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Orissa High Court · body

2015 DIGILAW 91 (ORI)

S. B. S. Industries v. State of Odisha

2015-02-11

A.K.RATH, AMITAVA ROY

body2015
JUDGMENT : Amitava Roy, J. Heard Mr. S. Mishra learned counsel for the petitioners. 2. For the order we propose to pass, it is considered inessential to issue formal notice to the opp. Parties. 3. The pleaded facts for consideration, which are necessary to comprehend the issues raised, are that the petitioner no.1 is a small scale industrial Unit/Manufacturer (for short, hereinafter referred to as the “SSI Unit”) engaged in manufacturing and processing of M.S. Grills, Iron Posts, Steel Gates, etc. represented by petitioner no.2. The opp. Party floated ‘online tenders’ vide e-Procurement Notice No. S & MD-03(W)/2014-15 for execution of fabrication, transportation and works pertaining to erection of gates etc. as referred to therein. 4. The petitioners being interested to participate in the process did download the bid documents and, on scrutiny thereof, they perceived that the prescribed stipulations qua the qualifying criteria as contained therein were not only vague and illegal but also legally uncertain having the potential of meting out unfair and discriminatory treatment to the participants. According to them, those are also repugnant to the circular letter No.11845/M.I. dated 6.7.2000 prescribing the eligibility norms/qualifying criteria against the gate works in the process involved as well as Note (ii) of Clause 5 of Appendix – VIII of the P.W.D. Contractor’s Registration Rules, 1967 of the O.P.W.D. Code Vol. II as amended by the Government of Orissa in Works Department vide Circular No.1946 dated 30.1.2003. In their estimate, the offending stipulations bearing on the qualifying criteria as available in the bid documents more particularly as embodied in Clause 4 (A)(a) of the intimation and instructions to bidders in e-Procurement Notice No.03(W)/2014-15 deny level playing field rendering the proposed process invalid. They seek judicial intervention to annul the process. 5. Mr. Mishra, learned counsel for the petitioners, referring to the letter dated 6.7.2000 of the Chief Engineer (M.I.), Orissa, Bhubaneswar, and the one dated 31.5.2004 of the Chief Engineer, Mechanical, Water Resources, Government of Orissa, Bhubaneswar and Note (ii) of Clause (5) of the Orissa Public Works Department Code (for short, hereinafter referred to as the “Code”) has reiterated the above impugnment. Learned counsel has urged adverting to Annexure-A, the prescribed format to furnish the particulars of the work performances that in absence of any benchmark to uniformly evaluate the suitability of the competing bidders on the touchstone of their performances in other works in terms of the percentage of the value thereof, such a stipulation was vague and unintelligible thus exposing the exercise contemplated to the hazards of favouratism and nepotism, an anathema to the uncompromising imperative of objectivity, transparency and fairness in every participatory exercise as involved herein. 6. We have traversed the pleaded facts and examined the documents in support thereof. We have analyzed the arguments advanced. At the threshold, reference to the documents relied upon by the petitioners in consolidation of the impeachment has to be essentially made. The Chief Engineer (M.I.), Orissa, Bhubaneswar, in his letter dated 6.7.2000 addressed to all the Superintending Engineers under the M.I. organization prescribed the following qualifying criteria in the matter of shutters through open tender. “(2) The Qualifying criteria of the firms should be as follows:- (a) The firm should be registered under S.S.I. unit of the State. (b) The firm should have experience for manufacturing similar type of works and should furnish the experience certificate during last 3 years. (c) The firm should have achieved a minimum annual financial turn over (in all classes of gate fabrication of M.I. works, hydraulic structures) amounting 3 times of the amount for which quotation has been invited. (d) Satisfactorily completed as a prime contractor at least one similar work (gate works for hydraulic structure) valued not less than the amount put to tender. A certificate to this effect should be furnished from the officer not below the rank of E.E.” 7. In the letter dated 31.5.2004 of the Chief Engineer, Mechanical, Water Resources Department, Orissa, Bhubaneswar the following norms were predicated as the qualifying criteria for Gate works tenders: “(i) Satisfactory completion of at least one or two Nos. A certificate to this effect should be furnished from the officer not below the rank of E.E.” 7. In the letter dated 31.5.2004 of the Chief Engineer, Mechanical, Water Resources Department, Orissa, Bhubaneswar the following norms were predicated as the qualifying criteria for Gate works tenders: “(i) Satisfactory completion of at least one or two Nos. of similar type of gate works of suitable/equal value in single Agreement, (ii) the annual financial turnover in respect of Gate works executed along with infrastructure, expertise, and experience of firms and SSI are to be considered for award of work to ensure successful completion of work in time and quality of Gate works, and experience of firms and SSI are to be considered for award of work to ensure successful completion of work in time and quality of Gate works.” 