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Himachal Pradesh High Court · body

2016 DIGILAW 2691 (HP)

Sandeep Chauhan v. Union of India

2016-12-20

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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Tarlok Singh Chauhan, J. If only the respondents would have taken extra care and not un-necessarily have blown up the issue only on account of lack of coordination amongst themselves and rectified the error without much ado, the filing of the instant petition could have conveniently been avoided and the precious public time of the Court could have been better utilized for the disposal of other cases. 2. The petitioner aggrieved by the cancellation of tender, has filed the instant petition claiming therein the following substantive reliefs:- “(i) Issue a writ of certiorari to quash Annexure P-7 and Annexure P-8 i.e. letter dated 25.01.2016 and corrigendum dated 01.02.2016. (ii) Issue a writ of mandamus directing the Respondent authorities not to implement Annexure P-7 and Annexure P-8 i.e. letter dated 25.01.2016 and corrigendum dated 01.02.2016. (iii) Issue a writ of mandamus directing the respondent authorities to award the work in question to the petitioner.” Certain undisputed facts may be noticed. 3. The work of construction of retaining wall, breast wall, crash barrier, parapet etc. in selected reaches on NH-70 (New NH-03) Jallandhar-Hoshiarpur-Gagret-Mubarikpur-Amb-Kotli-Mandi road from Km. 152/0 to 196/495 in the State of Himachal Pradesh was sanctioned by the Ministry of Road Transport and Highways (for short MORTH) for Rs.1084.40 lacs vide letter dated 19.02.2015. 4. Tender for the said work was called for by the State PWD for the first time on 21.05.2015 and only two bids qua the same were received. One of the bid was by the petitioner, whereas, other bid was by one SAB Industries Limited. These bids were evaluated on 16.07.2015 by the Tender Evaluation Committee. However, the work experience submitted by the SAB Industries Limited did not fulfill the relevant clause of the ‘Detailed Notice Inviting Tender’ (for short ‘DNIT’). Since there was only a single bidder, the same was declared as non-responsive and the Committee decided to cancel the tender process being single tender in the first call in accordance with the Central Vigilance Commissioner (CVC) guidelines. 5. Tender for the aforesaid work was called for the second time by the State PWD on 23.08.2015 and this time six bids were received. The bids so received were evaluated by the Committee on 26.10.2015 and this time four bids were found to be non-responsive and ultimately only the bids of the petitioner and respondent No.5 were left in the fray. The bids so received were evaluated by the Committee on 26.10.2015 and this time four bids were found to be non-responsive and ultimately only the bids of the petitioner and respondent No.5 were left in the fray. During the aforesaid meeting, the Executive Engineer, NH Division, informed the Committee that a complaint had been received from the petitioner regarding concealment of facts with respect to the existing works in hand and commitments of the bids submitted by respondent No.5. He further informed that the veracity of this complaint was examined and was found to be genuine, as such, the Committee decided to declare the bid of respondent No.5 to be non-responsive under Clause 4.8 of DNIT which reads as under:- “Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have: -Made misleading or false representations in the forms, statements and attachments submitted in proof of the qualification requirements…” 6. However, in the meanwhile, the Regional Office of MORTH, Chandigarh i.e. respondent No.2 received various grievances from the bidders found to be non-responsive representing their cases and a complaint against the petitioner was received from respondent No.5. The representations/grievances/complaints were referred to Chief Engineer (NH). As per the complaint submitted by respondent No.5, the petitioner had also concealed the fact regarding existing commitments of ongoing work and list of key personnel. Respondent No.2 in turn requested respondent No.4 to examine the veracity of this complaint before opening the financial bids. Respondent No.4 vide letter dated 21.01.2016 informed respondent No.2 that in order to deliberate upon the complaints of respondent No.5 and petitioner against each other, an internal Committee had been constituted, who in its meeting held on 14.12.2015 had decided that the objection against the petitioner was found to be false in respect of the concealed work details, however, regarding deployment of key personnel and requisite staff, it was decided by the Committee that an undertaking from the Contractor i.e. petitioner be taken before award of the work. It was further informed that the date for opening of financial bid had been fixed on 22.01.2016. 7. It was further informed that the date for opening of financial bid had been fixed on 22.01.2016. 