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2016 DIGILAW 584 (GAU)

Macrocosm Builders v. State of Assam

2016-06-23

N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. In this application under Article 226 of the Constitution of India, M/s Macrocosm Builders, a partnership firm and its Managing Partner have challenged the decision making process in awarding contract of "Rehabilitation of Bhawanipur Barpeta Road, (SH-8) (CH - 0.00 KM to CH - 18.06 KM) in Barpeta District under ASRP package No. ASRP/REH/NCB/15" and the preliminary work order made on 26.02.2016 in favour of M/s Anupam Nirman Private Limited, the respondent No. 4 herein. 2. Chief Engineer, PWD (ARIASP & RIDF), Assam issued an E-procurement notice/Invitation for Bids (IFB) on 13.01.2016 for as many as 5 works. It includes the aforesaid contract of rehabilitation of Bhawanipur Barpeta Road. The approximate value of the work was quoted at Rs. 33,95,00,000/- and period of completion was fixed at 18 months. The IFB required payment of Bid Security of Rs. 6.8 Million. Pursuant to the aforesaid IFB, writ petitioner herein submitted tender annexing required documents and so did the respondent No. 4 along with others. The official respondents thereafter by notification dated 25.02.2016 recommended the name of the respondent No. 4 for awarding the contract. In the aforesaid notification dated 25.02.2016 one M/s P.K. & Co. was shown to be the lowest bidder and the present writ petitioner was shown as the second lowest bidder but as the contract was recommended for awarding in favour of M/s Anupam Nirman Pvt. Ltd., the respondent No. 4 herein which is only the third lowest bidder, the present writ petitioner has approached this court by filing this writ petition and challenging the recommendation as well as preliminary work order dated 26.02.2016. Both the notifications dated 25.02.2016 and 26.02.2016 are annexed to the writ petition. When the writ petition was moved on 08.03.2016, the respondent No. 4 had already appeared by filing caveat and it was pointed out to the Court at the time of motion hearing that the work had already been started. In that view of the matter, this court was of the view that it is not a fit case for granting any interim order. Be that as it may, the official respondents as well as private respondent No. 4 submitted their affidavits-in-opposition. In that view of the matter, this court was of the view that it is not a fit case for granting any interim order. Be that as it may, the official respondents as well as private respondent No. 4 submitted their affidavits-in-opposition. By filing the affidavit-in-opposition, the official respondents disclosed that writ petition was found to be disqualified in terms of Clause 4.5A(c) of the terms of the contract and accordingly though he was the second lowest bidder yet he could not be recommended for settlement of the contract. Same was the case for the lowest bidder who was found disqualified under Clause 4.5 A(a). The first lowest bidder did not challenge the decision of the Government but it is the second lowest bidder, who as the present writ petitioner, has come to this court asking for lifting the veil to find out as to whether there was arbitrariness on the part of the official respondents in distribution of State largesse. Once it was disclosed in the affidavit-in-opposition that the writ petitioner was ineligible in terms of Clause 4.5A(c), the writ petitioner filed an additional affidavit and thereby challenged the very ground quoted in the affidavit-in-opposition filed by the official respondents without, however, amending the writ petition. 3. In the additional affidavit, the writ petitioner has annexed the Bid Evaluation Report prepared by the Bid Evaluation Committee and made reference to Clause 4.5 thereof. According to the writ petitioner, the official respondents took into consideration performance of the writ petitioner in only one year forgetting that as per the relevant clause of the Bid document if a contractor is found to be eligible in any of the 5 preceding years in that event, he becomes eligible for settlement of contract. 4. I have heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. SK Medhi for the petitioners, Mr. K.N. Choudhury, learned senior counsel assisted by Mr. G. Rahul for the official respondents and Mr. D. Das, learned senior counsel assisted by Mr. R. Sensua. I have also heard Mr. G. Sarma, learned Government Advocate on behalf of the State of Assam (respondent No. 1). 5. Mr. M.K. Choudhury, learned senior counsel, would argue that the estimated value of the contract is Rs. 339.95 Million as revealed in the third item of the IFB. The Bid capacity of the writ petitioner has been assessed by the Evaluation Committee at Rs. G. Sarma, learned Government Advocate on behalf of the State of Assam (respondent No. 1). 