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2017 DIGILAW 654 (ORI)

Sarat Chandra Mohapatra v. State of Odisha

2017-07-03

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : K.R. MOHAPATRA, J. 1. The petitioner in this writ petition assails the action of Superintending Engineer, Rural Works, Southern Circle, Sunabeda opposite party no. 4 in accepting the bid of opposite party no. 6, namely, Subash Chandra Patro, for construction of road under Pradhan Mantri Gram Sadak Yojana (for short ‘PMGSY’) vide Package No. OR 27-346 (L O42-Madhuban to Kandha Kinijiri) and prays for quashing of the same. 2. The contention of the petitioner in nut shell as revealed from the writ petition is that pursuant to the Tender Call notice for construction of road under PMGSY as aforesaid, the petitioner along with opposite parties 6 and 7 submitted their bids through e-Procurement within the stipulated time, the last date of submission being 19.10.2016. As per the schedule, the technical bids of the bidders were opened on 20.10.2016. The technical bid list was prepared on 21.10.2016. As per Clause 5 of the Notice Inviting Tender (for short ‘NIT’), the petitioner had submitted the required documents including the original affidavit regarding correctness of the information furnished along with the bid documents. The original documents submitted with technical bids were opened on 22.10.2016 in presence of the bidders. On opening of the same, it was found that the opposite party no. 6 had not submitted the original affidavit as required under Clause 5 (c) of the NIT, which was mandatory as per the PMGSY guidelines. Said opposite party no. 6 could not also submit the original affidavit within the grace period provided under Clause 5(c) of the NIT i.e. within three working days from the date of opening of the technical qualification part of the bid. As such, non-submission of the original affidavit within the stipulated time as required under Clause 5 (c) of the NIT rendered the opposite party no. 6 disqualified to participate in the tender process. However, the price bid of opposite party no. 6 was opened and he was declared L-I, whereas the petitioner and opposite party no. 7 whose tender documents were complete in all respect, were declared L-II and L-III respectively, and all the three bidders were declared qualified. 3. Heard Shri S.K. Mohapatra, learned counsel for the petitioner, Shri P.K. Muduli, learned Addl. Government Advocate appearing for opposite parties 1 to 5 and Shri P.K. Ray, learned counsel appearing for opposite party no. 6. 4. 7 whose tender documents were complete in all respect, were declared L-II and L-III respectively, and all the three bidders were declared qualified. 3. Heard Shri S.K. Mohapatra, learned counsel for the petitioner, Shri P.K. Muduli, learned Addl. Government Advocate appearing for opposite parties 1 to 5 and Shri P.K. Ray, learned counsel appearing for opposite party no. 6. 4. It is contended by the learned counsel for the petitioner that the bid of opposite party no. 6, who had not submitted the original affidavit as per Clause 5 (c) of the NIT as well as PMGSY guidelines (Annexure-2), could not have been accepted as he had not complied with the mandatory condition of the NIT. The petitioner had also sent a notice through his Advocate on 11.11.2016 to the Commissioner-cum-Secretary, Government of Odisha, Rural Development Department, Bhubaneswar-opposite party no. 1, but to no effect. Hence, this writ petition has been filed. 5. Mr. P.K. Muduli, learned Addl. Government Advocate with reference to the counter affidavit filed by opposite parties 1 to 5 submitted that although opposite party no. 6 had submitted the scanned copy of the affidavit along with the tender documents, he could not submit the original affidavit within three working days from the date of opening of the technical bid as required under Clause 5 (c) of the NIT. He had, in fact, furnished the original affidavit beyond the stipulated date along with a forwarding letter intimating that the original of the scanned copy of the affidavit regarding correctness of the information’s furnished with bid documents, which was filed along with tender documents, was misplaced and despite all attempts, the same could not be traced out. However, he had enclosed a separate affidavit (in original) as well as photocopy of the affidavit filed along with tender documents in support of authenticity and genuineness of the information furnished and documents filed along with his bid and prayed for acceptance of the same. The Executive Engineer, Rural Works, Rayagada-opposite party no. 5 upon receipt of the original affidavit from opposite party no. 6 sought for clarification from Superintending Engineer, Rural Works, Southern Circle, Sunabeda-opposite party no. 4, who, in turn, sought for clarification from the Chief Engineer, Rural Works, PMGSY Branch, Bhubaneswar-opposite party no. 3 with regard to acceptance of the bid of opposite party no. 6 vide his letter no. 4267 dated 26.11.2016 (Annexure-B/5). 6 sought for clarification from Superintending Engineer, Rural Works, Southern Circle, Sunabeda-opposite party no. 4, who, in turn, sought for clarification from the Chief Engineer, Rural Works, PMGSY Branch, Bhubaneswar-opposite party no. 3 with regard to acceptance of the bid of opposite party no. 6 vide his letter no. 4267 dated 26.11.2016 (Annexure-B/5). While the matter stood thus, the Executive Engineer, Rural Works, Rayagada-opposite party no. 5 received the copy of the interim order dated 8.12.2016 passed by this Court in Misc. Case No. 19070 of 2016 in which it is provided that any contract awarded shall be subject to further orders to be passed in the writ petition. Due to pendency of the writ petition, the opposite parties 1 to 5 had not taken any final decision with regard to acceptance of the bid of opposite party no. 6. As such, learned Addl. Government Advocate has submitted that the writ petition is premature and is liable to be dismissed. 