7. Respondent No.2 vide letter dated 25.01.2016 (Annexure P-7) requested respondent No.4 to scrupulously examine the veracity of various complaints and open the financial bids only after ascertaining that the charges levelled against the petitioner are found to be false and unfounded, lest tender process be annulled and short notice rebidding may be done. It also asked respondent No.4 not to proceed further with the opening of the financial bid as it was in disagreement with the procedure adopted and conveyed by respondent No.4 and it was observed that if the State PWD still goes ahead with the opening of the financial bid for the lone bidder i.e. petitioner, no cognizance will be taken by it and the same may be considered as null and void. 8. Respondent No.4 ultimately cancelled the tender process vide corrigendum dated 01.02.2016 (Annexure P-8) and the reason cited therein was “cancelled due to administrative reasons”. 9. The petitioner has assailed the aforesaid action and would contend that the reasons cited in the letters dated 25.01.2016 and 01.02.2016 suffer from irrationality, unreasonableness besides being cryptic, vague and baseless and deserve to be quashed as respondents have failed to comply with the basic rules of natural justice and fair play. 10. The Union of India and the Regional Office of MORTH (respondents No.1 and 2) have filed their joint reply wherein the factual matrix of the case have not been disputed. However, it is claimed that the letter dated 21.01.2016 issued by the respondents was based upon the following:- “(i) Submission of the undertaking by Sh.Sandeep Chauhan petitioner before award of the work that the requisite staff shall be deployed, does not absolve him from the charge of concealment of facts which was the basis for the declaration of Sh.Om Prakash Sharma and Sons as non-responsive by the Committee in its meeting held on 26.10.2015. (ii) There were some contradictions with regard to the way the complaint against Sh.Om Prakash Sharma & sons was dealt by CE(NH). If during the meeting of evaluation committee held on 26.10.2015, CE (NH) confirmed that the veracity of the complaint against Om Prakash Sharma & Sons was examined and found to be genuine, then why the same complaint was again got verified in writing on 13.01.2016.” 11. If during the meeting of evaluation committee held on 26.10.2015, CE (NH) confirmed that the veracity of the complaint against Om Prakash Sharma & Sons was examined and found to be genuine, then why the same complaint was again got verified in writing on 13.01.2016.” 11. It is further claimed that vide letter dated 25.01.2016, respondent No.2 had only expressed its disagreement with the procedure adopted and conveyed by respondent No.4. However, this letter was not meant to convey any sort of decision, judgment or did not even amount to issuing directions to respondent No.4 and was basically meant to ensure fairness in the bidding process and to avoid any procedural lapse. It is further contended that after opening of the financial bids on 23.01.2016, respondent No.4 of its own had cancelled the tender process citing administrative reasons and had not made the letter of respondent No.2 dated 25.01.2016 (Annexure P-7) the basis for cancellation of tender in the tender cancellation order. Therefore, it is not understood as to why letter dated 25.01.2016 (Annexure P-7) has been made the basis of this writ petition. 12. Respondents No.3 and 4 have filed their joint reply wherein they too have not disputed the factual matrix of the case and have specifically claimed that it was the letter issued by respondent No.2 dated 25.01.2016 (Annexure P-7) that eventually led to the cancellation of the tender process. 13. In addition to the aforesaid, it is averred that as per Clause 32 of Section 1 (instructions to bidders) in SBD, the Employer is having power to cancel the bidding process before award of contract and in view of this Clause, the action of the respondents is claimed to be legal and justified. It is also claimed that even if the respondent-department opts to proceed with the tender process, the Government of India i.e. respondents No.1 and 2 will not revalidate the sanction and for want of funds this project/work cannot be executed and, therefore, even on this ground the action of the respondents is claimed to be legal and valid. 14. Respondent No.5 has filed a separate reply and contested the petition mainly on the ground that his bid has wrongly been declared as non-responsive. 14. Respondent No.5 has filed a separate reply and contested the petition mainly on the ground that his bid has wrongly been declared as non-responsive. Whereas, it was the petitioner, who had misrepresented by showing Engineers Sunit Thakur and Ambitabh Thakur as his key personnel knowing fully well that Engineer Sunit Thakur had gone abroad and staying there since long, whereas, Engineer Amitabh Thakur was himself an independent Contractor and would never agree to work with the petitioner and therefore, could not be key technical personnel of the petitioner. Therefore, in such circumstances, even the bid offered by the petitioner ought to have been declared as non-responsive. 15. For completion of records, we may notice that the petitioner on 02.07.2016 filed an application bearing CMP No.6691 of 2016 whereby he sought to place on record certain additional documents. In terms of para-3 of the application, it has been submitted that the petitioner had mentioned Shri Amitabh Thakur and Shri Narender Singh Chauhan as the key personnel against whom an objection was taken that these persons would not be ready and willing to work with the petitioner. However, when these persons were contacted, they have shown their readiness and willingness to work with the petitioner as per the certificates appended with the application as Annexures P-9 and P-10, respectively. Besides that one Shri Gaurav Chauhan is also stated to be ready and willing to work as site Engineer in the event of the bid in question being allotted to the petitioner and in support of such contention a certificate issued by Shri Gaurav Chauhan has been appended as Annexure P-11. 