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2021 DIGILAW 134 (ORI)

Sandeep Acharya v. State Of Odisha

2021-03-18

K.R.MOHAPATRA, S.MURALIDHAR

body2021
JUDGMENT 1. Heard Mr. Asok Mohanty, learned Senior counsel for the Petitioner and Mr. S. Palit, learned Additional Government Advocate for the State-Opposite Parties 1 to 6 and Mr. D.P. Nanda, learned Senior counsel for Opposite Party No.7. 2. This writ petition has been filed challenging the decision dated 14th January, 2019 of the Chief Engineer, DPI and Roads, Odisha (Opposite Party No.3) to revoke the tender for the work 'Improvement to Pandua- Marthapur road (ODR) from 0/000 km to 20/000 km in the district of Dhenkanal under State Plan' to the price bid opening stage after re-evaluation of the technical bid of Bright Developers & Technocrafts India Pvt. Ltd. (Opposite Party No.7). The Petitioner also challenges the consequential decision dated 21st January, 2019 of the Tender Inviting Authority (TIA) to qualify the technical bid of Opposite Party No.7. 3. Background facts are that the Petitioner is stated to be a Super Class Contractor registered as such in terms of the PWD Contractor Registration Rules, 1967, having valid licence up to March, 2021. It is stated that the Petitioner has executed and satisfactorily completed numbers of work under different departments of the Government of Odisha. 4. Opposite Party No.3 invited, by a notice dated 29th October, 2018 public tender of 19 numbers of work including the aforementioned work in question. The last date for the submission of bids online was 3rd December, 2018. Inter alia, each bidder was required to furnish an earnest money deposit (EMD) of Rs.13.44.800/-. 5. Clause 122 (c) of the Detailed Tender Condition Notice (DTCN) stipulates the eligibility criteria and requires, inter alia, the furnishing by the bidder of the following information at the time of submission of bid: (i) Evidence of ownership of principal machineries/equipments in Schedule-C as per Annexure-1 of schedule-C, (ii) Annexure-III of Schedule-C and (iii) Annexure-IV of Schedule-C if required as per clause No.10 scanned copy of all documents are to be furnished with the bid. 6. Further, Clause10 of the DTCN stipulated that: (i) The Contractors are required to furnish evidence of ownership of principal machineries/equipments in Schedule-C as per Annexure-1 for which contractor shall have to secure minimum 80% of marks failing which the tender shall be liable for rejection. 6. Further, Clause10 of the DTCN stipulated that: (i) The Contractors are required to furnish evidence of ownership of principal machineries/equipments in Schedule-C as per Annexure-1 for which contractor shall have to secure minimum 80% of marks failing which the tender shall be liable for rejection. (ii) In case the contractor executing several works he is required to furnish a time schedule for movement of equipment/machineries from one site to work site of the tendered work in Annexure-IV of Schedule-C. (iii) The contractor shall furnish ownership documents for those machineries which he is planning to deploy for the tendered work if these are not engaged and produce certificate from the Executive Engineer as per Annexure-III of Schedule-C under whom these are deployed at the time of tendering as to the period by which these machineries are likely to be released from the present contract. Certificate from the Executive Engineer or Government of Odisha or Engineer-in-Chief of the project (in case of non government projects) under whose jurisdiction the work is going on, shall not be more than 90 days old on the last date of receipt of tender. 7. Five bidders including the Petitioner and Opposite Party No.7 participated. The tender was evaluated by a Tender Evaluation Committee (TEC) (Opposite Party No.2) on 29th December, 2018. The Petitioner and three others were found to be qualified. The technical bid of Opposite Party No.7 was rejected/disqualified on the ground that the bidder failed to secure minimum qualifying of 80% marks in plants and machineries as per Clause 10 of the DTCN and did not qualify the minimum eligibility criteria as per Clause 122 (c) of the DTCN. 8. On 1st January, 2009 the price bids of those whose technical bids were found qualified, were opened. The Petitioner was found the first lowest. The tender summary was uploaded by the TEC on 11th January, 2019 showing the Petitioner to be the L1 bidder. The Executive Engineer (Civil) (Opposite Party No.6) by letter dated 1st January, 2019 directed the Petitioner to furnish all original documents for verification. Meanwhile, the EMD furnished by Opposite Party No.7 was remitted to its account since its bid was found non-responsive. 