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2022 DIGILAW 176 (GAU)

Asean Agency PO/PS v. State of AP

2022-02-22

NANI TAGIA

body2022
JUDGMENT : Heard Mr. N. Ratan, learned counsel for the petitioner. Also heard Mr. S. Tapin, learned Senior Government Advocate representing respondent Nos. 1 to 6 and Mr. N. Pada, learned counsel appearing for respondent No. 8. 2. This writ petition is directed against the letter, dated 28.08.2020 written to the Chief Engineer(CZ-B), Arunachal Pradesh, Pasighat by the Under Secretary, PWD, Government of Arunachal Pradesh, Itanagar, vide No. SPWD/PE-06/NESIDS/CZ-B/2019-2020(Pt)/188 whereby, it has been conveyed that the tender documents of the petitioner for the work “C/o Road from Rumgong ADC Hq to connect Kaying EAC Hq (64.00 km) (Phase-I) (Molom to Bogne Village 23.00 km) in Siang District of Arunachal Pradesh”, which was recommended for approval has not been approved by the government and directed the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat to call for a fresh tender. Also prayed for is a writ in the nature of mandamus directing the respondent authorities to award the work to the petitioner as per the recommendation, dated 17.02.2020, made by the Chief Engineer (CZ-B), PWD, Arunachal Pradesh, Pasighat. 3. The facts leading to filing of the present writ petition, briefly stated, are as follows; Invitation for Bid (IFB) was issued by the Executive Engineer, Rumgong Division, PWD, Arunachal Pradesh vide NIT No. EE/RUM/NESIDS/E-NIT/04, inviting online items rate bids from approved and eligible Contractors of CPWD and those appropriate list of M.E.S, BSNL and RAILWAY and State PWD Class-1 A (B&R) Civil categories in Arunachal Pradesh for the work “Construction of Road from Rumgong ADC Hq to connect Kaying EAC Hq 64 km (Ph-I) (Molom to Bogne village 23.00 Km in Siang District of Arunachal Pradesh)”. Availability of tender paper online for bidders was indicated to be on and from 22.07.2019 (1330 hours) to 08.08.2019 (1500 hours). Start and end date and time for online submission of bids was indicated as 29.07.2019 (1500 hours) to 08.08.2019 (1600 hours) and the date and time for opening of the bid was 09.08.2019 (1100 hours) in the IFB. Pursuant to the aforesaid IFB, dated 21.07.2019, as many as seven bids were submitted. Upon evaluation of the bids submitted by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat along with Superintending Surveyor of Works, Office of CE, CZ-B, PWD, Pasighat and two Surveyor of Works, Office of CE, CZ-B, PWD, Pasighat, the bid of the petitioner was found to be substantially responsive and considered as qualified bidder. Upon evaluation of the bids submitted by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat along with Superintending Surveyor of Works, Office of CE, CZ-B, PWD, Pasighat and two Surveyor of Works, Office of CE, CZ-B, PWD, Pasighat, the bid of the petitioner was found to be substantially responsive and considered as qualified bidder. Thereafter, the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat, vide letter dated 17.02.2020 had submitted the tender paper of the petitioner to the Commissioner, PWD, Government of Arunachal Pradesh for his approval. The Under Secretary, PWD, Government of Arunachal Pradesh, however, in reply to the letter, dated 17.02.2020, by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat vide No. CEAP(CZ-B)/W-4/NESIDS/BC/RD/DraftNIT/3/2019-20/6188, by the impugned letter, dated 28.08.2020, instead of approving the bid of the petitioner as recommended, by the impugned letter, dated 28.08.2020, has written to the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat to call for a fresh tender, while informing that the bid of the petitioner has not been approved by the Commissioner, PWD, Government of Arunachal Pradesh. 4. Mr. Ratan, learned counsel for the petitioner by referring to instruction issued to the bidder (ITB), more particularly, Clause 23.1, 26.1 & 2, 29.1, 31.1 and 32.1, has argued that the employer who has been defined in the ITB as the Chief Engineer, Central Zone, PWD will open all the bid received in the presence of the bidders or their representative, on a date and place specified and proceed to evaluate the technical bid by determining whether the bid meets the eligibility criteria; has been properly singed; is accompanied by the required securities and substantially responsive to the requirement of the bidding documents. Thereafter, responsiveness of the financial bid shall be further determined by the employer, in the manner indicated in Clause 26.2. After the financial bids are determined in accordance with Clause 26.2, the employer shall proceed to award the work subject to the approval/acceptance given by the employer in terms of the Clause 32.1. Thereafter, responsiveness of the financial bid shall be further determined by the employer, in the manner indicated in Clause 26.2. After the financial bids are