5. Mr. M.K. Choudhury, learned senior counsel, would argue that the estimated value of the contract is Rs. 339.95 Million as revealed in the third item of the IFB. The Bid capacity of the writ petitioner has been assessed by the Evaluation Committee at Rs. 804.77 Million. But even thereafter the writ petitioner has been held to be disqualified under Clause 4.5A(c). Drawing attention of the Court to item No. 3 under the Clause 4.5A, Mr. M.K. Choudhury would argue that what is required under the Bid document is only accomplishment of required Earth work in excavation and Granular Sub Base in any one year of the preceding 5 years. While the official respondents took into consideration the performance of the petitioner for the FY 2013-14, they did not take into consideration the performance of the writ petitioner in other years. By drawing attention of the Court to Annexure-VII of the additional affidavit, Mr. M.K. Choudhury would argue that the writ petitioner was eligible in terms of Clause 4.5A(c) in the FY 2010-11 and 2011-12. However, he was ineligible in terms of Earthwork and Granular Sub Base in FY 2012-13, 2013-14 and 2014-15. Since the Bid document shows that if a candidate is eligible in any one of the 5 years preceding the year of reception of the Bids in that event, the writ petitioner was very much eligible on two consecutive years, namely, FY 2010-11 and 2011-12. The official respondents focused their attention only FY 2013-14 in which year the writ petitioner was found to be ineligible and thereupon held it disqualified. Had the official respondents taken into consideration the performance of the writ petitioner in the FY 2010-11 and 2011-12 in that event, the writ petitioner would have been qualified and consequently being the second lowest bidder, he would have been settled with the contract. Such evaluation on the part of the official respondents amounts to error in the decision making process warranting interference by this court by way of judicial review, Mr. M.K. Choudhury argued. 6. Mr. K.N. Choudhury, learned senior counsel argues, per contra, that the writ petitioner has been found to be disqualified in all the five preceding financial years from the year of reception of Bids. Calling attention of the Court again to the Clause 4.5A(c), Mr. M.K. Choudhury argued. 6. Mr. K.N. Choudhury, learned senior counsel argues, per contra, that the writ petitioner has been found to be disqualified in all the five preceding financial years from the year of reception of Bids. Calling attention of the Court again to the Clause 4.5A(c), Mr. K.N. Choudhury, learned senior counsel would argue that a candidate is not only required to be qualified in earth work and granular sub-base but he has also to qualify himself in Bituminous work with DBM, BM, SDBC & BC work. In the year 2010-11 and 2011-12 the writ petitioner was eligible in earth work in excavation, embankment and Granular Sub-Base but he was disqualified in third item i.e. Bituminous work with DBM, BM, SDBC and BC work. In course of argument, he has produced a chart in terms of the contents of the Annexure-VIII to the writ petition and the tender document of the writ petitioner to show that writ petitioner is ineligible in all the five years preceding the year of receipt of the Bids. The said chart is quoted below for ready reference:- As per ITB clause 4.5A(c) of the bidding document: To qualify for award of the contract each bidder in its name should have in the last five years. i.e. 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, executed in any one year, the following minimum quantities of work Work Executed by the Bidder M/s Macrocosm Builders in last 5 years Sl. No. Description of work Minimum Quantities required Work Executed by the bidder M/s Macrocosm Builders in last 5 years 2010-2011 2011-2012 2012-2013 2013-2014 2014-2015 1 Earth work in Excavation, embankment & sub-grade 45000 Cum 574301.7 513748.23 230342.95 41758 NA 2 Granular Sub-Base, WMM/WBM 12000 Cum 33396.85 33237.59 6902.18 1617.13 NA 3 Bituminious work with DBM, BM, SDBC & BC work 1700 Cum NIL NIL NIL 8227.56 NA Note:- The Bidder - M/s Macrocosm Builders submitted in its bid information for execution of the quantities of work against each item mentioned in the above table under "Description of Work" in the last five years by the bidder. As per the said information the bidder executed all the items only in the year 2013-14. The bidder executed only two items out of the three items in 2010-11, 2011-12, 2012-13. As per the said information the bidder executed all the items only in the year 2013-14. The bidder executed only two items out of the three items in 2010-11, 2011-12, 2012-13. Therefore, for evaluation of the bid was done by taking into account the information submitted for the year 2013-14 and the same was examined to check if the bidder satisfies the ITB clause 4.5(A)(c) of the Bidding document. Upon consideration of the bid with the documents submitted by the bidder, it was found that the bidder failed to satisfy the criteria as Prime Contractor. 