9. The Executive Engineer (Civil) (Opposite Party No.6) by letter dated 1st January, 2019 directed the Petitioner to furnish all original documents for verification. Meanwhile, the EMD furnished by Opposite Party No.7 was remitted to its account since its bid was found non-responsive. 9. The Petitioner states that it was surprised to find from the tender website that the TIA by letter dated 14th January, 2019 revoked the cancellation of the bid of Opposite Party No.7 to the price bid opening stage. This is followed by another decision of the TIA uploaded online on 19th January, 2019 qualifying the technical bid of Opposite Party No.7. 10. It is in the above circumstances that the present writ petition was filed. On 29th January, 2019 while directing issue notice to the Opposite Parties, this Court ordered that status quo as on date regarding finalisation of the tender for the work in question shall be maintained by the parties. That interim order has continued till date. 11. In response to the notice issued, a counter affidavit has been filed by Opposite Parties 1 to 6 in which it is pointed out that Opposite Party No.7 had made a representation before the TIA that its technical bid should be reevaluated since the function of the machine mentioned by it in the bid was similar to the machine that is required. Further Opposite Party No.7 pointed out that for two numbers of work awarded earlier by the department, the said machine had been taken into consideration and evaluated. 12. On the basis of the above representation, the TIA constituted a TEC comprising the following: (i) Engineer-in-Chief (Civil), Odisha - Chairman. (ii) Chief Engineer (DPI & Roads), Odisha-Member (iii) Superintending Engineer (Roads)-Member (iv) Executive Engineer - Member (v) Financial Advisor, O/O the EIC (Civil)-Member Secretary. 13. In the proceedings dated 10th January, 2019 the unanimous conclusion arrived at by the TEC was that the 'Concrete mixture fitted with weigh bench system with 10 HP Kirloskar Diesel Engine (with minimum capacity 15 cm per hour' is equal and similar in functioning the work with 'Concrete Mixer with integral weigh batching arrangement'. It was further observed by the TEC that in three other bids in which Opposite Party No.7 participated indicating the same machine, he had been awarded marks. Accordingly, the TEC decided to qualify the technical bid of Opposite Party No.7. 14. It was further observed by the TEC that in three other bids in which Opposite Party No.7 participated indicating the same machine, he had been awarded marks. Accordingly, the TEC decided to qualify the technical bid of Opposite Party No.7. 14. A rejoinder has been filed by the Petitioner to which another reply has been filed by Opposite Parties 1 to 6. In response to the contention of the Petitioner that once the EMD was returned to Opposite Party No.7 it could not have been permitted to resubmitted, it is pointed out by Opposite Parties 1 to 6 that DTCN Clause 34 (ii) deals with Security Deposit by the Contractor no restriction on resubmission of the EMD is indicated therein. The word 'may be' has been used in the said clause giving a discretion to the Government in the matter. Nowhere does the DTCN stipulate that Clause 34 is mandatory and any deviation therefrom will invalidate the bid. 15. Further it is pointed out that as per the DTCN, the requirement was 'Concrete Mixture with integral Weigh batching arrangement-2 Nos.'. Opposite Party No.7 uploaded invoices of 'Concrete Mixture fitted with Weigh bench system with 10 H.P. Kirloskar Diesel Engine' (with minimum capacity 15 Cum/hour). During evaluation of the technical bid of Opposite Party No.7, the bid was disqualified on this ground and his Earnest Money Deposit (EMD) as uploaded was refunded. Subsequently, on the representation of Opposite Party No.7, it was decided to reconsider the technical bid by constituting the TEC. On analyzing the function and output of both the machines, it was decided by the TEC to take the uploaded machine into consideration and re-evaluate the technical bid of Opposite Party No.7. Accordingly, on re-evaluation, the bid of Opposite Party No.7 was found qualified. On opening of the financial bid of Opposite Party No.7, he was found the 1st lowest and he was asked to submit required EMD by 16th January, 2019. Thereafter, the Opposite Party No.7 deposited the required EMD on 16th January, 2019. 16. A separate reply has been filed by Opposite Party No.7 adopting the same stand as Opposite Parties 1 to 6. 17. Mr. Asok Mohanty, learned Senior counsel appearing for the Petitioner, drew the attention of the Court to the observations of the TEC which re-evaluated the technical bid of Opposite Party No.7. 16. A separate reply has been filed by Opposite Party No.7 adopting the same stand as Opposite Parties 1 to 6. 