchstone as well, the impugned decision is unmistakably valid and in public interest. 6. As the opposite party No. 3 is otherwise a reputed Special Class/Super Class contractor, the decision to validate his technical bid would ensure enhanced competitiveness in the bidding process and judged on that touchstone as well, the impugned decision is unmistakably valid and in public interest. 6. We have examined the pleaded facts, the documents on record and also the rival submissions. A plain perusal of the tender notice dated 6.7.2013 would reveal that thereby the participation of Special Class/Super Class contractors registered with the State Governments and contractors of equivalent Grade/Class registered with Central Government/MES/Railways etc. for execution of civil works was solicited. There is no material on record to show that the opposite party No. 3 does not meet the said requirement. Clause 8.5.5. of the norms of Procedure and Clauses 14 and 122 of the DTCN are extracted herein below for ready reference. "8.5.5. Immediately, on receipt of these clarifications, the Evaluating Officers, predefined in the system for the bid, will finalize the list of responsive bidders. They will log on to the site with their DSC and record their comments on the Technical evaluation page in the system. The Officer Inviting the Bid if also the accepting authority, shall log on to the system with his digital signature and check the technical evaluation. He can either accept or pass on to the evaluating officers for re-evaluation. Upon acceptance of technical evaluation by the Accepting authority in the system, the system shall automatically generate letter to all the responsive bidders and the system shall forward the letter to all the responsive bidder that their technical bid has been evaluated responsive with respect to the data/information furnished by him and the letter shall also intimate him the date & time of opening of financial bid. The system shall also inform the non-responsive bidders in their e-mail ID that their bid has been found non-responsive." xxx xxx xxx xxx "14. (i) Each bidder is to submit along with bid a note regarding his experience on construction of Bridge Works. The system shall also inform the non-responsive bidders in their e-mail ID that their bid has been found non-responsive." xxx xxx xxx xxx "14. (i) Each bidder is to submit along with bid a note regarding his experience on construction of Bridge Works. (a) Name of the Bridge- (b) Estimated Cost- (c) Total length of Span:- (d) Major Items of work:- (e) Quantity of items: - i) As per Agreement:- ii) As per execution:- (f) Date of Commencement:- (g) Stipulated date of Completion:- (h) Actual date of completion:- (i) Other details if any.:- (ii) The prospective applicant in its name should furnish list of similar nature of work satisfactorily completed in Schedule- D1 and list of works in progress in Schedule- D2. (Similar nature of work means- Bridge works with well foundation) xxx xxx xxx xxx 122. ELIGIBILITY CRITERIA: To be eligible for qualification, applicants shall furnish the followings. a) Required E.M.D. (Bid Security) as per the clause No. 06 and Cost of Bid document as per Clause No. 04. b) Scanned Copy of valid Registration Certificate, Valid VAT clearance certificate, PAN card along with the tender documents as per Clause No. 07. c) Information regarding (i) Evidence of ownership of principal machineries/equipments in Schedule- C as per Annexure-I of Schedule- C (ii) Annexure- III of Schedule-C & (iii) Annexure- IV of Schedule- C if required as per Clause No. 10. scanned copy of all documents are to be furnished with the bid. d) Information in scanned copy regarding current litigation, debarring/expelling of the applicant or abandonment of work by the applicant in schedule "E' and affidavit to that effect including authentication of tender documents and Bank guarantee in schedule "F" as per clause 11. e) Submission of original bid security and tender paper cost as prescribed in the relevant clause of DTCN after last date and time of submission of bid but before the stipulated date & time for opening of the bid. f) Submission of the required information on his/their available bid capacity at the expected time of bidding as per Clause 12." 7. Reading between the lines, Clause 8.5.5, clearly conceptualize two different authorities for technical evaluation of the bids and the acceptance thereof on the completion of the process of that segment. f) Submission of the required information on his/their available bid capacity at the expected time of bidding as per Clause 12." 7. Reading between the lines, Clause 8.5.5, clearly conceptualize two different authorities for technical evaluation of the bids and the acceptance thereof on the completion of the process of that segment. There is no mandate for issuance of notice to the competing bidders in case of re-evaluation of a technical bid, if considered necessary by the accepting authority. The learned counsel for the petitioner has not been able to draw our attention to any stipulation in the tender norms essentially requiring issuance of such notice before conducting re-evaluation. In that view of the matter, the plea against fairness in action does not weigh with us. A conjoint reading of Clauses 14 and 122 of the DTCN read with the annexures to Schedule-C & D thereto would make it abundantly clear that 'bridge work experience' was not construed to be an essential condition of eligibility so much so that a bidder lacking in the same would per se stand disqualified qua its/his technical bid. Noticeably the requirements cataloged as eligibility criteria in Clause 122 do not include Schedule D2 containing the details of work experience. In this view of the matter, the plea of the opposite party Nos. 1 and 2 that the 'bridge work experience' in terms of Clause 122 of the tender norms was not an essential criteria thus commends for acceptance. 8. The reason for holding the opposite party No. 3 to be disqualified, as is available from the proceedings of the Technical Evaluation Committee meeting held on 2.9.2013 is extracted below: Sl.No. Name of the Bidder Findings Remarks 1. M/s. C.P. Mohanty & Associates. Special Class Contractor. The Bidder has fulfilled al the eligibility criteria as per clauses of DTCN Qualified. 2 Shreenivas Pradhan Special Class Contractor. The Bidder has fulfilled al the eligibility criteria except experience in bridge work and thus liable for rejection as per Clause 14(ii) of DTCN Disqualified. It would be patent from the above extract that the opposite party No. 3 was disqualified as, according to Tender Evaluation Committee, experience in bridge work as contemplated in Clause 14(ii) of the DTCN was an essential eligibility criteria and he lacked in the same. 9. It would be patent from the above extract that the opposite party No. 3 was disqualified as, according to Tender Evaluation Committee, experience in bridge work as contemplated in Clause 14(ii) of the DTCN was an essential eligibility criteria and he lacked in the same. 9. This deduction of the Tender Evaluation Committee is per-se in derogation of Clause 122 of the DTCN and thus was erroneous on the face of the records. The grounds set out in the counter of the opposite party Nos. 1 & 2 for review of this decision and not refuted by the petitioner thus have substance. The rejection of the technical bid of the opposite party No. 3, in our comprehension, having regard to the frame work of the tender conditions in the instant case by construing the bridge work experience to be an essential norm of eligibility was impermissible. In any view of the matter, the decision to qualify the opposite party No. 3 to facilitate his participation in the process has been taken by a body competent to do so and would only to secure a broader field of competition and thus would auger well in public interest. 10. On a cumulative consideration of the above aspects, we are thus of the view that the instant challenge does not warrant any interference as sought for and the writ petition is thus rejected. We make it clear that by the instant adjudication we have not expressed any opinion with regard to comparative suitability of the tenderers involved and it would be wholly within the domain of the opposite party to select the best, strictly on the basis of the tender stipulations and provisions of law applicable. This determination, we add has been in the facts and circumstances of the case and in the frame work of the terms and conditions so designed to govern the process involved.