determined in accordance with Clause 26.2, the employer shall proceed to award the work subject to the approval/acceptance given by the employer in terms of the Clause 32.1. The learned counsel for the petitioner contends that though the employer ought to have given its approval/acceptance to the recommendation of the petitioners bid made by the employer namely, the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat, vide his letter, dated 17.02.2020, the impugned rejection order and the direction for calling of a fresh tender in the matter has been issued pursuant to a fresh evaluation made by the Chief Engineer (SID & P), PWD, Arunachal Pradesh, dated 02.07.2020, whereby the petitioners bid was found to be not fulfilling two terms and conditions of the IFB which are; i. Wrong statement regarding existing commitment was given as there is one ongoing scheme under PWD, Roing Division at the time of the bid; and ii. Numbers of key technical personal is given as two whereas stipulated requirement is three numbers. Learned counsel for the petitioner contends that the second evaluation made by the Chief Engineer (SID&P), PWD which is the basis for issuance of the impugned letter, dated 28.08.2020, is not only not contemplated under the ITB but the same has been done at the behest of respondent No. 8, the Member of Legislative Assembly of 32nd Rumgong (ST) Assembly Constituency, who had written UO Note, dated 17.02.2020, whereby the respondent No. 8 had sought for the cancellation of NIT/IFB published on 21.07.2019 and by the second UO Note, dated 12.05.2020, whereby the respondent No. 8 had impressed upon the authorities to award the work for which the IFB, dated 22.07.2019, was floated to one M/s Tanor Engineering. Learned counsel for the petitioner therefore, argues that the action of the respondent authorities in the instant case in not accepting the bid of the petitioner is illegal and the same has been done at the behest of an authority outside of the tendering authorities for which the impugned letter, dated 28.08.2020, written by the Under Secretary, PWD, Government of Arunachal Pradesh to the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat, is liable to be set aside and quashed. In support of his contentions that any action initiated or taken by the respondent authorities at the behest of an authority outside the tendering authorities vitiates the action of the respondent authorities, Mr. Ratan has placed reliance on a decision of this Court reported in (2015) 5 GLT 182. 5. Mr. S. Tapin, learned Senior Government Advocate representing the State respondents on the other hand by referring to Section 2 Clause 1.4 of ITB submits that the bidder under the said Clause is required to furnish information on bid capacity indicating works for which bids have been submitted and works which are yet to be completed as on the date of his bid. Secondly, in terms of Section 1 of the ITB Clause 4.3(e), 4.5.4; qualifications and experience of key site management and technical personnel proposed for the contract comprising of one principal technical representative with educational qualification of BE Civil + 5 years of experience and two project planning/site/billing engineer with educational qualifications of BE Civil with two years experience or Diploma Civil with 5 years experience is required to be submitted by the bidders. By referring to the first technical evaluation done by the employer namely, the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat along with other Officials named therein, annexed as Annexure-7 A, to the counter affidavit filed by the respondent No. 1 to 6, points out that in so far as the requirement of submissions of existing commitment and ongoing works as is required to be submitted in terms of Section 2 Clause 1.4 of the ITB, the petitioner was found to have submitted as ‘NIL’ whereas the petitioner at the time of submission of his bid had one ongoing scheme under PWD, Roing Division. In so far as the requirement of submission of key personnel available as is required to be submitted in terms of Section 1 Clause 4.3(e) and 4.5.4 of the ITB, it was shown to have been submitted. In so far as the requirement of submission of key personnel available as is required to be submitted in terms of Section 1 Clause 4.3(e) and 4.5.4 of the ITB, it was shown to have been submitted. Though in the first technical evaluation committee evaluated by the employer namely the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat along with other officials named therein, found the petitioners bid to have complied with the conditions stipulated in Section 2 Clause 1.4 and Section 1 Clause 4.3(e) and 4.5.4, in the subsequent evaluation of bid made by the Chief Engineer (SID&P), PWD, the Section 2 Clause 1.4 and Section 1 Clause 4.3e and 4.5.4 was found to have not been complied with by the petitioner. Mr. Tapin, learned Senior Government Advocate, therefore, argues