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2015 DIGILAW 1305 (GAU)

Lalhmachhuana Fanai v. State of Mizoram

2015-10-08

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT AND ORDER : Michael Zothankhuma, J. Heard Mr. C. Lalramzauva, senior counsel assisted by Mr. Banjamin Lalthlamuana, counsel for the petitioner. Also heard Ms. Melody L. Pachuau, Government advocate, counsel for the respondent No.1. Also heard Mr. J.C. Lalnunsanga, counsel for the respondent Nos. 2 to 4 (RMSA) and Mr. B. Lalramenga, counsel for the respondent No.5. 2. All these matters are being taken up together and disposed of by a common judgment and order. 3. The respondent Nos. 2 to 4 (RMSA) had floated tender notice for construction of 6 New Secondary Schools vide NIT No. 1 of 2012-13 dated 3.11.2014. The petitioner in all the 6 writ petitions is the same person and he submitted his tenders in response to the NIT for construction of the 6 Secondary Schools along with the respondent No.5 located at different Districts of Mizoram. The respondent No.5 in all the writ petitions are different persons. The bids of the bidders was to be in 2 parts, i.e., the technical bid and the financial bid. 4. The petitioner's counsel submits that after evaluating bids of the tenderers, the State Level Purchase Committee in its meeting dated 3.2.2015 selected the respondent No.5 in all the writ petitions as the successful tenderer. The Office Order dated 10.2.2015 issued by the State Project Director, Mizoram RMSA mission selected the respondent No.5 for construction of the New Schools as listed below : Sl No. Name of Contractor Name of School to be constructed Name of District 1. Zothantluanga, Luangmual Zanlawn Sec.School Kolasib 2. H. Chawngsavunga, Ramhlun 'N' Saikhawthlir Sec. School Mamit 3. Rothuama, Ramhlun 'N' Tualpui Sec. School Champhai 4. Thanchhuma, Chanmari-I, Lunglei Dawn Sec. School Lunglei 5. Vanthangpuia, Dawrpui Ramlaitui Sec. School Lunglei 6. Lalchhuanmawia, College Veng, Aizawl New Jognastry Sec. School Lawngtlai 5. The petitioner's counsel submits that the decision making process in selecting the respondent No.5 was flawed and in violation of clauses 3, 19 and 20 of the Information to Bidders "ITB". The petitioner's counsel submits that the respondent No.5 had submitted documents to the employer after the bids were opened in violation of clause 3 of the ITB. He also submits that the employer was to evaluate the bids of the tenderers by taking into account clauses 19 and 20 of the ITB. The petitioner's counsel submits that the respondent No.5 had submitted documents to the employer after the bids were opened in violation of clause 3 of the ITB. He also submits that the employer was to evaluate the bids of the tenderers by taking into account clauses 19 and 20 of the ITB. The petitioner's counsel submits that clause 20.1 of the ITB requires the employer to award the contract to the bidder whose bid has scored the highest mark in the comparative statement. However, as the comparative statement does not reflect the marks that have been awarded to the various bids by the employer, the award of the contract to the respondent No.5 which is in violation of clause 20 of the ITB should entail cancellation of the award of the contract and a fresh consideration should be made by the State respondent. 6. The petitioner's counsel submits that a conjoint reading of clauses 3 and 4 of the ITB shows that there are essential and ancillary/subsidiary conditions of the tender. Thus, the documents mentioned in clause 4 of the ITB are essential documents/requirements and those not mentioned in clause 4, but mentioned in clause 3 of the ITB are ancillary documents. The petitioner's counsel, however, submits that even the ancillary documents have to be submitted along with the tender and the respondent No.5 could not be allowed to submit any document after opening of the tender. He also submits that even if the petitioners are allowed to submit documents mentioned in clause 3 after opening of the tender, the same could not be taken into account and evaluated by the employer for awarding the contract under clauses 19 and 20 of the ITB. "3. Qualification of the Bidders - 3.1 All bidders shall include the following information and documents with their bids. (a) Copies of original documents (attested) defining the bidder is an eligible contractor (for particular work) of valid registered under Government of Mizoram or Government of India. (b) Experience in commencing the same nature of work with value of works performed for each of the last 5 years certified from the concerned officer not below the rank of Executive Engineer or equivalent (in case of work under Government) and supported by copies of work order. 3.2 Each bidder must produce: (a) An affidavit that the information furnished with the bid documents is correct in all respects. 3.2 Each bidder must produce: (a) An affidavit that the information furnished with the bid documents is correct in all respects. (b) HTPC 3.3 Work methodology 3.4 Bank certificate showing soundness of capital investments with the form given in Part IV 3.5 Original copy of MVAT Form 38. 4. Disqualification 4.1 Absence of anyone of the documents stated on clauses 3.1(a), 3.2(b), 3.5 and 12.1 will be disqualified with the acceptance of the bidders. Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have: (a) made misleading or false representation in the forms, statements, affidavits and attachment, submitted in proof of the qualification requirements, and/or (b) record of poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failures, etc. (c) participated in previous bidding for the same work and had quoted unreasonable high or low bid prices and could not furnish rational justification for it to the employers (d) in quoting the rates, bidder must take reference from the rate indicated in the Mizoram PWD Schedule of Rates, 2013. 19. Examination of Bids and determination of Responsiveness. 19.1 During the detailed evaluation of "Technical Bids" the employer will determine whether each bid (a) meets the eligibility criteria define in clauses 3, (b) has been properly signed, (c) is accompanied by the required securities/EMD and, (d) substantially responsive to the requirement of the bidding documents. During the detailed evaluation of the "Financial Bid", the responsiveness of the bid will be further determined with respect to the remaining bid conditions, i.e., priced bill of quantities, technical specifications and drawings in short the responsiveness eligibility and/or qualification of the bidder shall be evaluated based on: (i) Financial capability of the bidder. (ii) Capability of the bidder to mobilise and deploy the required manpower. (iii) The bidder capability to manage similar nature of work. (iv) The bidder's past performance and experience in executing similar contract work. (v) The bidder past litigation history. (vi) The methodology and schedule proposed for the work. (vii) Any other documents submitted by the bidder to augment the advantage in commencing the work. 19.2 A substantially responsive "Financial Bid" is one, which conforms to all the rates as quoted in the Bill of Quantities. (v) The bidder past litigation history. (vi) The methodology and schedule proposed for the work. (vii) Any other documents submitted by the bidder to augment the advantage in commencing the work. 19.2 A substantially responsive "Financial Bid" is one, which conforms to all the rates as quoted in the Bill of Quantities. 19.3 If a financial bid is not substantially responsive, it will be rejected by the employer, and may not subsequently be made responsive by correction or withdrawal of the non-conforming deviation or reservation. 19.4 Other things being equal, preference will be given to the Consultant personnel with a minimum of Class-VIII level of Mizo language and having experience in working similar work inside the State of Mizoram. 20. Award Criteria. 20.1 The employer will award the contract to the bidder whose bid has been determined to be substantially responsive to the bidding documents and who has scored the highest mark in comparative statement provided that such bidder has been to be eligible in accordance with the provision of clause 2 and qualified in accordance with the provision of clause 3. 20.2 The employer reserves the right to accept or reject any bid, and to cancel the bidding process and reject all bids, at any time prior to the award of contract, without thereby incurring any liability to the affected bidder or any obligation to inform the affected bidder or bidders of the ground for the employer's action. 20.3 The employer will have the right not to award the lowest bidder without announcing any reason behind." 7. The petitioner's counsel submits that the employer has not given any marks to any of the tenderers while evaluating the tenders, thereby violating clauses 19 and 20 of the ITB. The petitioner's counsel, thus, submits that the petitioner having submitted all the documents as required under clause 3 of the ITB, the petitioner should have been selected for the contract as the documents submitted by the respondent No.5 after the opening of the tender could not be allowed to be evaluated by the employer as per clauses 19 and 20 of the ITB. 8. 8. The petitioner's counsel has relied upon the judgment of the Apex Court in Tata Cellular v. Union of India (1994) 6 SCC 651 , Maa Binda Express Carrier and Another v. North East Frontier Railway and Others, (2014) 3 SCC 760 to support his submission that the principle of judicial review would apply to the exercise of contractual powered by Government bodies in order to prevent arbitrariness of favourism. The petitioner's counsel also relied upon the above judgments to state that the Government and its agencies have to act reasonable and fairly at all points of time. The tenderer has an enforceable right and this court has to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest. 9. The petitioner's counsel has also relied upon the Judgment of the Apex Court in Union of India and Others v. Dinesh Engineering Corporation and Another, (2001) 8 SCC 491 , which states as follows : "Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of article 14 of the Constitution." The petitioner's counsel, thus, submits that the impugned Office Order Memo No. D.11 028/2/11-MEMS (RMSA) dated 10.2.2015 and Work Order dated 10.2.2015 accepting the bid of the respondent No.5 should be set aside. The petitioner's counsel also prays that the respondents should re-consider the bids of the tenderers and make the evaluation only on the basis of the documents submitted by the tenderers at the time of the opening of the tenders. 10. Mr. J.C. Lalnunsanga, counsel for the respondent Nos. 2 to 4 (RMSA) submits that the petitioner has challenged the contract works allotted for construction of 6 new Secondary Schools in 6 different Districts by way of the above writ petitions and that it would be impossible for the petitioner to construct all the Schools, even if the petitioner was awarded all the contracts. 11. The counsel for the respondent Nos. 2 to 4 (RMSA) submits that the respondent No.5 in all the cases had submitted the essential documents as required under clause 4 of the ITB and the same was also seen at the time of opening the tender. 