Vadera Tradelink Private Ltd. v. State of Rajasthan
2018-03-20
SANDEEP MEHTA
body2018
DigiLaw.ai
JUDGMENT : SANDEEP MEHTA, J. 1. These writ petitions involve common questions of facts and law and are thus being decided together by this single order. 2. The defects pointed out by the office in S.B. Civil Writ Petitions Nos. 3887/2018, 3903/2018, 3905/2018 and 3907/2018 are overruled and the matters are heard for admission today itself. 3. By way of these writ petitions under Article 226 of the Constitution of India, the petitioner herein has approached this Court for challenging the action taken by the respondents whereby, the petitioner's bids in the tenders/invitations for Expression of Interest issued by the respondent Jodhpur Development Authority for construction of affordable houses for Economically Weaker Sections (EWS) and Low Income Groups (LIG) in the revenue village Paldi Khichiyan were rejected on technical aspect. The details of the bids are as below:- Sr. No. Writ Petitions NIT number with packages 1. 3381/2018 NIT No. 88/2016-17 dated 26.12.2016 Village Paldi Khichiyan, Package-VII 2. 3887/2018 NIT No. 88/2016-17 dated 26.12.2016 Village Paldi Khichiyan, Package-V 3. 3903/2018 NIT No. 88/2016-17 dated 26.12.2016 Village Paldi Khichiyan, Package-III 4. 3905/2018 NIT No. 88/2016-17 dated 26.12.2016 Village Paldi Khichiyan, Package-II 5. 3907/2018 NIT No. 88/2016-17 dated 26.12.2016 Village Paldi Khichiyan, Package-I 6. 3844/2018 NIT No. 88/2016-17 dated 26.12.2016 Village Paldi Khichiyan, Package-IV 7. 3846/2018 NIT No. 88/2016-17 dated 26.12.2016 Village Paldi Khichiyan, Package-VI 4. The petitioner has also challenged the orders passed by the appellate authority and the first appellate court whereby, the first appeals and second appeals preferred by the petitioner under the provisions of the Rajasthan Transparency in Public Procurement Act, 2012 were dismissed. 5. It is an admitted position and a common ground as emerging from record that the petitioner's bids in all the above mentioned NITs were dismissed on the ground that it was not having minimum "Annual" turnover of 30 crore rupees in the preceding 3 years. 6. Shri Manish Shishodia, learned counsel representing the petitioner urges that the respondents have wrongly interpreted the condition pertaining to qualification of the bidders on the financial aspect while rejecting the petitioner's bids and appeals. He points out that in the Expression of Interest letter dated 26.12.2016, the financial qualification of bidders is described as: Minimum Turn over in last 3 or less years in housing including infrastructure 30 Cr 7.
He points out that in the Expression of Interest letter dated 26.12.2016, the financial qualification of bidders is described as: Minimum Turn over in last 3 or less years in housing including infrastructure 30 Cr 7. He further urges that even in the contract agreement, the minimum turnover, which is required for a project upto 10 acres, is 30 Crore rupees combined in the last 3 years or less years 2013-14 and 2015-16. He vehemently contends that the import of the above conditions is clear and unambiguous and it clearly stipulates to the effect that the gross turnover of the bidder should be 30 Crore rupees in the preceding 3 years and the same cannot be interpreted to mean that the annual turnover should be of 30 crore rupees. He urges that this view taken by the procuring entity as well as the appellate authorities is totally contrary to the above condition as stipulated in the expression of interest letter and the contract agreement. On these grounds, he implored the Court to accept the writ petitions, quash the impugned orders and direct the respondents to consider petitioner's bids as technically responsive. 8. I have heard and considered the arguments advanced by Shri Shishodia and have gone through the documents annexed with the writ petition, impugned orders and more particularly, the instructions to bidders. 9. In my firm opinion, the controversy can easily be decided by a plain and simple reading of the eligibility condition No. 1.4(c) mentioned in the instructions to the bidder which is the binding document while assessing the technical/financial qualification of every bidder. The said condition reads as below:- "1.4.-As detailed in the technical parameters of developers. A bidder may be a natural person, private entity, registered firms and or registered company, government-owned entity or, where permitted in the bidding documents any combination of them with a confirmed intent to enter into an agreement or under an existing agreement in the form of a Joint Venture SPV as per policy. In the case of a Joint Venture: (a).... (b)..... (c) The annual financial turnover of the bidders in the past 3 financial years for different housing/other building projects packages including infrastructure shall be as per technical parameters:" 10. This condition makes it clear that the annual financial turnover of the bidders in the past 3 financial year for different housing/building projects shall be as per technical parameters.
(b)..... (c) The annual financial turnover of the bidders in the past 3 financial years for different housing/other building projects packages including infrastructure shall be as per technical parameters:" 10. This condition makes it clear that the annual financial turnover of the bidders in the past 3 financial year for different housing/building projects shall be as per technical parameters. Thus, whenever assessment is to be made of turnover either as per the EOI or the contract document, the same has to be referred to as annual turnover. The slightly vague language of the technical qualifying parameters in the EOI and the contract document is amply clarified by the "instruction to bidders" which has an overriding effect whenever an anomaly occurs in these documents. Both the appellate authorities i.e. first appellate authority and second appellate authority elaborately considered this aspect of the matter and held; rightly so in the opinion of this Court that whenever minimum turnover is referred to, it has to be read as annual turnover and not gross turnover spread out over a period of 3 years. The expression 3 years' in these documents has been used so as to give a buffer of average and save the bidder if fortuitously, in any of the 3 preceding years, the turnover falls below 30 crores. In such a situation, the average would be calculated and if the figure comes to 30 crore rupees, the bidder would qualify on the technical aspect. Admittedly, the petitioner was not having minimum annual turnover of 30 crore rupees in the preceding 3 years and thus, was rightly disqualified on the technical parameters in the respective questioned tender process. The impugned orders ex-facie do not suffer from any illegality, arbitrariness or perversity nor the same can be termed as illegal by any stretch of imagination so as to warrant interference in exercise of extraordinary writ jurisdiction of this Court. 11. Hence, the writ petitions and stay applications are rejected summarily as being devoid of merit. No order as to cost. 12. A copy of this order be placed in each file.