16. Notably, this application came up for consideration before this Court initially on 04.10.2016 and on the said date learned counsel for respondent No.5 stated at the Bar that he is under instructions not to file any response to the application. His statement was taken on record and his right to file response was ordered to be closed. Whereas, other respondents were granted three weeks’ time to file response. Thereafter, when the matter came up for consideration on 25.10.2016, the respondents were granted further two weeks’ time to file response to the application, however, till date no response to the said application has been filed by the respondents. We have heard the learned counsel for the parties and gone through the material placed on record. 17. Thereafter, when the matter came up for consideration on 25.10.2016, the respondents were granted further two weeks’ time to file response to the application, however, till date no response to the said application has been filed by the respondents. We have heard the learned counsel for the parties and gone through the material placed on record. 17. Indubitably, it was the letter issued by respondent No.2 on 25.01.2016 (Annexure P-7) that triggered the entire action and compelled respondents No.3 and 4 to cancel the tender process. 18. Now, as regards respondents No.3 and 4, the only reason given by them for cancelling the tender is the letter dated 25.01.2016 (Annexure P-7) issued by respondent No.2, as would be evident from para-6 of the preliminary submissions which reads thus:- “That the Govt. of India vide its letter No.RW/CH/HP/Misc/2760-62 dated 25-1-2016 communicated that the undertaking sought from petitioner will not absolve the petitioner as to whether he has wrongly mentioned the names of key personnel and concealed facts in his bid. The above communication also stated that if state PWD goes ahead with the opening of financial bid for the aforesaid work no cognizance will be taken by them and the same may be considered null and void. Hence, based upon this direction of respondent No.1 & 2 as well as public interest of road safety and lapse of sanction replying respondent decided to pass the order/corrigendum dated 1-2-2016 whereby the tender dated 23-08-2015 for the said work has been cancelled due to administrative reasons.” 19. Admittedly, the project in question is of respondents No.1 and 2 for which an amount of Rs.1084.40 lacs already stands sanctioned and respondents No.3 and 4 are only the executing agencies. Therefore, once respondent No.2 itself had made the threatening observations in its letter dated 25.01.2016 (Annexure P-7), there was no option available with respondents No.3 and 4 but to cancel the tender process. 20. It is only now that respondents No.1and 2 in their reply have clarified that the letter dated 25.01.2016 had only expressed disagreement with the procedure adopted by respondent No.4 and had not asked him to cancel the tender process. The letter was basically to ensure fairness in the bidding process and to avoid any procedural lapse. Relevant portion of the reply reads thus:- “10. The letter was basically to ensure fairness in the bidding process and to avoid any procedural lapse. Relevant portion of the reply reads thus:- “10. That in the absence of proper response from the Chief Engineer, HP PWD, the Regional Officer, M/oRTH, vide letter No.RW/CH/HP/Misc/2760-62 dated 25.01.2016, expressing disagreement with the procedure adopted, conveyed to the Chief Engineer, HP PWD that if the State PWD goes ahead with the opening of the financial bid for the lone bidder i.e. “the petitioner”, no cognizance will be taken by his office and the same may be considered as null and void. This letter of the Regional Officer, M/oRTH was not meant for any sort of decisive, judgmental or issuing direction to the Chief Engineer, HP PWD. This letter of the Regional Officer, M/oRTH, was basically meant to ensure fairness in the bidding process and to avoid any procedural lapse. A copy of letter No.RW/CH/HP/Misc./2760-62 dated 25.01.2016 of the Regional Officer, MORT&H, Chandigarh is being appended alongwith as Annexure R-2.” 21. It is evidently clear from the replies filed on behalf of the official respondents that there has been a complete lack of coordination and cooperation amongst them, though they were required to function harmoniously and work in unison as a team to achieve the desired target. 22. What is more surprising is that the meeting dated 26.10.2015, amongst others, was attended by Engineer Aditya Prakash, Regional Officer, on behalf of respondent No.2, in which the complaint made by the petitioner against respondent No.5 was found to be genuine and it was then that the bid of respondent No.5 was also declared to be non-responsive on account of concealment of fact and despite the petitioner being lone bidder, it was decided to open the financial bid submitted by him. However, this very Officer i.e. Aditya Prakash vide letter dated 25.01.2016 retracted from what had been decided in the meeting dated 26.10.2015. 23. However, this very Officer i.e. Aditya Prakash vide letter dated 25.01.2016 retracted from what had been decided in the meeting dated 26.10.2015. 