11. The counsel for the respondent Nos. 2 to 4 (RMSA) submits that the respondent No.5 in all the cases had submitted the essential documents as required under clause 4 of the ITB and the same was also seen at the time of opening the tender. He, however, submits that the non-essential documents, which are reflected in clause 3 of the ITB was called for by the authorities after the comparative chart had been prepared, but before the tender documents of the tenderers were evaluated by the employer. The counsel for the respondent Nos. 2 to 4 (RMSA) submits that the non-essential documents submitted by the respondent No.5 were also taken into consideration and evaluated by the employer for the purpose of selection of the successful tenderers. The counsel for the respondent Nos. 2 to 4 (RMSA) has submitted that the petitioner had tried to influence the employer processing all bids in violation of clause 17 of the ITB. The counsel for the respondent Nos. 2 to 4 has also submitted that as the bid amounts were all similar, the bids were not evaluated by giving marks. He submits that the respondents have the power to deviate and relax the provisions of the ITB as the petitioner has not been prejudiced or discriminated by the said deviation. 12. The counsel for the respondent Nos. 2 to 4 (RMSA) has also submitted that clause 3.1(b) of the ITB has been violated by the petitioner inasmuch as the work done certificate was to be signed by an officer not below the rank of an Executive Engineer. However, work done certificate submitted by the petitioner was signed by an Assistant Engineer, though in the work done certificate the designation of the Engineer has been shown to be that of Project Engineer. The counsel for the respondent Nos. 2 to 4 (RMSA), thus, submits that the contract could not be allotted to the petitioner due to the above reasons. The counsel for the respondent Nos. The counsel for the respondent Nos. 2 to 4 (RMSA), thus, submits that the contract could not be allotted to the petitioner due to the above reasons. The counsel for the respondent Nos. 2 to 4 (RMSA) has also relied upon the Judgment of the Apex Court in Poddar Steel Corporation v. Ganesh Engineering Works and Others, (1991) 3 SCC 212 which states at para 6 as follows : "As the matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significant. The requirements in a tender notice can be classified into two categories those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases." 13. Mr. J.C. Lalnunsanga, counsel for the respondent Nos. 2 to 4 (RMSA) has also submitted that the petitioner while doing contract work for an amount of Rs.79,61,102.21 for construction of Academic Staff College Guest House in Mizoram University had exceeded the said work order amount by Rs.12,47,522.39. 14. Ms. Melody L. Pachuau, Government advocate, counsel for the respondent No.1 submits that she support the submissions made by the respondent Nos. 2 to 4. 15. Mr. B. Lalramenga, counsel for the respondent No.5 in all the above cases submits that the petitioner has not submitted any additional document besides the documents required under clause 3 of the ITB. The learned counsel submits that the additional document, i.e., the undertaking submitted by the petitioner is only the effect that the petitioner's bid would remain valid for 90 days. The counsel for the respondent No.5 also submits that as all the bid amounts submitted by the tenderers were of the same value, there was no question of the employer giving marks to the various tender in the comparative chart as there could not have been any evaluation of the bid amount. The counsel for the respondent No.5 also submits that as all the bid amounts submitted by the tenderers were of the same value, there was no question of the employer giving marks to the various tender in the comparative chart as there could not have been any evaluation of the bid amount. The counsel for the respondent No.5 also submits that all the bids were evaluated by taking into consideration all documents including the non-essential documents submitted by all the tenderers. 16. The counsel for the respondent No.5 also submits that the petitioner was to have been disqualified by the employer as per clause 4.2 of the ITB in view of the fact that the petitioner had misled the Employer by submitting the work done certificate signed by a Project Engineer, who was in fact an Assistant Engineer and not Executive Engineer as required under 3.1(b) of the ITB. 17. The counsel for the respondent No.5 also submits that clause 19.3 has to be read with clause 20 of the ITB and the contract can be allotted only if the tenderer is qualified in accordance with clause 3 of the ITB. 18. The counsel for the respondent No.5 has also submitted that the respondent Nos. 2 to 4 (RMSA) had by their reply dated 5.8.2015 in pursuance to the query made by the respondent No.5 under the RTI Act, had acknowledged the fact that the respondent No.5 had submitted the non-essential documents as required under clause 3 of the ITB after the tender had been opened. He therefore, submits that there was nothing wrong in the respondent No.5 submitting his documents after the tender was opened and prior to evaluation by the employer. 19. The counsel for the respondent Nos. 2 to 4 (RMSA) has produced the official records pertaining to the allotment of the various contract works. On perusal of the same, I find that the respondent No. 5 in all the cases have submitted the non-essential documents as mentioned in clause 3 of the ITB after the tender papers were opened. 