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2016 DIGILAW 955 (ORI)

Santosh Kumar Paikray v. State of Odisha

2016-10-19

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. The petitioner, who is a Class-A registered Public Works Department Contractor, having Registration No.9539 since the year 2012-13, has filed this application seeking to quash the Technical Bid Evaluation Summary under Annexure-4 and the consequential Financial Bid Opening Summary under Annexure-5 in respect of tender ID No. 2015_PHEO_22637_1 issued by the Superintending Engineer, P.H. Circle, Bhubaneswar and further seeks for direction for fresh evaluation of the Bid taking into account the materials submitted by the petitioner. 2. The facts of the case, in a nutshell, are that the Superintending Engineer, P.H. Circle, Bhubaneswar of the Government of Odisha floated Notice Inviting Tender (NIT) for the work “Interconnection of OGRs in IIT Campus, Bhubaneswar at Arugul” by National Competitive Bidding through e-Procurement vide Identification No. SEPHBBSR-22/2014-15 dated 25.03.2015 in Annexure-1. The said notice was uploaded in the website of the concerned Department bearing tender ID No.2015_PHEO_22637_1 and the estimated cost of the work was quoted to be Rs.1,03,82,000/-. Pursuant to such NIT, the petitioner submitted his tender through electronic process by uploading the required documents along with the application, quoting his price at the rate of (-) 12.37% of the estimated value by complying all the terms and conditions mentioned therein. The petitioner also submitted the necessary documents along with copies for the renewal of Registration Certificate and the acknowledgment granted by the registering authority of receipt of the original Book of Registration for renewal of the same for further term of three years. There were total six bidders in the tender process including the petitioner. The tender was to be opened in two stages, i.e., technical bid and finance bid. The technical bid was opened on 27.04.2015 at 11.30 a.m. As would be evident from Annexure-4, the technical bid evaluation summary which was uploaded on 15.05.2015, the petitioner’s bid was rejected giving reasons “OK” and the date of opening of financial bid was fixed to 16.05.2015 at 1.00 p.m., in which the bid of the petitioner was not taken into consideration. Hence this writ petition. 3. Mr. D.P. Mohanty, learned counsel for the petitioner states that in response to the tender call notice dated 25.03.2015 issued by opp. party no.2-Superintending Engineer (PH), P.H. Circle, Bhubaneswar, Dist. Hence this writ petition. 3. Mr. D.P. Mohanty, learned counsel for the petitioner states that in response to the tender call notice dated 25.03.2015 issued by opp. party no.2-Superintending Engineer (PH), P.H. Circle, Bhubaneswar, Dist. Khurda, for execution of some construction work, the petitioner had submitted his tender on 23.04.2015 online along with all the requisite documents, except the renewed licence as an ‘A’ Class Contractor for the period from 01.04.2015 to 31.03.2018 as the licence had expired on 31.03.2015, and the renewal application had been filed. The technical bids were opened on 27.04.2015 and uploaded on 15.05.2015 in which the bid of the petitioner was rejected. Thereafter the financial bids of the other qualified tenderers were opened on 16.05.2015 and, on merits, opp. party no.3 was awarded the contract. The order dated 15.05.2015, by which the tender of the petitioner was rejected on technical ground, was not communicated to the petitioner but only uploaded on the website. It is contended that in the counter affidavit, it may have been stated that the reason for rejection was that the petitioner did not submit his renewed licence as an ‘A’ Class Contractor, but since no such reason was communicated to the petitioner or uploaded on the website, and the subsequent reason given in the counter affidavit would not be sufficient. It is further submitted that even if the renewed licence had not been submitted by the petitioner, since it was informed that the petitioner had applied for renewal of such licence vide application dated 03.02.2015, the petitioner ought to have been granted time to furnish the renewed licence, which time was not given to the petitioner. 4. Mr. B. Bhuyan, learned Addl. Government Advocate appearing for the State per contra justified the action of the authority stating that the tender submitted by the petitioner being defective one, as it had not been incorporated the registration of renewed licence as ‘A’ class contractor for the period from 01.04.2015 to 31.03.2018, he was not eligible to be considered for participating in the bid itself. The reason for rejection had been uploaded in the website, but the same having not been downloaded by the petitioner and suppressing the said fact the petitioner having approached this Court by filing this present application, it cannot be termed that the petitioner approached this Court with clean hand. Therefore, the writ petition should be dismissed in limini. 5. The reason for rejection had been uploaded in the website, but the same having not been downloaded by the petitioner and suppressing the said fact the petitioner having approached this Court by filing this present application, it cannot be termed that the petitioner approached this Court with clean hand. Therefore, the writ petition should be dismissed in limini. 5. Mr. G. Pani, learned counsel appearing for opposite party no.3 states that pursuant to the valid NIT, the opposite party no.3 having been selected as eligible to execute the work in terms and conditions of the contract itself, no fault can be found with the authority. As such, no illegality or irregularity has been committed by the authority so as to warrant interference of this Court in the present application. 6. We have heard Mr. D.P. Mohanty, learned counsel for the petitioner, Mr. B. Bhuyan, learned Addl. Govt. Advocate for the Stateopp. parties 1 and 2 and Mr. G.S. Pani, learned counsel for opp. party no.3. Pleadings between the parties have been exchanged and with the consent of the learned counsel for the parties the writ petition is being disposed of at the admission stage. 