23. Apart from the above, it would be noticed that vide letter dated 25.01.2016, Aditya Prakash, the Regional Officer, in para-6 of the letter had clearly and unequivocally threatened that in case respondents No.3 and 4 still choose to go ahead with the opening of the financial bid for the work, no cognizance will be taken by his Office (respondent No.2) and the same be considered as null and void, as would be evident from paras 5 and 6 of the letter which reads thus:- “5. The above mentioned content of letter of CE(NH) has been examined and found to be contradictory as far as dealing with the complaint of Sandeep Chauhan Contractor is concerned as mentioned in the minutes of the Technical Evaluation Committee meeting held on 26.10.2015 that “Executive Engineer NH Division, HP PWD, Hamirpur informed that a complaint was received from Sandeep Chauhan, Govt. Contractor regarding concealment of the facts regarding existing work, in hand/commitments in the bid submitted by Om Prakash Sharma and sons. In this regard, CE (NH), chairman of the committee confirmed that the veracity of the complaint against Om Prakash Sharma & Sons was examined and found to be genuine.” While, now it is stated in aforesaid letter of CE (NH) dated 21.01.2016 that in the meeting of PWD officers taken by CE (NH) on 14.12.2015 it was decided that complaint made by Shri Sandeep Chauhan Contractor was to be verified in writing to confirm the facts so that the financial bid is opened accordingly if found suitable. Thus, apparently during the meeting of Technical Evaluation Committee on 26.10.2015 the genuineness of the complaint of Sandeep Chauhan Contractor was not confirmed in writing. Further, the statement that “regarding key personnel it was decided to take undertaking from the contractor before award of work that the requisite staff shall be deployed as per Clause 4.5.4 of the Standard Bid Document” also not absolve Sandeep Chauhan Contractor as to whether he has wrongly mentioned the names of key personnel or not and concealed facts in his bid. The matter has accordingly been taken up with CE(NH) vide this office letter the same day dated 21.01.2016, again requesting thereby that the financial bid may be opened only after ascertaining that the charges levelled against the lone bidder left i.e. Sandeep Chauhan is false and unfounded, lest the tender process be annulled and short notice rebidding may be done. 6. As may be seen from the above, the issues being raised by this office/ELO Shimla are still to be properly responded by the State PWD w.r.t. various grievances/complaints involved. Under such circumstances, if the State PWD goes ahead with the opening of the financial bid for the work, no cognizance will be taken by this office and the same may be considered as null and void.” 24. However, when reply to the writ petition was filed on behalf of respondents No.1 and 2, an affidavit sworn-in by one Abhilash Kumar, Engineer Liaison Officer, and a complete somersault has taken and it is averred that the letter dated 25.01.2016(Annexure P-7) was basically to ensure fairness in the bidding process and to avoid any procedural lapse and did not amount to a decision or a judgment or even a direction and, therefore, should not have been made the basis of the writ petition. If that was so, then why at the first place the letter dated 25.01.2016? 25. We have no doubt in our mind that the entire fiasco has been created by the official respondents themselves, in particular the respondent No.2 and the same has only resulted in precious time of the Court being wasted. It would have been better if the respondents No. 1 and 2 alongwith respondents No. 3 and 4 would have worked in tandem with a better coordination and thereby avoided such unsavoury mess. 26. Now, adverting to the objection of the respondents including respondent No.5 regarding the technical personnel mentioned by the petitioner in the bid document, according to them, would not be ready and willing to work with the petitioner. We find that this assumption has been clearly belied by the documents placed by the petitioner alongwith CMP No.6691 of 2016 annexed as Annexures P-9 and P-10, respectively. A perusal of these documents, reveal that the named technical personnels have consented to work with the petitioner. 27. We find that this assumption has been clearly belied by the documents placed by the petitioner alongwith CMP No.6691 of 2016 annexed as Annexures P-9 and P-10, respectively. A perusal of these documents, reveal that the named technical personnels have consented to work with the petitioner. 27. As observed earlier, respondent No.5 has not contested this application by giving a statement before this Court on 04.10.2016, whereas, other respondents too have not contested this application despite having been given sufficient time and opportunity. Even otherwise, the question of engaging technical manpower would only arise if the contract is to be awarded in favour of the petitioner and for this purpose an undertaking from him for deployment of key personnel and staff has already been taken. 28. As there is virtually no opposition to the petition, we have no other option but to allow the same. Ordered accordingly. The letter dated 25.01.2016 (Annexure P-7) and corrigendum dated 01.02.2016 (Annexure P-8) are quashed and set aside and the respondents are directed to award the work in question to the petitioner within two weeks from today. 29. The petition is allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.