6. Learned counsel appearing for opposite party no. 6 has also filed a counter affidavit supporting the plea taken by learned Addl. Government Advocate. He has further submitted that the affidavit as per Clause 5 (c) of the NIT is being filed in support of the correctness of the information’s and documents submitted along with the bid. The opposite party no. 6 had also filed a scanned copy of the affidavit along with his bid through e-Procurement system. Since the original of the scanned copy of the affidavit was lost, he had filed another copy in support of the correctness of the information furnished and documents filed along with the bid. The petitioner does not challenge the correctness of information and genuineness of documents submitted by opposite party no. 6 along with the bid. As such, the writ petition needs no consideration and the opposite party no. 6 being the L-1 bidder should be awarded with contract. 7. Taking into consideration the submissions of the learned counsel for the parties, it is apparent that the opposite party no. 6 had submitted a scanned copy of the affidavit in support of the correctness of the information furnished with the bid documents. As per Clause 5(c) of the NIT, the opposite party no. 6 was required to submit the original affidavit within three working days after opening of the technical qualification part of the bid either by registered post or by hand. As per Clause 5(c) of the NIT, the opposite party no. 6 was required to submit the original affidavit within three working days after opening of the technical qualification part of the bid either by registered post or by hand. Admittedly, the opposite party no. 6 had not submitted the same within three days of opening of the technical bid. Clause 5 of the NIT reads as follows: “5. Submission of Original Documents: The bidders are required to submit (a) original Demand Draft towards the cost of bid document and (b) original bid security in approved form and (c) original affidavit regarding correctness of information furnished with bid document as per provisions of Clause 4.4B(a)(ii) of ITB with Southern Circle Rural Works, Sunabeda, on a date not later than three working days after the opening of technical qualification part of the Bid, either by registered post or by hand.” (Emphasis supplied) 8. Clause 5(c) stipulates that the affidavit (in original) is required to be filed by the bidders in support of correctness of the information furnished with the bid documents. The opposite party no. 6 had, in fact, submitted a scanned copy of the affidavit in support of correctness of the information furnished with the bid documents, but he could not produce the original affidavit within three working days after opening of technical bid, which he had submitted belatedly. The affidavit required to be filed in terms of Clause 5(c) of the NIT is in the nature of declaration that the informations furnished with the bid documents are correct. The petitioner in this writ petition does not challenge any of the information submitted by opposite party no. 6 along with the bid documents to be incorrect. As such, the purpose for submission of the affidavit (in original) is fulfilled by filing the affidavit (in original) although the same was not filed within the stipulated period as provided in Clause 5 (c). 9. The conditions of the NIT can be classified in two categories, namely, those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition that which may be only procedural. 9. The conditions of the NIT can be classified in two categories, namely, those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition that which may be only procedural. The conditions enumerated in Clause 5(c) of the NIT cannot be termed as essential condition as the affidavit is being filed only in the form of a declaration that informations furnished with the bid documents are correct. In the case of M/s. Poddar Steel Corporation v. M/s. Ganesh Engineering Works and others, reported in (1991) 3 SCC 273 , the Hon’ble apex Court in paragraph-6 held as follows: “6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank the clause no. 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories-those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.” 10. This Court in the case of Nestor Pharmaceuticals Ltd. and another –v-State of Odisha and another, reported in 2017 (I) ILR-CUT-922, relying upon the decision in the case of M/s. Poddar Steel Corporation (supra) has also taken a similar view. 11. Thus, belated filing of the affidavit (in original) would, in no way, affect the eligibility of the opposite party no.6. Further, the tender condition is conspicuously silent about the disqualification of a bidder for non-submission of the affidavit (in original) in terms of Clause 5 (c) of the NIT. Admittedly, the opposite party no. 11. Thus, belated filing of the affidavit (in original) would, in no way, affect the eligibility of the opposite party no.6. Further, the tender condition is conspicuously silent about the disqualification of a bidder for non-submission of the affidavit (in original) in terms of Clause 5 (c) of the NIT. Admittedly, the opposite party no. 6 is the L-I bidder and is otherwise qualified to participate in the tender in question. 12. In view of the discussion made above, this writ petition being devoid of any merit stands dismissed. In the circumstances, there shall be no order as to cost.