19. The counsel for the respondent Nos. 2 to 4 (RMSA) has produced the official records pertaining to the allotment of the various contract works. On perusal of the same, I find that the respondent No. 5 in all the cases have submitted the non-essential documents as mentioned in clause 3 of the ITB after the tender papers were opened. The question of submission of non-essential documents/requirements has been held by this court in the case of Kirloskar Brothers Ltd. v. State of Tripura and Ors., 2000 (2) GLT 476 to the effect that the subsequent fulfilling of the condition at the subsequent stage is in wider public interest and that there is no overwhelming public interest in favour of quashing the award and contract due to the late submission. 20. Clause 4 of the ITB clearly stipulates what are essential conditions and what are ancillary conditions/requirements. It is not disputed at the Bar that the respondent No. 5 in all the writ petitions have submitted the essential documents/requirements as stipulated in clause 4 of the ITB before the opening of the tenders. Clause 4 of the ITB having clearly held that, absence of any one of the documents stated in clause 3.1(a), 3.2(b), 3.5 and 12.5, the tenderer will be disqualified, implies that non-submission of non-essential documents/requirements will not disqualify the tenderers. The question is as to whether non-essential documents that had been submitted subsequently could be used by the respondents for evaluation. It is the view of this court that if non-essential documents could be submitted subsequent to the opening of the bids, the evaluation of the same has to be done, otherwise, the very purpose of submitting the documents at a later stage has no meaning. The question of submission of documents at a later stage after opening of tender has also been decided by the Apex Court in Glodyne Technoserve Ltd. v. State of Madhya Pradesh and Ors., (2011) 5 SCC 103 in para 47, which is as follows : "47. The submissions made on behalf of the appellant proceeds on the basis that it was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the memorandum of understanding. The appellant had a valid and active ISO 9001:2000 certification which it did not submit along with the bid documents, may be due to inadvertence, but whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids. The decision taken to reject the technical bid of the appellant cannot be said to be perverse or arbitrary. We need not refer to the decisions cited by the learned Attorney General or the appellant in this regard, as the principles enunciated therein are well established." 21. On going through the records, I find that the State respondents have not made any reason or decision as to why the respondent No. 5 should have been allotted the contract work in preference to the other tenderers. The giving of marks as required under clause 20 of the ITB has also not been undertaken by the respondents before allotment of the work. The Hon'ble Supreme Court in Air India Ltd. v. Cochin International Airport Ltd. and Ors., (2000) 2 SCC 617 has held that if some defect is found in the decision making process, the court must exercise its power under article 226 of the Constitution with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. In the present case before me, if we assume that the respondent No. 5 did not submit the non-essential documents at the time of evaluation, then the only competitive bid could be that of the petitioner's only. If that was the case, the State respondents would most probably have to select and award the work only to the petitioner. However, the requirements of public interest, the laws of tender relating to competitive bidding requires that more than one competitive bid should be available so that the State respondents can get the best competitive bid amount while selecting the tenderer. This in my view is in the greater public interest. This court is also of the view that the respondents can deviate from the conditions of the ITB if it does not prejudice or discriminates any of the tenderers, but the same should be supported by reason. 22. In view of the reasons stated above, I direct the respondent Nos. This in my view is in the greater public interest. This court is also of the view that the respondents can deviate from the conditions of the ITB if it does not prejudice or discriminates any of the tenderers, but the same should be supported by reason. 22. In view of the reasons stated above, I direct the respondent Nos. 2 to 4 (RMSA) to undertake a review selection for awarding the contracts mentioned in the above 6 writ petitions by giving reasons while awarding the contracts. It is made clear that the non-essential documents submitted by the respondent No. 5 or the other bidders, after opening the tender, shall also be considered by the authorities, if the same had been submitted prior to the earlier selection process. Consequently, the Office Order dated 10.2.2015 issued by the State Project Director, Mizoram, RMSA Mission, selecting the respondent No. 5 for the above contract works and the impugned work orders dated 10.2.2015 in all the cases are hereby set aside. 23. As the working season is about to start and as the construction of new schools is of great importance and in public interest, the respondent Nos. 2 to 4 (RMSA) shall make the review selection for award of contracts within a period of 1 month from the date of receipt of a copy of this order. 24. Writ petitions are accordingly allowed to the extent indicated above.