Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 25 (CAL)

S. B. Construction & Co. v. State of West Bengal

2017-01-06

DIPANKAR DATTA

body2017
JUDGMENT : 1. It is claimed in the writ petition that the first petitioner is a registered partnership firm and the second petitioner is a partner thereof. It is also claimed that the first petitioner is a reputed Government contractor experienced, inter alia, in the work of construction, maintenance and repair of Government roads. 2. Intending to execute the work of construction of road from Rambhadrapur to Asudchak in the district of Paschim Mindapore, the first petitioner had responded to a Notice Inviting Bid (hereafter the NIB) for road works dated August 9, 2016 issued by the West Bengal State Rural Development Agency (hereafter the ‘WBSRDA’). In terms of the NIB, the bids were required to be submitted on-line and manual submissions of bids was not permissible. 3. It is not in dispute that the first petitioner had submitted the technical and financial bids in the prescribed formats, on-line. However, the bid was not considered responsive on the ground of absence of documents certifying payments received by the first petitioner for contracts in progress or completed during the last five years (hereafter the payment certificates). Correspondence followed, which did not yield any fruitful result prompting the petitioners to invoke the writ jurisdiction of this Court by presenting this writ petition dated September 27, 2016. 4. The writ petition was taken up for admission hearing on September 29, 2016. It was ascertained from Mr. Sen, learned advocate for the respondents that except for failure or omission to upload the payment certificates by the due date, the first petitioner had satisfied the other eligibility criteria mentioned in the NIB. Considering that the first petitioner had been disqualified on a technical ground despite the first petitioner possessing the requisite eligibility criteria to participate in the process, this Bench had made certain interim directions. The financial bid of the first petitioner was directed to be considered along with the financial bids of other eligible bidders but the WBSRDA was injuncted from issuing work order in favour of the first petitioner if it emerged as the L-1 bidder. The WBSRDA was, however, granted liberty to issue work order in favour of the L-1 bidder in the event the first petitioner did not emerge so. The arrangement was observed to be purely without prejudice to the rights and contentions of the parties and would not create any equity in favour of the petitioners. Mr. The WBSRDA was, however, granted liberty to issue work order in favour of the L-1 bidder in the event the first petitioner did not emerge so. The arrangement was observed to be purely without prejudice to the rights and contentions of the parties and would not create any equity in favour of the petitioners. Mr. Sen was directed to apprise the Bench the developments on October 4, 2016, which was fixed as the next date of consideration of the writ petition. 5. The writ petition was considered next on October 5, 2016. The Bench was apprised that the first petitioner had emerged as the L-1 bidder between two bidders and the price quoted by it was about Rs. 4 lakh less than the L-2 bidder. Having regard to the public interest involved in the matter, the writ petition was posted for further hearing after annual vacation. 6. With the consent of Mr. Sen the writ petition has been heard finally without counter affidavits being filed by the State as well as the WBSRDA after reopening of this Court. 7. Mr. Saha Roy, learned advocate for the petitioners contended that having regard to the terms of the NIB, no obligation was cast on the first petitioner to upload the payment certificates and, therefore, the first petitioner was disqualified illegally. He prayed for an order on the WBSRDA to treat the first petitioner as eligible and its bid responsive, and to award work order in its favour. 8. Per contra, Mr. Sen contended that in terms of clause 4.4A(a) of the Bid Data Sheet, which was part of the NIB, all the intending bidders were required to upload the payment certificates and since the first petitioner had not so uploaded, disqualifying the first petitioner from the process does not suffer from any illegality warranting interference. He further contended that the petitioners had uploaded payment certificates received during 2014-2015 and if indeed no obligation was cast on the intending bidders to upload such certificates, it is beyond comprehension as to why the petitioners uploaded only the payment certificates received during 2014-2015. He also contended that the payment certificates were required to be uploaded to enable the WBSRDA assess whether an intending bidder satisfies the eligibility criteria or not. He also contended that the payment certificates were required to be uploaded to enable the WBSRDA assess whether an intending bidder satisfies the eligibility criteria or not. In support of his submissions that the tender issuing authority cannot permit an ineligible bidder to participate in the process by diluting the terms and conditions of tender, he relied on the decisions of the Supreme Court reported in (2016) 8 SCC 622 [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium)], (2016) 8 SCC 446 [Bakshi Security & Personnel Services (P) Ltd. v. Devkishan Computed (P) Ltd.], (1980) 2 SCC 752 [Charles K. Skaria v. C. Mathew (Dr)] and (1979) 3 SCC 489 [Ramana Dayaram Shetty v. International Airport Authority of India]. Based on the above, dismissal of the writ petition was prayed for. 9. In reply, Mr. Saha Roy contended that even in terms of clause 4.4A(a) of the Bid Data Sheet, a bidder was not required to upload the payment certificates and, therefore, the defence raised by the WBSRDA is absolutely untenable. According to him, the terms and conditions of the bid documents must be clear and there should not be any ambiguity. On the terms of the NIB, the first petitioner was excluded from the zone of consideration without justification and, therefore, this Bench ought to allow the writ petition by granting relief, as claimed. 