Super Construction Associates v. State of Uttarakhand
2019-04-10
SUDHANSHU DHULIA
body2019
DigiLaw.ai
JUDGMENT : Sudhanshu Dhulia, J. 1. Since the issue raised in all the aforesaid writ petitions is common and identical, therefore, all these writ petitions are heard together and decided by this common judgment. However, for the sake of convenience, the facts of Writ Petition (M/S) No. 3044 of 2018 are being referred in this judgment. 2. All these writ petitions have been filed by a construction company, namely, M/s Super Construction Associates, which is a partnership firm, engaged in the business of construction of roads. The matter before this Court is regarding a work contract issued by the Uttarakhand Rural Roads Development Agency (from hereinafter referred to as "URRDA"). This project was substantially funded by the Central Government Scheme known as "Pradhan Mantri Gram Sadak Yojana". A tender notice/advertisement was published by the respondent department on 18.07.2018. By the said notice, bids were invited from the qualified bidders for construction of various motor roads in rural areas of Uttarakhand. The total number of such projects were 39. The petitioner was a bidder for six projects in different Districts in Uttarakhand. 3. It was a two bid process, where all the bidders in response to the tender notice/advertisement had to submit their bids giving their qualifications, inter alia, turnover, financial status and litigation history, amongst various other information. All those persons who qualified the technical bid were thereafter to be evaluated on the basis of their financial bids. In all the cases, which we have before this Court, the petitioner's company had responded to as many as six projects but was held technically disqualified in all. The orders passed by the Committee, however, are of different dates holding the petitioner i.e. M/s Super Construction Associates as technically disqualified. All the same, the reason assigned by the respondents for holding the petitioner's company as disqualified is common for all the projects, which was that the petitioner had not submitted his correct information regarding its "litigation history". 4. As per Clause 4.7 of the Standard Bidding Document, a bidder can be disqualified if he has made any misleading or false representation in the form, or he has not stated that he has any litigation history, etc.
4. As per Clause 4.7 of the Standard Bidding Document, a bidder can be disqualified if he has made any misleading or false representation in the form, or he has not stated that he has any litigation history, etc. Clause 4.7 is as follows:- "4.7 Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have: (i) made misleading or false representations in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements; and/or (ii) record of poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failures etc; and/or (iii) participated in the previous bidding for the same work and had quoted unreasonably high or low bid prices and could not finish rational justification for it to the Employer." (Emphasis provided) 5. Thereafter under the Standard Bidding Document, there is Section 3, which is called "qualification information", wherein under Clause 1.9, the bidder has to supply information on current litigation, which reads as under:- "1.9 Information on current litigation in which the Bidder is involved." (Emphasis provided) 6. In all the different projects where bids were invited as per the tender notice/advertisement, there were different dates, by which the bidding documents had to be submitted by the prospective bidders for their evaluation in the technical bid. All the same, the last date for submission of the bid was between 07.08.2018 to 06.09.2018 for different projects. 7. In all the cases, the bid of the petitioner i.e. M/s Super Construction Associates has been rejected as technically disqualified for the reason that he has not submitted his correct litigation history. The reason being that with the same department i.e. URDDA, the petitioner on an earlier occasion when bids were invited by the department and another participant was declared qualified, he filed a writ petition before this Court being WPMS No. 3006 of 2017. In this writ petition, he had challenged the order of the employer, by which another company was declared as technically qualified, which according to the petitioner, ought not to have been done. 8. It is an admitted fact that though the writ petition was pending before this Court on the date the bidding documents were submitted by the petitioner, yet he had not furnished this information to his employer.
8. It is an admitted fact that though the writ petition was pending before this Court on the date the bidding documents were submitted by the petitioner, yet he had not furnished this information to his employer. In other words, he has not submitted that there is a litigation pending against the employer before the High Court pertaining to a contract. The petitioner contends that on 05.09.2018, the petitioner had moved an application along with an affidavit before the respondent authorities with a prayer that the said writ petition will be withdrawn (i.e. WPMS No. 3006 of 2017), and acting upon his application the company which was declared as responsive was finally given the contract on 05.12.2017. However, there is nothing on record to show that such an application was moved by the petitioner and in fact there is a specific denial of this fact by the respondents in their counter affidavit in paragraph no. 13. 9. All the same, the said writ petition was dismissed as withdrawn by this Court vide order dated 07.09.2018. The petitioner would therefore argue that he could not have been declared as technically disqualified for the reason that firstly his litigation was with the same department and even though he has not specifically filled the column about the litigation history, it cannot be said that the department was unaware of the same. 10. Learned counsels for the private respondents in WPMS No. 2912 of 2018 Sri Subhash Upadhayaya as well as learned counsel for URDDA Sri S.S. Chauhan have argued that the interesting part here is that the affidavit also which was filed in writ petition being WPMS No. 3006 of 2017 was sworn as far back on 27.05.2018, but was not filed till 05.09.2018. Therefore admittedly till the last day of filing of the bids in the present case at hand, the case filed by the petitioner before this Court was pending. 11.
Therefore admittedly till the last day of filing of the bids in the present case at hand, the case filed by the petitioner before this Court was pending. 11. Be that as it may, the fact remains that as per Clause 4.7 of the Standard Bidding Document, it is clear that if a bidder makes any misleading or false representation in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements, or there is record of poor performance such as abandoning the works, not properly completing the contract, inordinate delay in completion, litigation history, or financial failures etc; or the bidder participated in the previous bidding for the same work and had quoted unreasonably high or low bid prices and could not finish rational justification for it to the Employer, the bidder shall be held disqualified. 12. This Court has not even an iota of doubt that the petitioner had concealed a material fact while submitting his bidding documents. It was absolutely mandatory upon the petitioner to have furnished the information about the litigation history, particularly when this litigation was regarding the contract with the same department. He has admittedly not furnished this information. Although that writ petition was subsequently withdrawn by the petitioner, but it was withdrawn after the documents were submitted by the petitioner in the present cases. Therefore, it will be an afterthought and the fact would remain that the petitioner had not submitted the correct information, and therefore, as per the terms of Standard Bidding Document itself, the petitioner's bid stood non-responsive and in view of this Court rightly so. 13. This Court finds no anomaly in the impugned orders. The writ petitions fail and are hereby dismissed.