7. Having pointed out in course of his argument by referring to the Bid document, the learned senior counsel for the PWD further shows that in the year 2013-14, the writ petitioner claimed to have made earth work of 62,244.625 cum but admittedly in Annexure-VIII Divisional Head CEP Westinghouse Saxby Farmer Ltd. Kolkata, WB has been shown to be the employer. According to Mr. K.N. Choudhury, the writ petitioner was not the prime contractor in the aforesaid work. The Westinghouse Saxby Farmer Ltd. Kolkata was awarded with the contract and the writ petitioner might have worked merely as the sub-contractor and this is evident from Page 41 of the tender document submitted by the writ petitioner. It was mentioned in the said letter that the writ petitioner was a mere associate whereas Westinghouse Saxby Farmer Ltd. was the prime contractor. So the writ petitioner was not entitled to make mention of 62,244.625 earth work as his performance in the year 2013-14 and if this amount is deducted from the total quantity of earth work measuring 1,04,002.635 in that event, it comes down to 41,758 whereas the eligibility bench mark in earth work excavation and embankment is 45,300 cum. So the writ petitioner was not eligible in the FY 2013-14 as claimed by him. Similarly, in the year 2010-11 the writ petitioner was eligible in terms of earth work and excavation and Granular Sub Base but he did not have eligibility in terms of item No. 3 i.e. Bituminous work with DBM, BM, SDBC and BC work. Same is the condition in 2011-12. In 2012-13, the writ petitioner was neither qualified in terms of earth work or in terms of Granular Sub Base but also in Bituminous work. Same is the condition in 2011-12. In 2012-13, the writ petitioner was neither qualified in terms of earth work or in terms of Granular Sub Base but also in Bituminous work. In the year 2013-14 he was ineligible in terms of earth work as well as Granular Sub Base but in that year he was qualified in terms of Bituminous work. Thus, taking all the three items of Clause 4.5(A)(c), the writ petitioner was not qualified for any of the five years preceding the year of receipt of the Bids. With these submissions, Mr. KN Choudhury claimed that the official respondents did not commit any error either in taking the decision or in the process of making the decision that the writ petitioner was disqualified though he was the second lowest bidder. There being no error in the decision making process and/or in the decision, there is no scope for judicial review in the aforesaid administrative action and consequently the writ petition is liable to be dismissed, he argued. 8. Mr. D. Das, learned senior counsel assisted by Mr. R. Sensua, strenuously urged that immediately after being allotted with the work, he has made huge investment of men and labour and has already performed a substantial part of the contract. He is qualified in terms of IFB and being the third highest bidder he has been rightly settled with the contract by the official respondents. He submits that he has capacity of completion of the work in terms of the pending works at his hand and so there is no reason for interfering with the decision of the official respondents. Mr. Das argues that the petitioner itself being ineligible in terms of IFB, the writ petition is devoid of merit and it is accordingly liable to be dismissed. 9. Having heard the learned senior counsel for all the three parties and Mr. G. Sarma, learned Government Advocate and on perusal of the materials available on record, this court finds that the Bid document contains various eligibility criteria. Clause 4.5(A)(c) provides that to qualify for awarding of the contract each bidder in its name should have last five years i.e. Financial years 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15 some prescribed quantum of works. G. Sarma, learned Government Advocate and on perusal of the materials available on record, this court finds that the Bid document contains various eligibility criteria. Clause 4.5(A)(c) provides that to qualify for awarding of the contract each bidder in its name should have last five years i.e. Financial years 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15 some prescribed quantum of works. In Clause 4.5(A)(c) it is provided that to become eligible, a contractor ought to have completed earth work in excavation, embankment and sub-grades for Road constructions to the extent of at least 45,300 Cum, Granular Sub Base with WMM/ WBM to the extent of 12,000 Cum and Bituminous work with DBM, BM, SDBC and BC work to the extent of 1700 Cum. Clause 4.5 (A) is quoted below for ready reference. "4.5 A. To qualify for award of the contract, each bidder in its name should have in the last five years i.e. 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15 (a) achieved, in at least two financial years, a minimum annual financial turnover in each year (in all classes of civil engineering construction works only) of Rs. 340 million; (b) satisfactorily completed (not less than 90% of contract value), as a prime contractor, (or as subcontractor duly certified by the employer/main contractor) at least on similar work of value not less than Rs. 204 million as indicated in Contract date 1.1; (c) executed in any one year, the following minimum quantities of work: i. Earthwork in excavation, embankment & sub-grades for Road constructions 45300 Cum ii. Granular Sub Base, WMM/WBM 12000 Cum iii. Bituminous work with DBM, BM, SDBC & BC work 1700 Cum 10. The bid document also contains qualification information at Page 27. Clause 1.3.2 of the qualification information available at Page 27 of the Bid document produced by the respondents at the time of hearing, shows that the quantities of work executed by the contractor has to be as prime contractor and also in the same name and style in last five years immediately preceding the financial year in which Bids are received. Clause 