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2019 DIGILAW 14 (ORI)

Suryanarayan Mohanty v. State of Odisha

2019-01-07

K.R.MOHAPATRA, K.S.JHAVERI

body2019
JUDGMENT : K.S. Jhaveri, J. Heard learned counsel for the petitioner, learned Additional Government Advocate for the State opposite parties and learned counsel for the opposite party No.5. 2. By way of this writ petition, petitioner has prayed for following relief: (i) Issuance of appropriate writ quashing the result of the evaluation of technical bid by the Technical Evaluation Committee floated in the web-site dated 19.6.2018 under Annexure-3 declaring the petitioner as disqualified and the consequential actions in opening the price bid of the opp. partyNo.5 along with another Bidder and declaring the said Opp. party No.5 as L1 Bidder as per the notice floated in the website on 20.6.2018 under Annexure-5. (ii) Issuance of a writ of mandamus directing the opp. Parties No.1 to 4 to reevaluate the technical bid of the petitioner on the face of the provisions stipulated under clause 2.1(4) & (5) and stipulations made there under so far as execution of similar nature of works put to tender on the face of the certificate submitted in the tender under Annexure-2 series and accordingly made reevaluation of the price bid so as to find out the successive L1 bidder and accordingly direct for award of contract in favour of the petitioner. 3. The facts of the case of the petitioner in brief are that the Engineer-inChief, Rural Works Odisha, Bhubaneswar (O.P. No.2) invited National Competitive Bidding through e-procurement No. 12-2017-18 (Bridges) dated 16.3.2018 on percentage rate tender for the works through e-procurement i.e. for Construction of HL Bridge over River Kusei & Local Nallah at 1st KM & 1/500 km on Batto Panchupalli road in the district of Keonjhar with approximate estimated cost of Rs. 9,95,20,000/- under the RW Division, Anandpur. As per the said tender notice technical bid was fixed to be opened on 26.4.2018 and price bid thereafter. On 31.3.2018, O.P. No.2 issued corrigendum extending the tender schedule for availing the tender up to 2.5.2018 and the opening of technical bid to be held on 4.5.2018. 9,95,20,000/- under the RW Division, Anandpur. As per the said tender notice technical bid was fixed to be opened on 26.4.2018 and price bid thereafter. On 31.3.2018, O.P. No.2 issued corrigendum extending the tender schedule for availing the tender up to 2.5.2018 and the opening of technical bid to be held on 4.5.2018. The case of the petitioner is that he has submitted his bids having all eligibility within the time, along with documents including the Turn over Certificate and execution of similar nature of work like the present tender, issued by the Executive Engineer, RW Division, Keonjhar and RW Division, Bhadrak-I. On the basis of the same and calculating the amount received by the petitioner in applying the Escalation Factor as per the eligibility criteria of Clause 2.1 (4) & (5) and stipulation there under the petitioner have achieved Rs. 798.68 lacks against the requirement of execution of similar nature of work @ 75% of the estimated cost of the work put to tender which comes to Rs. 7.46 crores only. On 19.6.2018, the tender Evaluating Authorities evaluated the technical bid of the bidders and rejected the technical bid of the petitioner vide letter No. 16164 dated 19.6.2018 and uploaded the said in the web-site on 20.6.2018. The technical bid of the petitioner has been declared disqualified due to inadequate experience in execution of similar nature of works. The petitioner also represented to the authorities in this regard. However, on 20.6.2018, the price bid of the bidder namely M/s. H.L. Infrastructure and M/s. C.P. Mohanty & Associates were opened and uploaded in the web-site from which it is revealed that M/s. H.L. Infrastructure has been declared as L1 Bidder with offer of 5.52% less than the amount of estimated rate. Challenging the said action of the authorities, petitioner filed this writ petition on 25.6.2018. 4. On 26.06.2018, this Court directed the Government counsel to take instructions and thereafter the matter was listed on 26.11.2018, when the following order was passed by the Court: "In spite of the order dated 26.6.2018, no reply is filed. As a last chance, list this matter on 10.12.2018 for filing of reply, failing which Commissioner-cum -Secretary to Govt. Rural Works Department, Odisha, Bhubaneswar shall remain present on 10.12.2018. As a last chance, list this matter on 10.12.2018 for filing of reply, failing which Commissioner-cum -Secretary to Govt. Rural Works Department, Odisha, Bhubaneswar shall remain present on 10.12.2018. Till the next date, there shall be stay of further proceeding in respect of the tender call notice under Annexure-1 series, with a direction to the opposite parties not to finalise the same." 5. Thereafter, when the matter was listed on 10.12.2018, the following order was passed by this Court: "Learned counsel for the opposite party No.5 has filed the counter affidavit in Court today. The counter affidavit be kept on record. A copy of the counter affidavit be served on the learned counsel for the petitioner. Learned counsel for the petitioner requests