8. Note (ii) of Clause 5 of the Code is also quoted herein below for ready reference: “(ii) Nothing fetters the discretion of the Chief Engineer or any Officer having the power of the Chief Engineer to prescribe certain special conditions while inviting tender for special nature of work, urgent nature of works, works requiring special skill and superior quality irrespective of the value of tender. On such occasion, the concerned Chief Engineer will be the authority to impose special condition indicating requirement of machineries, yearly turnover and execution of similar nature of work for the specified amount at his own discretion irrespective of the value of tender invited.” 9. A conjoint reading of the above texts attests the essentiality as a qualifying criteria, satisfactory completion of at least one similar work. The Chief Engineer or the officer having the power of Chief Engineer can prescribe certain special conditions while inviting tender for special nature of work, works requiring special skill and superior quality irrespective of the value of the tender. 10. Clause 4 (A) (a) of the IFD of e-Procurement Notice No.03 (W)/2014-15 did enjoin as herein below: “(A)(a) The bidder is required to upload the scanned attested copy of authentic work performance record of completed works duly certified by the concerned Executing Authority of Govt./Semi Govt./ Govt. Undertakings in support of such experience as mentioned in Clause 4.A. The bidder shall have to produce the original documents in support of scanned copies and statements upload in the portal for verification on demand after opening of the technical bid. Undertakings in support of such experience as mentioned in Clause 4.A. The bidder shall have to produce the original documents in support of scanned copies and statements upload in the portal for verification on demand after opening of the technical bid. Failure to produce the Original documents within the scheduled time will result in non-consideration of the tender. The work performance certificate should be furnished in the prescribed format as per Annexure-A & B.” 11. The format at Annexure-A is also extracted for ready reference. Sl. No. Name of Work Agreement No. & Amount Date of Commencement Stipulated Date of Completion Financial Year wise amount & Quantity Executed % age of Original Contract Value completed Satisfactorily Balance Amount to be executed Probable Date of Completion Remarks Actual date of completion 1 2 3 4 5 6 7 8 9 10 12. A combined reading of Clause (A)(a) and Annexure-A unequivocally testifies that thereby the required particulars of the work performance of the bidder have been required to be furnished so as to appreciate and gauge their ability and suitability for the execution of the works proposed to be entrusted. Not only, in our comprehension, on a scrutiny of the qualifying criteria prescribed by the letters dated 6.7.2000 and 31.5.2004, Clause 4(A)(a) of the e-Procurement notice is not incompatible therewith, the queries made in Annexure-A are relevant for a comprehensive assessment of suitability of the bidders. Note (ii) of Clause 5 of the Code as well authorizes a Chief Engineer to stipulate certain special conditions warranted by the contingencies as referred to therein. The qualifying criteria engrafted in the letter dated 6.7.2000 does not as such and rightly fetter the Chief Engineer in prescribing such conditions, as construed to be essential having regard to the nature of the work involved, for a competent and desirable execution of the same. In view of the variable features of the works likely to be executed by the competing tenders, mere absence of a specified benchmark for a comparative evaluation of their suitability ipso facto, in our estimate, does not render clause 4(A(a) of the e-procurement notice void, unintelligible and legally uncertain as alleged. In view of the variable features of the works likely to be executed by the competing tenders, mere absence of a specified benchmark for a comparative evaluation of their suitability ipso facto, in our estimate, does not render clause 4(A(a) of the e-procurement notice void, unintelligible and legally uncertain as alleged. Not only the task of evaluating the comparative suitability of the tenders would be undertaken by the experts who are conversant with the minutest details of the works to be executed, such an imputation on the face of the record is speculative and premature. It is a trite law that tender stipulations of a participatory exercise as in the case in hand are within the realm of contract and the author thereof has to be conceded a play in the joints. As has been held by the Apex Court in the case of Tata Cellular v. Union of India, (1994) 6 SCC 651 , the recognized judicial trend is restraint on interference with administrative discretion. The Opp., party being the best judge of the requirement of the works to be executed have the authority and discretion to frame and formulate the covenants to appropriately meet the attendant exigencies. A contrary perception entertained by the prospective bidders cannot per se be the index to judge the validity or invalidity of a tender norm. To reiterate, on a consideration of all the relevant aspects as available from the materials on record, we are of the unhesitant opinion that the challenge as laid is bereft of merit. No interference in exercise of the Court’s power of judicial review is called for. The petition is thus rejected.