that since the requirement of bidders having no ongoing scheme pending as well as the required key personnel, three in numbers, as provided in the ITB was not complied with by the petitioner, the petitioner was found to be not eligible to be awarded the work, resulting the respondent authorities to issue the impugned letter, dated 28.08.2020, which was a justified decision taken by the respondent authorities to call for a fresh tender in the absence of any eligible bidder. He further submits that though the respondent No. 8 had written a UO Note to award the work in question to M/s Tanor Engineering, the respondent authorities were not influenced by the UO Note written by the respondent No. 8 and the decision taken in the matter by the impugned letter, dated 28.08.2020, is a justified decision in the facts and circumstances of the case, independent of any influence by the UO Note of the respondent No. 8. Mr. Tapin, learned Senior Government Advocate therefore, submits that no interference to the impugned letter, dated 28.08.2020, is called for in the instant case and the writ petition is liable to be dismissed. 6. Mr. Mr. Tapin, learned Senior Government Advocate therefore, submits that no interference to the impugned letter, dated 28.08.2020, is called for in the instant case and the writ petition is liable to be dismissed. 6. Mr. N. Pada, learned counsel appearing for the respondent No. 8, by referring to the additional affidavit filed by the respondent No. 8, submits that the petitioner is a Class-1 contractor enlisted under Arunachal Pradesh Enlistment of Contractor in Works Department Rule, 2008 and the Class-1(B&R) Contractor under Civil category are not qualified and eligible to participate in the IFB issued by the Executive Engineer, Rumgong Division, PWD as the invitation, sought for, for the work in question is from the Class-1A(B&R) Civil category Contractor of the State PWD apart from appropriate list of contractors of M.E.S, BSNL and RAILWAY. Mr. Pada, learned counsel for the respondent No. 8 therefore, submits that since the petitioner is not eligible to participate in terms of the IFB, the writ petition does not merit further consideration and the same is liable to the dismissed at the threshold. 7. In so far as the arguments advanced on behalf of the respondents that the petitioner did not disclose the existing commitment which was required to be disclosed as per the ITB, whereas the petitioner had an existing commitment with the PWD Roing Division, Mr. Ratan, learned counsel for the petitioner in reply submits that the petitioner had submitted his bid as an SS Class Contractor under BRO and since the petitioner had no existing commitment as SS Class Contractor under BRO, the petitioner rightly mentioned in the bid that he does not have any existing commitment. In so far as the argument advanced on behalf of the respondents that the petitioner did not submit the requisite key personnel as is required to be submitted as provided in the ITB, Mr. Ratan, learned counsel, in reply, by referring to the Annexure-1 of the ITB submits that it is not a mandatory requirement for submission of the requisite number of key technical personnel provided there under and in the event of requisite number of key technical personnel is not submitted by the bidder, there is a provision therein itself for deduction to be made per month on pro-rata basis from the contractors bid as provided in Annexure-3 of the ITB. He further submits that if there is a non-compliance in the submission of requisite key technical personnel or there is a defect in the submission of the requisite number of key personnel, there is provision under Clause 23.4 to rectify the defects. He, therefore, submits that the two grounds on which the bid of the petitioner has not been approved/accepted is nonexistent and therefore, impugned letter, dated 28.08.2020, is liable to be set aside with a further direction to the respondent authorities to consider the bid submitted by the petitioner for its approval. In support of his contentions that the requirement of submitting a requisite key technical personnel as provided in the ITB is not a mandatory conditions, the learned counsel has relied on a decision of the Supreme Court rendered in Poddar Steel Corporation Vs. Ganesh Engineering Works and others, reported in (1991) 3 SCC 273 . 8. Rival submission advanced by the learned counsel appearing for the parties have received due consideration of this Court and the materials made available on record have been perused. 