for time. The matter to come up on 07.01.2019 with a view to enable the learned counsel for the parties to complete their pleadings. Interim order dated 26.11.2018 shall continue till the next date." 6. The main contention of the petitioner is in respect of the eligibility criteria prescribed under clause 2.1(4) & (5) of the DTCN, which reads as under: "2.1(4) The intending tenderers should have executed similar nature of work worth 75% of the estimated cost put to tender (as in Col-3 of the Table) during any three financial year taken together of the last preceding five years (excluding the current financial year). In case of contract spanning for more than one financial year, the break up of execution of work in each of financial year should be furnished. A certificate to this effect must be enclosed from the officer not below the rank of Executive Engineer as per enclosed Format-I. 2.1(5) The intending tenderers should have the total financial turn over in respect of Civil Engineering works of an amount not less than the amount put to tender (as in Col-3 of the Table) during any 3(three) financial years taken together of the last proceeding five financial years (excluding the current financial year). The financial turn over certificate for Civil Engineering works should be submitted from the Charted Accountant showing clearly the financial turn over financial year wise." 7. The financial turn over certificate for Civil Engineering works should be submitted from the Charted Accountant showing clearly the financial turn over financial year wise." 7. It is stated that though the petitioner was fulfilling all the criteria, in spite of that, misreading both the clauses and without considering the financial turnover of the petitioner under Annexure-2, which was issued by the Chartered Accountant, his bid was rejected vide order dated 19.6.2018 mentioning the ground therein "Disqualified due to inadequate experience in similar nature of work". It is submitted that the petitioner on 07.6.2018 made a representation to the O.P. No.2 which was also accepted by the local Executive Engineer and he had also accepted the contentions of the petitioner and made an endorsement that "please discuss and give reasons of disqualification" and in spite of such representation the opp. Parties did not consider the technical bid of the petitioner in its proper perspective and proceeded further and opened the price bid of the two qualified bidder in the technical bid wherein the opposite party No.5- M/s. H.L. Infrastructure has been shown as L1 bidder with less offer of 5.52 against the estimated cost. 8. It is also contended by the learned counsel for the petitioner referring to the approximate estimated cost of the work in question as reflected at Sl. No.1 of page 5 of the original DTCN that the Approx. Estimated cost of the work was Rs. 9,95,20,000/-, whereas with a view to favour the opposite party No.5, the price was escalated to Rs. 10,57, 57, 567.75 and thus the opposite parties-authorities have acted only with a view to favour the opposite party No.5 herein. Learned counsel for the petitioner, strongly relied upon his affidavit in rejoinder and Government guidelines Note (iii) under Clause 6.3.15 of the O.P.W.D. Code Vol.I and submitted that the finalization of tenders for the works above Rs. 7.00 crores and upto Rs. 10.00 Crores should be done at the level of Engineer-in-Chief as Chairman concerned Chief Engineer as member and Financial Adviser/AFA/Accounts Officer of the same office as member secretary and in case of divergent views of Tender Committee, final decision will be taken by the next higher authority. It is further contended that the opposite parties-authorities have acted arbitrarily and rejected his bid ignoring the Administrative approval, under Annexue-10, accorded for the work in question. 9. It is further contended that the opposite parties-authorities have acted arbitrarily and rejected his bid ignoring the Administrative approval, under Annexue-10, accorded for the work in question. 9. Learned counsel for the petitioner relied upon the decisions of the Supreme Court in the case of Rashmi Metaliks Limited and Anr. Vs. Kolkata Metropolitan Development Authority and Ors., (2013) 10 SCC 95 ; and M/s. Siemens Aktiengeselischaft & S. Ltd. Vs. DMRC Ltd. & Ors, (2014) AIR SC 1483 mainly contending that if there is illegality and irregularity in the decision making process of the authority, the Court should interfere in such matters. He has also placed reliance upon a decision of the Division Bench of this Court in the case of Gangadhar Jena Vs. State of Odisha & Ors., (2017) 2 ILR(CUT) 763, wherein by a conjoint reading of sub-clauses of Clause 121.3 of the Tender Call Notice relating to General Experience, it was observed that the requirement of experience of "execution" of "similar nature of work" and cannot be interpreted to "completion of similar nature of work", and a conjoint reading must be given to the relevant clauses of the Tender Call Notice. Paragraph 9 of the judgment in Rashmi Metaliks Limted (supra), upon which reliance has been placed by the learned counsel reads as under: "9. Tata Cellular states thus : "77. The duty of the court is to confine itself to the question of legality. Its concern should be : 1. whether a decision-making authority exceeded its powers? 2. committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable Tribunals would have reached or, 5. abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under : (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under : (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex parte Brind, (1991) 1 AC 696 , Lord Diplock refers specifically to one development namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the Court should, 'consider whether something has gone wrong of a, nature and degree which requires its intervention." Paragraphs 25 and 26 of the judgment in M/s. Siemens Aktiengeselischaft & S. Ltd. (supra), upon which reliance has been placed by the learned counsel reads as under: "25. Secondly, because even assuming that the process of validation of the GEC values and their achievability was an implied condition in the evaluation process, DMRC had on the basis of an internal simulation satisfied itself that the GEC values were not unachievable. The High Court has referred to the simulation results and so has our attention been drawn to the said result from the original record produced by DMRC. We do not see any illegality or irregularity in the process of verification conducted by the DMRC to test the achievability of the GEC values. It is true that DMRC had conducted the simulation in regard to the GEC values offered by HR only but then in the absence of any condition in the tender notice requiring DMRC to conduct such verification even in regard to other GEC values, there was no need for it to undertake any such exercise. DMRC was, in our opinion, entitled to adopt such methods as were reasonable to satisfy itself above about the GEC values and their achievability offered by lowest tenderer in whose favour it was considering the award of the contract. The upshot of the above discussion, therefore, is that the process by which the bids were evaluated and eventually accepted was transparent, fair and reasonable and does not, therefore, call for any interference from this Court. 26. The upshot of the above discussion, therefore, is that the process by which the bids were evaluated and eventually accepted was transparent, fair and reasonable and does not, therefore, call for any interference from this Court. 26. That brings us to the question whether the Government of India was justified in appointing a Committee to test the evaluation of bids and, if so, whether this Court ought to look into the Report of the Committee. There is more than one aspect that needs to be kept in view in this regard. The first and foremost is the fact that the Committee was appointed at a stage when the matter was already pending before the High Court. Considerable time was spent by learned counsel for the parties in debating whether the constitution of the Committee by the Government itself tantamounted to interference with the course of justice, hence contempt. We do not, however, consider it necessary to pronounce upon that aspect in these proceedings especially because we have not been called upon to initiate such contempt proceedings. All that we need say is that once the Government had known that the entire issue regarding the validity of the process adopted by DMRC including the transparency and fairness of the process of evaluation of the bids was subjudice before the High Court of Delhi and later before this Court, it ought to have kept its hands off and let the law take its course. It could have doubtless placed all such material as was relevant to that question before the High Court and invited a judicial pronouncement on the subject instead of starting a parallel exercise. The Government could even approach the High Court and seek its permission to review the process of evaluation either by itself or through an expert Committee if it felt that any such process would help the Court in determining the issues falling for consideration before the Court more effectively. Nothing of that sort was, however, done. The Government could even approach the High Court and seek its permission to review the process of evaluation either by itself or through an expert Committee if it felt that any such process would help the Court in determining the issues falling for consideration before the Court more effectively. Nothing of that sort was, however, done. On the contrary even when the Secretary to the MoUD pointed out that the matter is subjudice and any further action in the matter could await the pronouncement of the Court, the Hon'ble Minister heading MoUD directed the constitution of the Committee with the following terms: "2(1) To examine if a fair, equitable and transparent tender process was followed by DMRC, as per the prescribed guidelines"." Paragraph 11 of the judgment of this Court in Gangadhar Jena (supra), upon which reliance has been placed by the learned counsel reads as under: "11. From a conjoint reading of sub-clauses (a), (b) and (c) of the Clause 121.3 of the Tender Call Notice relating to General Experience, it is clear that what was required, was experience of "execution" of "similar nature of work"; and not "completion" of "similar nature of work". Sub-clause (a) clearly mentions that "work in progress" as well as "completed work" should be taken into account while evaluating the experience. Sub- clause (a) further clarifies that the class of work which was to be considered for such experience was "Civil Engineering Construction Work". Clause 13 of the Tender Call Notice also speaks of similar work, which has to be read along with Clause 121.3(a), and cannot be read in isolation. Sub-clause (c) of Clause 121.3 also speaks of similar nature of work, which is also to be read along with sub-clause (a), which specifies the nature of the work to be "Civil Engineering Construction Works". Learned counsel for the opposite parties have not been able to point out that how the "bridge work" is to be treated as "similar nature of work", which is nowhere mentioned in the Tender Call Notice." 10. Learned counsel for the opposite parties have not been able to point out that how the "bridge work" is to be treated as "similar nature of work", which is nowhere mentioned in the Tender Call Notice." 10. Placing reliance upon the aforesaid decisions, it is submitted that the petitioner has wrongly been deprived from his legitimate right and qualification in view of clauses 2.1(4) and 2.1.(5) of the DTCN, as quoted above, and if both the clauses are read together, petitioner would be found suitable and eligible to compete in the competition and further as the bid of the petitioner was Rs. 27,28,545.25 less than the bid offered by the opposite party No.5 the petitioner could have the L1 Bidder and would have granted the contract and also the State would have saved Rs. 27,28,545.25. Therefore, as the decision making process in awarding the work in question is illegal, arbitrary and unreasonable, it is prayed that this Court may interfere with the same. 11. On the other hand, Mr. P.K. Muduli, learned Addl. Government Advocate pointed out the specific contention in the counter filed by the opposite parties-authorities, particularly, at paragraph 4 of the affidavit, which reads as under: "As per Clause 2.1.(4) and Clause 2.1(5) of DTCN, it is the responsibility of the petitioner to obtain Experience Certificate from the Executive Engineer concerned in "Format-I" to establish execution of similar nature of work worth 75% of the estimated cost put to tender. The estimated cost of the work in question is Rs. 995.20 lakhs and 75% of the estimated cost is Rs. 746.40 lakhs. The work in question is construction of a high level bridge. So experience towards execution of bridge is the requirement as per Clause - 2.1.(4) of the DTCN. The technical bids were opened on 19.6.2018 by the Technical Committee consisting of six members and the documents uploaded by the bidders were verified. After thorough verification of the documents uploaded by the petitioner, the Committee found that the petitioner has experience of execution of bridge work for a value of Rs. 543.05 lakhs only against the requirement of Rs. 746.40 lakhs. It is further submitted that all the Experience Certificates submitted by the bidders do not relate to bridge work. Those Experience Certificates which relate to execution of bridge work have been taken into consideration. 543.05 lakhs only against the requirement of Rs. 746.40 lakhs. It is further submitted that all the Experience Certificates submitted by the bidders do not relate to bridge work. Those Experience Certificates which relate to execution of bridge work have been taken into consideration. The experience Certificates as enclosed at Pages - 54,55, & 63 of the Writ petition were taken into account year wise but the Certificate at page 62 of the Writ Petition having certified by the petitioner himself was not accepted being in violation of Clause 2.1(4) of DTCN. The Experience Certificate from Pages 56 to 61 do not relate to experience with regard to execution of bridge work so same were not taken into account. The petitioner has given experience certificate for execution of bridge work worth Rs. 150.34 lakhs for the financial year 2012-13, Rs. 133.24 lakhs for the financial year 2013-14, Rs. 300.95 lakhs for the financial year 2014-15, Rs. 180.86 lakhs for the financial year 2015-16 and Rs.91.09 lakhs for the financial year 2016-17. Therefore, the experience for the three financial years 2012-13, 2013-14 and 2014- 15 as per Clause - 2.1(4) of the DTCN were taken into consideration which comes to worth Rs. 584.53 lakhs." 12. It is submitted by Mr. Muduli that for the reasons stated in the above quoted paragraphs, the petitioner was not eligible for the work in question. He has also pointed out that the Expert Committee, reading together both the clauses, has considered the bid of the petitioner, but he was not found eligible, therefore, it cannot be said that the authorities have taken any erroneous or illegal action. Mr. Muduli, learned AGA placed reliance upon a decision of the Supreme Court in the case of Master Marine Services (P) Ltd. Vs. Metcalfe & Hodgkinson (P) Ltd. & Anr., (2005) 6 SCC 138 , the relevant paragraphs of the judgment is quoted below: "11. The principles which have to be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by a three Judge Bench in Tata Cellular v. Union of India, (1996) AIR SC 11. It was observed that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. It was observed that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. (See para 85 of the reports.) 