Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 674 (ORI)

GVV-NMTPL (JV) v. Union of India

2017-07-07

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : VINEET SARAN, J. The opposite party-East Coast Railway had issued a tender call notice dated 06.02.2017 inviting tenders for certain work. The case of the petitioner is that in response to the same, opposite parties No.4 and 5 constituted a joint venture Company and the petitioner, as the joint venture Company, had submitted its tender on 17.03.2017. By order dated 05.06.2017 of the opposite party-East Coast Railway (received by the petitioner from the said opposite party vide email), it was intimated that the bid of the petitioner has been found to be unsuitable because of it being ineligible. On the representation made by the petitioner to provide details of reasons for disqualification, on 20/21.06.2017, the petitioner is said to have been informed that it was technically unsuitable because the petitioner has “not complied with the provision mentioned in para 15.3(a) of Guidelines for participation of Joint Venture Firms in works tender under Chapter-07 of E-tender document.” Being aggrieved by the said order of rejection of its tender, the petitioner has approached this Court. 2. Heard Mr.Manoj Kumar Mishra, learned Senior Counsel along with Mr.S.Dwibedi, learned counsel for the petitioner as well as Mr.D.K.Sahoo, learned counsel appearing for opposite parties No.1 to 3 and perused the record. 3. Submission of learned counsel for the petitioner is that for the purpose of the present tender, opposite parties 4 and 5, which are both private limited companies, entered into a joint venture agreement on 16.03.2017 and thereafter the petitioner submitted the tender on 17.03.2017. According to the petitioner, there had been substantial compliance of the provisions/ requirements of Clause-15.3(a) of the Guidelines for participation of joint venture firms in works tender and their tender has wrongly been rejected. For proper appraisal, the relevant Clause-15.3(a) of the Guideline is reproduced here under: “15.3 In case one or more members is/are limited companies, the following documents shall be submitted: (a) Notary certified copy of resolutions of the Directors of the Company, permitting the company to enter into a JV agreement, authorizing MD or one of the Directors or Managers of the Company to sign JV Agreement, such other documents required to be signed on behalf of the Company and enter into liability against the company and/or do any other act on behalf of the company. xx xx xx” The condition in the Clause-15.3(a) is that notarized certified copy of the resolutions of the Board of Directors of the Company to enter into a joint venture agreement was to be furnished. The Managing Director or any one of the Directors or Managers of the Company, who would be required to sign the joint venture agreement, was also required to be incorporated in the joint venture resolution. 4. A perusal of resolution of the Board of Directors of the GVV Construction Pvt. Ltd. (O.P. No.4) dated 16.03.2017 would go to show that the said Board of Directors of the Company had “…authorized Mr.CH PRADEEP REDDY, Manager of the company as an authorized person on behalf of the company for all purpose including to PARTICIPATE IN THE ABOVE TENDER WORK AND TO SUBMIT PRE QUALIFICATION FINANCIAL AND TECHNICAL BID DOCUMENTS AND FOR ISSUANCE OF POWER OF ATTORNEYS/AUTHORIZATIONS TO THIRD PARTIES IF REQUIRED…” A plain reading of the aforesaid resolution of the Board of Directors of the opposite party No.4-Company would go to show that said Mr.Reddy was authorized to participate in the tender process on behalf of the Company and there was no mention of the Board of Directors having resolved to be a part of the joint venture agreement with opposite party No.5. 5. Similarly, resolution of the Board of Directors of Nirupama Mining & Transporting Pvt. Ltd. (O.P. No.5) dated 16.03.2017 has also been filed, where by Mr.Ashish Samal, one of the Directors of the Company, was authorized and given the responsibility to sign all the documents of the above tender. In the said resolution also, there was no authorization permitting the Company to enter into a joint venture agreement. 6. From perusal of the aforesaid two resolutions of the Board of Directors of both the Companies, what is evident is that the same were mere authorization to a particular person/officer of the Company to participate in the tender process, which would be on behalf of the respective Companies. The specific requirement under the Guidelines, which forms part of the tender call notice, was that there should be a notarized certified copy of the resolution of Board of Directors of the Companies permitting the respective Companies to enter into a joint venture agreement. Admittedly, there was no such resolution of the Board of Directors of either of the two Companies. Admittedly, there was no such resolution of the Board of Directors of either of the two Companies. In such view of the matter, when the said requirement was not complied with and even though the two representatives of the Companies may have signed the joint venture agreement, but the same would not be sufficient compliance of the terms as set out in the Guidelines of the notice inviting tender, provided in Clause-15.3(a). 7. Mr. Manoj Ku. Mishra, learned Senior Counsel appearing on behalf of the petitioner has vehemently argued that the said condition would not be an essential condition and could only be classified as an ancillary condition, which could be rectified by the petitioner-joint venture Company on being asked to provide such resolution of the Board of Directors of the respective Companies for entering into the joint venture agreement. We are afraid that the said submission is not worthy of acceptance because the resolutions of the Board of Directors of the respective Companies were required to be passed prior to entering into the joint venture agreement by persons who were duly authorized by the Board of Directors of the respective Companies in that regard. There is no resolution of the Board of Directors prior to filing of the tender documents, which was 17.03.2017, for entering into a joint venture agreement. The only authorization was with regard to filing of the tender by the respective authorized persons of the Companies. The same cannot be read as to mean that the said persons were authorized to enter into a joint venture agreement. After the tender documents have already been filed on 17.03.2017, the lacunae cannot be permitted to be made good by permitting the Board of Directors of respective Companies to pass such resolutions. 8. The condition in Clause-15.3(a) of the notice inviting tender was certainly an essential condition to be complied at the time of filing of tender documents. It would have been a different matter, if such a resolution had already been passed by the Company prior to 17.03.2017 and had not been filed, in which case they may have been permitted to file it subsequently. It would have been a different matter, if such a resolution had already been passed by the Company prior to 17.03.2017 and had not been filed, in which case they may have been permitted to file it subsequently. But in absence of there being any such resolution of the Board of Directors of the respective Companies prior to constitution of the joint venture Company on 16.03.2017, no opportunity was required to be given to the petitioner to make good the deficiency as provided in Clause-15.3(a) of the Guideline. 9. In such view of the matter, we do not find any infirmity with the order of the opposite party-East Coast Railways in rejecting the tender of the petitioner. Accordingly, the relief sought for in the writ petition does not deserve to be granted. The writ petition stands dismissed. No costs.