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2018 DIGILAW 586 (ORI)

B. K. Construction v. State of Orissa

2018-06-18

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT VINEET SARAN,CJ. - The Chief Engineer, (DPI & Roads)-opposite party no.2 in the Office of the Engineer-in-Chief (Civil), Odisha, Bhubaneswar invited percentage rate bids in double cover system for execution of 11 number of works from Special Class/Super Class contractors registered with the State Governments and contractors of equivalent Grade/Class registered with Central Government/MES/Railways in Bid identification No.CE-DPI & R-60/2017-18 File No.-C-IIMIFB- 06/2017 No.15200 dated 31.03.2018. 2. As per the schedule, the bid documents were available in the website from 10 AM of 16.04.2018 to 5.00 PM of 07.05.2018 for online bidding, with condition that the bidder must possess compatible Digital Signature Certificate (DSC) of Class-II or Class-III. The bids, which were to be received only on “on line”, were to be opened at 11.30 hours on 08.05.2018 in the Office of the Engineer-in-Chief (Civil), Nirmana Saudha, Unit-V, Bhubaneswar, Odisha in the presence of the bidders who wished to attend. Bidders, who participated in the bid could witness the opening of bids after logging on to the site through their DSC. The bidder was to transfer online Rs.10,000.00 towards cost of the Bid through a process as mentioned in Detailed Tender Call Notice (DTCN). However, the authority reserved the right to cancel any or all bids without assigning any reason. 3. The petitioner is a partnership firm. Having satisfied the conditions stipulated in the advertisement issued in inviting for bids dated 31.03.2018, submitted its bid in respect of Sl. No.10 for work “Improvement to Kesinga- Rupra road (ODR) from 1/000 Km to 7/800 Km in the district of Kalahandi under State Plan” and participated in the tender process by furnishing necessary information as per tender conditions, which was duly accepted by the tender inviting authority. The petitioner furnished the details of equipments and machineries, either possessed or owned/on leases/on hire as per tender conditions. 4. As per Clause-10(v) of the tender call notice, it was mentioned in relation to details of machineries and evidence of ownership of principal machineries/equipments with further condition that the contractor shall have to secure minimum 80% of marks, failing which the tender shall be liable for rejection. 4. As per Clause-10(v) of the tender call notice, it was mentioned in relation to details of machineries and evidence of ownership of principal machineries/equipments with further condition that the contractor shall have to secure minimum 80% of marks, failing which the tender shall be liable for rejection. Clause 8.5.1 stipulated that after opening of technical bid, the bidder may be asked in writing/online (in their registered e-mail ID) to clarify about the uploaded documents provided in the Technical Bid and the tender inviting authority could ask to provide other documents and also further documents, and the tender inviting authority had right to accept any additional documents. 5. The period for completion of contract was six months but the “contract data” provided that the minimum period of contract/agreement/lease deed of equipment and machineries executed in favour of the contractor should be nine calendar months from the last date of submission of bid document. The petitioner had furnished the details of nine equipments, out of which two were owned by the petitioner and with regard to five, there was lease agreement for periods over nine months. However, with regard to two equipments, namely, Hot Mix Plant and Wet Mix Plant, the lease period for such equipments was only 209 days and 263 days, which was less than nine months. Thereby, the petitioner did not comply with the said terms as required in the “contract data”. Consequentially, the bid of the petitioner was rejected as the petitioner had failed to secure the minimum qualifying marks in plant and machineries and thus, found to be non-responsive. Hence, this writ petition. 6. Mr. S.K. Dalai, learned counsel for the petitioner argued in vehemence stating inter alia that in case there was some shortcoming, the State opposite parties ought to have given time to the petitioner to remove the same. In support of such submission, the petitioner relies on clause 8.5.1 of the detailed tender call notice and submitted that with regard to majority of equipments, the lease period was more than nine months and in two cases, where it was less than nine months, the opposite parties ought to have invoked the aforesaid provision of Clause-8.5.1 of the detailed call notice and should have required the petitioner to submit fresh lease agreement for the said two equipments. Thereby, there was gross violation of the principles of natural justice and as such the tender inviting authority has misled the tender conditions and malafidely rejected the technical bid of the petitioner, without assigning any reason. 