12. After an exhaustive consideration of a large number of decisions and standard books on Administrative Law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (See para 113 of the reports.) 13. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (See para 113 of the reports.) 13. In Sterling Computers Ltd. v. M/s M.N. Publications Ltd., (1996) AIR SC 51 it was held as under : "While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process." By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether "decision making process" was reasonable rational, not arbitrary and violative of Article 14 of the Constitution. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. .........." 14. In Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 it was observed that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations, which would include, inter alia, the price at which the party is willing to work, whether the goods or services offered are of the requisite specifications and whether the person tendering is of ability to deliver the goods or services as per specifications. 15. The law relating to award of contract by State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere. 16. The only ground on which the High Court has quashed the decision of CONCOR awarding the contract to the appellant is that there was no license to act as surveyor/loss assessor under the Insurance Act, 1938 in favour of the appellant which is a company. This question was considered by the TEC in its meeting held on 17.1.2004. The TEC also took notice of the fact that there were only two bidders (the appellant and the first respondent) in the tender and it would be desirable to prevent the tender from lapsing into a single bidder tender. After receipt of the reply from the appellant, the TEC again evaluated the tenders for pre- qualification bid and after noting that M/s Master Marine Services Pvt. Ltd. is known to be an established surveyor doing work for a number of shipping lines at various CONCOR terminals and further that Capt. Percy Meher Master, who had the license, had been appointed the Chairman of the company, made a recommendation that both, the appellant and the first respondent may be qualified for their technical capabilities. It has to be borne in mind that para 11 of the Instructions clearly conferred a power upon the CONCOR to relax the tender conditions at any stage, if considered necessary, for the purpose of finalizing the contract in overall interest of the CONCOR and the trade. It has to be borne in mind that para 11 of the Instructions clearly conferred a power upon the CONCOR to relax the tender conditions at any stage, if considered necessary, for the purpose of finalizing the contract in overall interest of the CONCOR and the trade. Therefore, having regard to the fact that the Chairman of the company had a license under the Insurance Act, the condition regarding the holding of such a license by the appellant itself, in the facts and circumstances of the case, could be relaxed. So far as commercial considerations are concerned, it is the specific case of the CONCOR, which has not been disputed by the first respondent, that ninety eight per cent of the work under the contract is of data entry of a container, for which the appellant had quoted Rs.3.00 against Rs.3.75 as quoted by the first respondent and for this kind of work no license under IRDA is required. In such circumstances, no such public interest was involved which may warrant interference by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution while undertaking judicial review of an administrative action relating to award of a contract. We are, therefore, clearly of the opinion that the High Court erred in setting aside the order of the CONCOR awarding the contract to the appellant." 13. Further, learned counsel for the opposite party No.5 pointed out that Clauses 2.1(4) and 2.1(5) of the DTCN will operate in a different field. It is submitted that in the Office Memorandum dated 16.06.2011 of Works Department Clause 2.1(5) has been inserted in the DTCN as qualification criteria and this clause deals with the bid capacity but not the criteria of similar nature of works. Therefore, escalation factor is to be applied to criteria of bid capacity and not to the criteria of similar nature of works. Further, Clause 2.1(4) of the DTCN of the present contract works deals with criteria of similar nature of works and Clause 2.1(5) deals with criteria of bid capacity, hence, the decisions taken by the opp. Parties-authorities are in conformity with the provisions of the O.P.W.D. Code and the criteria prescribed in the DTCN. Therefore, the rejection of the technical bid of the petitioner for inadequate experience in execution of similar nature of work cannot be said to be improper or arbitrary. Parties-authorities are in conformity with the provisions of the O.P.W.D. Code and the criteria prescribed in the DTCN. Therefore, the rejection of the technical bid of the petitioner for inadequate experience in execution of similar nature of work cannot be said to be improper