9. Upon hearing the learned counsel for the contesting parties and on perusal of the rival pleadings of the contesting parties, it is noticed that the Invitation for Bids (IFB) was issued by the Executive Engineer, Rumgong Division, PWD, Arunachal Pradesh, the respondent No. 6 herein, vide NIT No. EE/RUM/NESIDS/E-NIT/04, inviting online item rate bids from approved and eligible Contractors of CPWD and those appropriate list of M.E.S, BSNL and RAILWAY and State PWD Class-1 A (B&R) Civil categories in Arunachal Pradesh for the work “Construction of Road from Rumgong ADC Hq to connect Kaying EAC Hq 64 km (Ph-I) (Molom to Bogne village 23.00 Km in Siang District of Arunachal Pradesh)”. Availability of tender papers online for bidders was indicated to be on and from 22.07.2019 (1330 hours) to 08.08.2019 (1500 hours). Start and end date and time for online submission of bids was indicated as 29.07.2019 (1500 hours) to 08.08.2019 (1600 hours) and the date and time for opening of the bid was 09.08.2019 (1100 hours) in the IFB. 10. Along with the aforesaid IFB, Instructions To Bidders (ITB) containing as many as seven sections was issued to the bidders to be followed while submitting the bid. Pursuant thereto, the petitioner along with six other bidders had submitted the bid. 10. Along with the aforesaid IFB, Instructions To Bidders (ITB) containing as many as seven sections was issued to the bidders to be followed while submitting the bid. Pursuant thereto, the petitioner along with six other bidders had submitted the bid. The bids were thereafter, evaluated by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat along with Superintending Surveyor of Works, Office of the CE(CZ-B), PWD, Arunachal Pradesh, Pasighat and two Surveyor of Works, Office of the CE(CZ-B), PWD, Arunachal Pradesh, Pasighat. In the said evaluation of the technical bid, the bid of M/s ATW Indian Private Limited and the bid of the petitioner were found substantially responsive and considered as qualified bidders. On the basis of the technical evaluation made thereto, the Chief Engineer (CZ-B), PWD, Arunachal Pradesh, Pasighat by his letter dated 17.02.2020, vide No. CEAP(CZ-B)/W-4/NESIDS/BC/RD/DraftNIT/3/2019-20/6188, had forwarded the bid of the petitioner to the Commissioner, PWD, Government of Arunachal Pradesh. While forwarding the tender papers of both the firms, found to be responsive, the bid of the petitioner was recommended for approval by the competent authority on the ground that the petitioner’s bid has been found to be the lowest. In the meanwhile, on receipt of U O Notes dated 17.02.2020 and 12.05.2020 written by the Member of Legislative Assembly of 32nd Rumgong Assembly Constituency, an exercise was undertaken in the Department whereby the Chief Engineer (SID&P), PWD had re-evaluated the entire seven bids submitted and in the process of reevaluation, it was found in respect of the petitioner’s bid that the petitioner was found to have provided wrong information in the bid by not disclosing the existing commitment which the petitioner had with the PWD, Roing Division. It was also found that the petitioner had submitted only two numbers of key technical personnel whereas the bidder was required to furnish three key technical personnel as per the ITB. The said finding by the Chief Engineer (SID&P), PWD was recorded on 02.07.2020. The impugned letter, dated 28.08.2020, thereafter, was written by the Under Secretary, PWD, Government of Arunachal Pradesh to the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat, intimating the Chief Engineer(CZ-B), PWD that the bid of the petitioner has not been approved by the Government and a decision has been taken for calling of a fresh tender. 11. The impugned letter, dated 28.08.2020, thereafter, was written by the Under Secretary, PWD, Government of Arunachal Pradesh to the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat, intimating the Chief Engineer(CZ-B), PWD that the bid of the petitioner has not been approved by the Government and a decision has been taken for calling of a fresh tender. 11. The two U O Notes written by the respondent No. 8, Member of the Legislative Assembly of 32nd Rumgong Assembly Constituency needs mention, at this stage. By the U O Note, dated 17.02.2020, the respondent No. 8 had sought for cancellation of the tender process and for calling of a fresh tender; whereas, by the second U O Note, dated 12.05.2020, the respondent No. 8 had sought for awarding the work to M/s Tanor Engineering. 12. From Section 1 of the ITB issued along with IFB, it is noticed that after the bid is submitted, the same has to be evaluated by the employer. It is the employer who is required to evaluate the bid submitted for its determination of responsiveness as provided under Clause 26.1, 2 & 3. The employer has been indicated to be the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat as is evident from Section 1 Clause 1.1 read with appendix to ITB. After the responsiveness of the bid has been determination by the employer under Clause 26, the employer has again reserved the right to accept or reject the bid under Clause 32.1. The employer herein again would be the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat as discussed herein above. 