1.3.2 of this document is that way relevant for the purpose of the present writ petition and hence it is also quoted below for ready reference:- "1.3.2 Quantities of work executed as prime contractor (in the same name and style) in the last five years: Year Name of the work Name of the Employer Quantity of work performed (cum) @ Earthwork in excavation, embankment & sub-grade for road construction Granular Sub-Base, WMM Bituminous work with DBM, BM, SDBC & BC work Reinforced Cement Concrete (RCC) above M 20 grade Remarks* (indicate contract Ref) 2014-2015 2013-2014 2012-2013 2011-2012 2010-2011 11. Coming to the performance of the writ petitioner in the preceding five years as required under the aforesaid clause of the IFB it appears that in the FY 2010-11 the writ petitioner had performed earthwork to the extent of 574301.7 Cum. He performed Granular Sub Base in that particular year to the extent of 33396.847 Cum but no Bituminous work with DBM, BM, SDBC and BC work. Page 37 of the additional affidavit, the performance of the contractor in this head has been shown to be 0.000. Thus, if all the three items of Clause 4.5(A)(c) are considered, writ petitioner is found deficient in the third item, namely, Bituminous work. In the next financial year, i.e., FY 2011-12, the writ petitioner claimed to have completed 7,30,352.107 Cum of earthwork which includes two items at Sl. No. 1 with Divisional Head CEP of Westinghouse Saxby Farmer Ltd. Kolkata. Even if this work is excluded from consideration, the writ petitioner successfully completed the bench mark of earth work in 2011-12. He completed Granular Sub Base work to extent of 37,540 in that year and so he had performed the bench mark in regard to granular sub base. But coming to the third item i.e. Bituminous work, he did not perform any work in that financial year as revealed from the entry made in that column as 0.000. The writ petitioner was ineligible in the FY 2011-12. In the FY 2012-13, the writ petitioner had completed total of 4,46,946.831 Cum of earthwork which included 2,16,603.880 earthwork along with Westinghouse Saxby Farmer Ltd., Kolkata. This includes 2,16,603.880 cum of earthwork jointly with Divisional Head CEP of Westinghouse Saxby Farmer Ltd. If this amount is deducted even then he performs the bench mark. In the FY 2012-13, the writ petitioner had completed total of 4,46,946.831 Cum of earthwork which included 2,16,603.880 earthwork along with Westinghouse Saxby Farmer Ltd., Kolkata. This includes 2,16,603.880 cum of earthwork jointly with Divisional Head CEP of Westinghouse Saxby Farmer Ltd. If this amount is deducted even then he performs the bench mark. In Granular Sub Base work, he having performed only 6,902.179 in this year he is disqualified in so far as Granular Sub Base as well as Bituminous work where his performance is 0.000. So, in the FY 2012-13, the writ petitioner was ineligible. In the FY 2013-14, the writ petitioner claimed to have performed 1,04,000.635 cum of earth work but it includes joint work with Divisional Head CEP of Westinghouse Saxby Farmer Ltd. to the extent of 62,244.625. It appears from Page 41 of the tender document of the writ petitioner produced in original by the respondents in course of hearing, that the writ petitioner was named as Associate in the said work whereas certificate has been given by Divisional Head CEP of Westinghouse Saxby Farmer Ltd. The writ petitioner having been described as Associate in its own document submitted along with the tender papers, he cannot be said to have been the prime contractor as required under Clause 1.3.2 of the Qualification Information of the Bid document, the original of which has been furnished by the respondents at the time of hearing. In that view of the matter, the amount of earthwork to the extent of 62,244.625 performed by the writ petitioner in the year 2013-14 done as an associate of Divisional Head CEP of Westinghouse Saxby Farmer Ltd. cannot be considered. Consequently, the aforesaid work has to be deducted from the total as shown by the petitioner. If that is deducted, it comes to 41758 cum which is below the bench mark of 45300 cum. In that view of the matter, the writ petitioner was ineligible in the year 2013-14. In the FY 2014-15, admittedly the writ petitioner did not have required performance and so even if the document of the writ petitioner is considered which is available at Annexure-VIII of the additional affidavit along with the Bid documents and the tender document, it cannot be said that the finding of the Bid Evaluation Committee in so far as the ineligibility of the writ petitioner is perverse. 12. 12. The basic case of the writ petitioner is that it being eligible in terms of the tender notice the official respondents committed error in eliminating it from the fray. But once, it is found on scrutiny on perusal of original tender document of the writ petition, that ground of its such elimination is not perverse, remains to be decided in the writ petition. When the writ petition itself is found to be ineligible, it cannot have a locus standi to maintain the writ petition. Accordingly, writ petition stands dismissed. The writ petitioner has failed to point out any irregularity in the decision making process and/or any other infirmity.