10. Having heard the learned advocates for the parties, two questions emerge for decision on this writ petition: (i) whether the NIB cast any obligation on the first petitioner to upload the payment certificates in respect of contracts in progress or completed during the last five years or not?; and (ii) if the answer to the first question is in the negative, what relief the petitioners are entitled to? 11. It would be appropriate at this stage to note certain important clauses of the NIB. Clause 4.4A of the NIB reads: “4.4A. To qualify for award of the Contract, the Bidder should meet the qualification criteria specified in the Bid Data Sheet.” Clause 12 of the NIB specified the documents which would comprise the bids 12.1(a) relating to technical bid laid down as follows: “(a) The Technical Bid shall comprise the scanned copies of the following: (i) Letter of Technical Bid; (ii) Written confirmation authorizing the signatory of the Bid to commit the Bidder in accordance with Clause 18 of ITB. (iii) Qualification information, supporting documents, affidavits and undertakings as specified in Clause 4.4B and Clause 4.6 of ITB. (iv) Undertaking that the Bid shall remain valid for the period specified in clause 15.1 of ITB. (v) Technical Proposal. (vi) If applicable: Letter of Intent to Enter into a Joint Venture Agreement, including a draft agreement between the constituent firms, indicating clearly at least the parts of the Works to be executed by the respective partner. (vii) Value added tax (VAT) clearance certificate. (viii) Permanent Account Number Card (this requirement is applicable to domestic firms only, and not to foreign firms). (ix) Evidence of access to the line of credit (only for Bidders whose liquid assets, unencumbered real assets, and other financial means are not sufficient to meet qualification requirements under clause 4.4B(b)(iii) of ITB). (x) Affidavit regarding no relation certificate. (xi) Annual Turnover certificate from Chartered Accountant (for domestic firms); or Annual Turnover Certificate from appropriate authority in their home countries (for foreign firms), for last five financial years with breakdown of annual turnover amounts for civil works versus total works for each financial year. (xii) Any other information/documents required to be completed and submitted by the Bidders, as specified in the Bid Data Sheet.” (underlining for emphasis) The Bid Data Sheet referred to in clauses 4.4A(a) and 12.1(a) contained instructions to bidders with reference to particular clauses of the NIB. Referring to clause 4.4A, sub-clause (a) pertaining to average annual construction turnover laid down as follows : “(4.4A)(a) Average Annual Construction Turnover Requirement Single Entity Joint Venture (All partners combined) Joint Venture (Each partner) Joint Venture (One partner) Bidder must have achieved a minimum average annual construction turnover as indicated in Enclosure I, calculated as total certified payments received for Contracts in progress or completed within the last five (5) years. Must meet requirement Must meet requirement Must meet 25% of the requirement Must meet 40% of the requirement Note: (I) Construction turnover shall include the value of civil works, similar to the proposed works, calculated as total certified payments received for contracts in progress or completed during the last 5 years.” 12. The ‘requirement’ in clause 4.4A(a) and the ‘note’ appended thereto do not per se require uploading of the payment certificates. It is only information for assessing average annual construction turnover that is required to be disclosed by such clause. The ‘requirement’ in clause 4.4A(a) and the ‘note’ appended thereto do not per se require uploading of the payment certificates. It is only information for assessing average annual construction turnover that is required to be disclosed by such clause. Information was duly disclosed and on assessment, the first petitioner was found to be technically qualified. It would appear from clauses 4.4B(c)(i) and 4.4B(c)(ii) of the Bid Data Sheet that specifically affidavits of the nature indicated therein were required to be produced. No such specific requirement having been indicated in clause 4.4A(a), it is difficult to read a condition, by implication, in clause 4.4A(a), as contended by Mr. Sen. If indeed any particular document (read: the payment certificates) was required to be uploaded along with the bid, the WBSRDA should have specifically mentioned the same as in clauses 4.4B(c)(i) and 4.4B(c)(ii), instead of leaving the intending bidders to guess which document is required to be uploaded and which is not so required. 13. The contention of Mr. Sen that the petitioners were aware of the requirement and as such had uploaded the payment certificates for one of the last five years does not commend acceptance, because a proper reading of the terms of the Bid Data Sheet as well as clause 12.1(a) does not so suggest. 14. Insofar as the decisions cited by Mr. Sen are concerned, there cannot be any dispute in relation to the ratio thereof. However, it has to be remembered that each case has to be decided on the basis of its peculiar facts and the decisions of the Supreme Court can be pressed into service only if the same have any application to the facts under consideration. Whether or not uploading of the payment certificates was an obligation cast by the terms of the NIB cannot be decided by mere reference to decisions of the Supreme Court. On the contrary, law is well settled that the terms and conditions of bid documents must be clear without leaving any scope for ambiguity. It is in the circumstances discussed above that this Bench holds that the first petitioner was erroneously disqualified by the WBSRDA. 15. In the result, the writ petition stands disposed of declaring that the first petitioner was duly eligible to have its bid considered by the WBSRDA, since its bid was responsive. It is in the circumstances discussed above that this Bench holds that the first petitioner was erroneously disqualified by the WBSRDA. 15. In the result, the writ petition stands disposed of declaring that the first petitioner was duly eligible to have its bid considered by the WBSRDA, since its bid was responsive. It shall now be open to the WBSRDA to proceed in accordance with law for awarding the work order in favour of the bidder who is most suitable between the two bidders who were found eligible. 16. It is made abundantly clear that the WBSRDA would not be under any obligation to award the work order in favour of the first petitioner despite quoting a price lesser than that of the other bidder, should the other bidder be found to be more technically qualified than the first petitioner to execute the work of construction of the road in question. It is also made clear that the discretion of the WBSRDA to proceed for a fresh bid process shall not stand fettered by this judgment and order. However, in each of the cases, the WBSRDA shall record cogent reasons in support of its decision. 17. There shall be no order as to costs. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.