or arbitrary. Further, learned counsel for O.P. No.5 has taken us through the counter affidavit of O.P. No.5 at paragraph-4 and pointed out that after award of contract, opposite party No.5, in consonance with terms and conditions stipulated in the contract agreement, has already commenced the work since 22.10.2018 in order to complete the work within the stipulated period of completion and in the meantime the opposite party No.5 has already spent around 1.5 crores towards preparations of site, advances for man, machinery and materials etc., which is more than 10% of the total cost. The construction machinery & accessories are already there in the project site, but the progress of the work has been stopped since 06.12.2018 after receiving the letter dated 5.12.2018 from O.P. No.4, wherein it has been instructed him to stop the work till finalization of this present writ petition. Therefore, it is prayed that petitioner is only making a false plea of arbitrariness, as a result of which opposite parties, more particularly, opposite party No.5 is suffering with huge loss. 14. In the rejoinder filed by the petitioner, an attempt is made to show that the opposite parties-authorities have not followed the Government Guidelines in the tender which costs is more than Rs. 10.00 crores and have committed breach of that conditions and decision was not taken by the appropriate Committee and thus the decision taken in finalizing the tender is question is contrary to the Government guidelines as prescribed under Note (iii) of Clause 6.3.15 of the OPWD Code Vol.I. 15. We have heard learned counsel for the parties at length. Before proceeding with the matter, it will not be out of place to mention that the petitioner has participated in the tender and with the open eyes he has filed the tender going through all the eligibility criteria. Right from the beginning, we had a specific query to the petitioner that assuming without admitting that even the Clauses 2.1(4) and 2.1(5) of the DTCN are read together, whether the petitioner had claimed the benefit of clause 2.1(5) in the tender. Right from the beginning, we had a specific query to the petitioner that assuming without admitting that even the Clauses 2.1(4) and 2.1(5) of the DTCN are read together, whether the petitioner had claimed the benefit of clause 2.1(5) in the tender. However, counsel for the petitioner was not in a position to show from the record that he has claimed any exemption. Assuming, without admitting, even if the clause which was pointed out by the learned counsel for the petitioner, is not taken into his favour, he has not claimed that benefit in any of the tender document. In that view of the matter, we are of the firm opinion that even if the affidavit of the Government is not accepted, petitioner having not claimed any benefit of Clause 2.1(5) of the DTCN in his tender document cannot make any grievance subsequently. However, we have gone through the counter affidavit of the opposite parties. The contentions raised by the learned counsel for the opposite parties that Clauses 2.1(4) & 2.1(5) of the DTCN are operating it different field is justified. Clause 2.1(4) deals with criteria of execution of work of "similar nature" and Clause 2.1.(5) deals with criteria of bid capacity. Further, as per criteria, it is the responsibility of the petitioner to obtain Experience Certificate from the Executive Engineer in 'Format-I' to establish execution of similar nature of work worth 75% of the estimated cost put to tender. But, in the present case the petitioner has failed to do so. Moreover, the technical bids were opened by a Six Members Technical Committee and it was found that the petitioner submitted the experience certificate execution of bridge work for last five financial years which costs is much less than the required costs as per the tender condition. 16. Further, in view of the observation made by the Hon'ble Supreme Court at paragraphs 12 and 16 in the case of Master Marine Services (P) Ltd. (Supra), as quoted above, it will be appropriate for us not to substitute our opinion where an expert Committee after considering all the aspects of the matter has taken a decision in rejecting the financial bid taking into consideration that the petitioner was not fulfilling the criteria under Clauses 2.1(4) and 2.1(5). Thus, other allegations with regard to administrative/technical decision, as submitted by the learned counsel for the petitioner, cannot be taken into consideration. Thus, other allegations with regard to administrative/technical decision, as submitted by the learned counsel for the petitioner, cannot be taken into consideration. In our considered opinion, the escalation/enhancement of price will only come if a bidder is eligible in all respect. As per the documents shown and reasons recorded by the authorities, the petitioner even was not fulfilling the criteria under Clause 2.1(4). Thus, the plea of escalation as per Clause 2.1 (5) was rightly not taken into consideration. 17. In view of the above, we see no cogent reason to interfere with the decision taken by the authorities in rejecting the technical bid of the petitioner. Hence the writ petition is dismissed being devoid of any merit. No order as to costs.