17. Mr. Asok Mohanty, learned Senior counsel appearing for the Petitioner, drew the attention of the Court to the observations of the TEC which re-evaluated the technical bid of Opposite Party No.7. It was noted that Opposite Party No.7 had uploaded two invoices of 'Concrete Mixture fitted with Weigh bench system with 10 HP Kirloskar Diesel engine with minimum capacity 15 cm per hour', whereas the requirement as per the DTCN was for a concrete mixture with an integral weigh batch arrangement. According to Mr. Mohanty a concrete mixture fitted with weigh bench was not the same as one that had integral weigh batch arrangement. Secondly, it is submitted that Opposite Party No.7 had uploaded an invoice of WM-100 plant describing the equipment as Pugmill Unit with accessories for WM-100 plant whereas what was required was a wet-mix (WM) plant. According to Mr. Mohanty, the Pugmill plant was very different from a WM plant and by allowing Opposite Party No.7 to pass off a Pugmill plant as a WM plant, the TEC had deviated from the mandatory requirement of the DTCN. In particular, Mr. Mohanty referred to Clause 19 the DTCN which mandates that the tender should be strictly in accordance with the provisions as mentioned in the tender schedule and that any change in the wording will not be accepted. 18. Mr. Mohanty also submitted that the time lines for submission of documents had long since been crossed and by revisiting the technical bid of Opposite Party No.7 after it had accepted the return of its EMD, the TEC had deliberately deviated from the conditions attached to the DTCN and that was impermissible in law. Mr. Mohanty placed reliance on the observations of the Supreme Court in Tamilnadu Generation and Distribution Corporation Limited (TANGEDCO) v. CSEPDI-TRISHE Consortium (2017) 4 SCC 318 . Further Mr. Mr. Mohanty placed reliance on the observations of the Supreme Court in Tamilnadu Generation and Distribution Corporation Limited (TANGEDCO) v. CSEPDI-TRISHE Consortium (2017) 4 SCC 318 . Further Mr. Mohanty relied on the decision of the Supreme Court in Central Coalfields Limited v. SLL-SML (Joint Venture Consortium) AIR 2016 SC 3814 , to contend that the bid condition had to be mandatorily complied with without any deviation and that in the instant case by permitting the time lines to be crossed and allowing Opposite Party No.7 to furnish EMD far beyond the deadline, the entire action of the TEC and the TIA in qualifying the bid of Opposite Party No.7 was illegal and arbitrary. Reliance also placed in the decisions of the Supreme Court in AIR India Limited v. Cochin International Airport Ltd. (2000) 2 SCC 617 , West Bengal Electricity Board v. Patel Engineering Co. Ltd. AIR 2001 (SC) 682 , M/s. Monarch Infrastructure (P) Ltd. v. Commissioner Ulhasnagar Municipal Corporation AIR 2000 SC 2272 and Vidarbha Irrigation Development Corporation v. Anoj Kumar Garwala 2019 SCC Online SC 89. 19. The law in relation to the scope of judicial review in the matter concerning award of tenders is well settled. In Jagdish Mandal v. State of Orissa (2007)14 SCC 517 , the Supreme Court, following decision in Tata Cellular v. Union of India (1994) 6 SCC 651 held as under: 'Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold." This Court then laid down the questions that ought to be asked in such a situation. It was said: "Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached (ii) Whether public interest is affected? If the answers are in the negative, there should be no interference under Article 226." 20. Applying the above principles when the impugned action of Opposite Parties 1 to 6 is viewed, it is seen that there is nothing inherently wrong in the TIA constituting the TEC to examine the representation of Opposite Party No.7 against its initial disqualification. No doubt one of the essential conditions of the DTCN was the evidence of ownership of machinery in terms of Clause 10 read with Clause 122 (c) thereof. The TEC was comprised of four technical experts and one financial expert. 21. The entertaining of such a representation by the TIA and requiring an expert body to examine it, is very different from High Court itself ordering such re-evaluation of the financial bids have been opened. That was the factual situation in the context of which in Tamilnadu Generation and Distribution Corporation Limited (supra) the following observations were made by the Supreme Court: '37. Before parting with the case we are constrained to add something. We do so with immense pain. That was the factual situation in the context of which in Tamilnadu Generation and Distribution Corporation Limited (supra) the following observations were made by the Supreme Court: '37. Before parting with the case we are constrained to add something. We do so with immense pain. The respondent, before finalization of