7. In view of the aforesaid, the following two questions arise for consideration: (i) Whether the reason for rejection of the tender of the petitioner was communicated to the petitioner before the financial bids were opened? (ii) Whether time to produce the renewed licence should have been granted to the petitioner before rejecting his tender? 8. The moot question for consideration is that, while rejecting the bid of the petitioner, it has to be seen whether any reason has been assigned by the authority or not. The meaning of the expression “reason” as stated by Franz Schubert : “reason is nothing but analysis of belief.” In Black’s Law Dictionary, 5th Edition, ‘reason’ has been defined as : “ a faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions”. The meaning of the expression “reason” as stated by Franz Schubert : “reason is nothing but analysis of belief.” In Black’s Law Dictionary, 5th Edition, ‘reason’ has been defined as : “ a faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions”. In other words, reason means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe. The importance of giving reason, it reveals a rational nexus between facts considered and conclusions reached. 9. In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 and in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915 , the apex Court held reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. The fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi-judicial or administrative. The recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record and it is vital for the purpose of showing a person that he is receiving justice. 10. In Maharashtra State Board of Secondary & Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 715, the apex Court, while exercising power under Article 226 of the Constitution of India, held it is to see whether the maker of the order, Judgment, decree or sentence acted fairly and justly to meet out justice to the aggrieved person. In re Racal Communications Ltd. (1980) 2 All ER 634 (HL) it is held that the giving of reasons facilitates the detection of errors of law by the Court. 11. In re Racal Communications Ltd. (1980) 2 All ER 634 (HL) it is held that the giving of reasons facilitates the detection of errors of law by the Court. 11. Considering the above meaning of “reasons” and its essentiality in passing the orders and applying the same to the present context, it reveals from the additional affidavit filed by the State-opposite parties 1 and 2 that the documents giving reasons have been attached as Annexure-A to the said affidavit. With the writ petition, the petitioner has filed only the first page of the summary uploaded on the website, in which it was merely stated that the tender of the petitioner has been rejected on technical grounds. However, along with the summary, the detailed minutes had also been uploaded which had not been enclosed along with the writ petition, which was part of the summary which has been filed as Annexure-A to the additional affidavit. The reason stated therein clearly indicates that the registration certificate of the petitioner as ‘A’ Class Contractor was not valid. It is not disputed by the learned counsel for the petitioner that such document was also uploaded along with the summary, and that the complete document was not filed by the petitioner along with the writ petition. On perusal of the summary along with the minutes, it is clear that the same was signed by the authorized personnel at 6.14 P.M. on 15.05.2015 and both the documents were uploaded on the same date at 6.15 P.M., which is not denied by the learned counsel for the petitioner. 12. In such view of the matter, the first contention of the learned counsel for the petitioner that no reason for rejecting the tender documents of the petitioner was given, does not have merit as clear reason that the petitioner had not furnished valid registration certificate as an ‘A’ Class Contractor, has been assigned in the minutes uploaded on the website. 13. As regards the second question that time ought to have been given to the petitioner to furnish the renewed certificate of registration, we are of the opinion that unless such time was required to be given in the terms and conditions of the Tender Documents, the opp. parties could not have given such opportunity to the petitioner. 13. As regards the second question that time ought to have been given to the petitioner to furnish the renewed certificate of registration, we are of the opinion that unless such time was required to be given in the terms and conditions of the Tender Documents, the opp. parties could not have given such opportunity to the petitioner. All the documents were required to be filed along with the tender papers, and in case had any extra time been given to the petitioner for furnishing the renewed licence, the same would have amounted to deviation of the terms of the tender conditions. As such, the opp. parties cannot be said to have faulted in not giving time to the petitioner to furnish such certificate. 14. Even otherwise, what we notice is that the renewed licence was not filed with this petition, meaning thereby that at the time of filing of the writ petition also the petitioner did not have the renewed licence, which he had obtained at a later stage and filed along with the additional affidavit on 03.08.2015, which was nearly 2½ months after the bid was finalized i.e. 16.05.2015. 15. As such, it is clear from the record that the reasons for rejection of the tender of the petitioner had duly been communicated and there was no necessity for giving any time to the petitioner to produce the document which was lacking, i.e., the registration certificate in the present case. 16. In view of the discussions made in the foregoing paragraphs, we find no illegality or irregularity has been committed by the authority so as to call for interference with the order impugned in Annexures-4 and 5. Accordingly, we do not find any merit in the present petition, which is accordingly dismissed. No order as to cost.