7. Per contra Mr. B.P. Pradhan, learned Additional Government Advocate appearing for the State opposite parties justified the action taken by the opposite parties and contended that there was no illegible document filed before the Technical Evaluation Committee, nor was there any doubt, which required clarification from the petitioner, as the petitioner had furnished documents which were fully legible, and clearly there was no doubt that the lease agreement for the two equipments, which ought to have been for over nine months, was for less than nine months. In absence of any ambiguity in terms of Clause-8.5.1, there was no need of calling for any information from the petitioner. As such, the action taken by the tender inviting authority in rejecting the tender of the petitioner was well within the terms and conditions stipulated in the tender call notice, which cannot be called in question in the present proceeding. 8. We have heard Mr. S.K. Dalai, learned counsel for the petitioner and Mr. B.P. Pradhan, learned Additional Government Advocate for the State opposite parties. On the basis of materials available on records, we do not intend to call for counter affidavit from the opposite parties, and are rather, with the consent of the learned counsel for the parties, proceeding to dispose of the matter at the stage of admission. 9. The only question which was raised before this Court for consideration is that whether the tender inviting committee was justified in rejecting the technical bid of the petitioner or not. For proper appraisal of the issue involved, Clause-8.5.1 of the Detailed Tender Call Notice is reproduced below: “After opening of technical bid, the bidder may be asked in writing/online (in their registered e-main ID) to clarify on the uploaded documents provided in the Technical Bid, if necessary, with respect to any doubts or illegible documents required for Technical Evaluation. The officer inviting Tender may ask for any other document of historical nature during Technical Evaluation of the tender. Provided in all such cases, furnishing of any document in no way alters the bidders price bid. Non submission of legible documents may render the bid non-responsive. The officer inviting Tender may ask for any other document of historical nature during Technical Evaluation of the tender. Provided in all such cases, furnishing of any document in no way alters the bidders price bid. Non submission of legible documents may render the bid non-responsive. The authority inviting bid may reserve the right to accept any additional document.” (emphasis supplied) 10. A plain reading of the aforesaid clause would make it clear that the clarification could have been sought from the petitioner only with regard to “any doubts or illegible documents required for Technical Evaluation” and such is not so in the case of the petitioner. There was neither any doubt with regard to the information furnished by the petitioner, nor any illegible document was provided by the petitioner. Rather, the present is a case where the petitioner had furnished the documents which were fully legible and there was no doubt that the lease agreement for the two equipments, which ought to have been for nine months, was for less than nine months. As such, Clause- 8.5.1 was not applicable in the present case and the disqualification of the petitioner cannot be faulted. 11. In Corporation of the City of Victoria v. Bishop of Vencouver Island, AIR 1921 PC 162, the Privy Council held that the words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or there is something in the context, or in the object of the statute to suggest the contrary. Similar view has also been followed by the apex Court in Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 , Madanlal Fakir Chand Dudhediya v. Shri Changdeo Sugar Mills Ltd., AIR 1962 SC 1543 , Mohammad Ali Khan v. Commissioner of Wealth Tax, AIR 1997 SC 1165 which has been referred in State of Rajasthan v. Babu Ram, AIR 2007 SC 2018 . 12. Applying the said principle to the present context and considering Clause-8.5.1 and giving the literal meaning to the said Clause, we are of the opinion that the disqualification of the petitioner cannot be faulted. Therefore, the relief so prayed, thus, does not deserve to be granted. 13. Mr. 12. Applying the said principle to the present context and considering Clause-8.5.1 and giving the literal meaning to the said Clause, we are of the opinion that the disqualification of the petitioner cannot be faulted. Therefore, the relief so prayed, thus, does not deserve to be granted. 13. Mr. S.K. Dalai, learned counsel for the petitioner in course of hearing, however, submitted that in the case of opposite party no.3 there were certain documents which were to be countersigned by the Engineer in-charge not below the rank of Executive Engineer, which were not so furnished by opposite party no.3 and had been signed only by representative of opposite party no.3 and not by the Engineer in-charge, but still its tender has been accepted. 14. It is not for us to examine as to whether the documents submitted by opposite party no.3 were sufficient or not. Needless to say, in case the petitioner is so aggrieved, it shall be open to him to represent opposite party no.2, the Chief Engineer, (DPI & Roads), Bhubaneswar, Odisha with regard to the grievance in relation to the case of opposite party no.3 M/s. RBS Construction, which shall be considered on its own merits by opposite party no.2–Chief Engineer or any other competent officer duly authorized by him in accordance with law and in terms of the advertisement, preferably within 10 days from the date of filing of such representation, after affording opportunity of hearing to the petitioner and opposite party no.3. 15. With the above observation, the writ petition stands disposed of. Petition disposed of.