the financial bid submitted series of representations and seeing the silence of the owner it knocked at the doors of the writ court which directed for consideration of the representations. We are disposed to think that the High Court at that stage should have exercised caution. If the courts would exercise power of judicial review in such a manner it is most likely to cause confusion and also bring jeopardy in public interest. An aggrieved party can approach the Court at the appropriate stage, not when the bids are being considered. We do not intend to specify. It is appreciable the owner in certain kind of tenders call the bidders for negotiations to show fairness transparently. But the present case is not one of such nature. Once the price bid was opened, a bidder could not have submitted representations on his own and seek a mandamus from the Court to take certain aspects into consideration. We have stressed this aspect only to highlight the role of the Court keeping in mind the established principle of restraint.' 22. A careful perusal of the above observations would go to show that in the said case when the representations of the unsuccessful bidder did not elicit any response it approached the High Court which then directed the representation should be considered. This is very different from the TIA itself considering the representation of the unsuccessful bidder. Qualitatively these two exercises are different. While the scope of judicial review in such matters is narrow, and that is what is emphasised by the Supreme Court in the above observations, there can be nothing inherently arbitrary and unreasonable if the representation of the unsuccessful bidder is ordered to be re-evaluated by the TIA by constituting an expert body. This of course would depend on the facts and circumstances of each case. 23. In the present case, it cannot be said that the above procedure adopted by the TIA is arbitrary or unreasonable. It did not happen too long after the technical bids had been opened. This of course would depend on the facts and circumstances of each case. 23. In the present case, it cannot be said that the above procedure adopted by the TIA is arbitrary or unreasonable. It did not happen too long after the technical bids had been opened. No doubt by this time the EMD furnished by Opposite Party No.7 has been returned to it. However, when the events are viewed as a whole, there is not much of a gap between the opening of the technical bids and the reevaluation. In the circumstances, the Court is not persuaded that the procedure adopted was arbitrary or unreasonable. 24. Whether a concrete mixture fitted with weigh bench can be treated on par with one which has an integral weighing bench is best left to the decision of the experts. Likewise whether a Pugmill with accessories for a WM-100 plant should be treated on par with a WM plant is again best left to be decided by the expert body. While it is true that the earlier evaluation of the same experts may have resulted in Opposite Party No.7 being disqualified, that cannot be a decision cast in stone which cannot be reviewed. The TEC appeared to be satisfied with the explanation offered by Opposite Party No.7 that it had offered the same machinery for other works of a similar nature. These are matters best left to expert body and they should be given some play in the joints including the power to review the decision for good reasons. 25. The Court is also unable to accept the submission on behalf of the Petitioner that the action of the TIA in reaccepting the EMD of Opposite Party No.7, after it has been returned, was in violation of the deadlines set by the DTCN. On its part Opposite Party No.7 had stuck to the deadlines and submitted both the EMD and the bid documents well within time. With the TIA reviewing its decision to disqualify the bid of Opposite Party No.7, it was logical that Opposite Party No.7 would have to resubmit the EMD. This cannot be viewed as a violation of the deadline. The Court therefore does not agree with Mr. Mohanty that the decision in Central Coalfields Limited (supra) supports his contention in this regard. 26. This cannot be viewed as a violation of the deadline. The Court therefore does not agree with Mr. Mohanty that the decision in Central Coalfields Limited (supra) supports his contention in this regard. 26. Having examined the other decisions cited, the Court is of the view that the actions of the Opposite Parties 1 to 6 in the present case are not vulnerable to invalidation in the light of the settled legal principles enunciated therein. 27. The Court does not find any ground having been made out for interference with the impugned decisions. The writ petition is dismissed. The interim order stands vacated. There shall be no order as to costs.