13. In the instant case, as has been noticed above, it is found that the evaluation of the bid submitted pursuant to the IFB was made by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat along with SSW and two ASWs of the Office of the CE, CZ-B, PWD, Arunachal Pradesh, Pasighat. Since the evaluation of the bid was carried out not by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat alone but there included three other Officials named therein of the Office of the CE(CZ-B), PWD, Arunachal Pradesh, Pasighat, the evaluation made in the instant case is found to be contrary to what has been provided in ITB. Since the evaluation of the bid was carried out not by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat alone but there included three other Officials named therein of the Office of the CE(CZ-B), PWD, Arunachal Pradesh, Pasighat, the evaluation made in the instant case is found to be contrary to what has been provided in ITB. After the evaluation of the bid was made not by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat alone but along with three other officials named therein, the two bids found responsive was forwarded to the Commissioner, PWD, Government of Arunachal Pradesh, for approval of the bid of the petitioner by a letter, dated 17.02.2020, written by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat, though the ITB provides that it is the employer namely, the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat himself, who had reserved the right to accept or reject the bid. In between 17.02.2020, which is the date on which letter was written by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat to the Commissioner, PWD, Government of Arunachal Pradesh for approval of the bid of the petitioner and the impugned letter, dated 28.08.2020, written by the Under Secretary to the PWD, to the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat, it is noticed that another evaluation of the bid submitted by the bidders was undertaken by the Chief Engineer (SID&P), PWD which appears to have been done after two U O Notes, dated 17.02.2020 and 12.05.2020, was received from the respondent No. 8. In yet another evaluation of the bid undertaken by the Chief Engineer (SID & P), PWD, the findings recorded in so far as the petitioner is concerned is contrary to the findings recorded in the first evaluation of the technical bid made by the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat along with three others officials as discussed herein above. Under the ITB, after the responsiveness of the bids are determined by the employer, there is no further provisions to undertake yet another evaluation of the bids, whose responsiveness have already been determined by the employer as per Section 1 Clause 26 of the ITB. The second evaluation made by the Chief Engineer (SID&P), PWD is therefore, again found to be contrary to what is provided under the ITB. The second evaluation made by the Chief Engineer (SID&P), PWD is therefore, again found to be contrary to what is provided under the ITB. From the discussion made herein above, it is now evident that the manner in which evaluation of the bid submitted by all the bidders have been made and the second evaluation undertaken by the Chief Engineer (SID&P), PWD have not been made in accordance with the ITB. 14. Settlement of a tender is to be made in accordance with the terms and conditions notified in the IFB and the ITB issued, pursuant to the IFB notified. In the instant case, having found that the evaluation of the bids submitted by the bidders pursuant to the IFB, dated 21.07.2019, and the ITB issued pursuant thereto, and also the impugned letter, dated 28.08.2020, written by the Under Secretary, PWD to the Chief Engineer(CZ-B), PWD, Arunachal Pradesh, Pasighat, is on the basis of the evaluation of the bids and re-evaluation of the bids undertaken by the respondent authorities contrary to what has been prescribed under the IFB and ITB, the impugned letter, dated 28.08.2020, is unsustainable in law and the same is liable to be set aside and quashed. Accordingly, impugned letter, dated 28.08.2020, written to Chief Engineer(CZ-B), Arunachal Pradesh, Pasighat by the Under Secretary, PWD, Government of Arunachal Pradesh, Itanagar, vide No. SPWD/PE-06/NESIDS/CZ-B/2019-2020(Pt)/188, is hereby set aside and quashed. Consequent upon the setting aside and quashing of the letter, dated 28.08.2020, written to the Chief Engineer, CZB, PWD, Arunachal Pradesh, Pasighat by the Under Secretary, PWD, Government of Arunachal Pradesh, the letter dated 17.02.2020, written by the Chief Engineer (CZ-B), PWD, Pasighat to the Commissioner, PWD, vide No. CEAP(CZ-B)/W-4/NESIDS/BC/RD/DraftNIT/3/2019-20 /6188 is also set aside and quashed. 15. Considering the fact that the IFB issued, on 21.07.2019, by the Executive Engineer, PWD, Rumgong Division, has not been concluded in the manner it has been indicated in the IFB and ITB issued pursuant thereto, it is considered appropriate to remand the matter back to the respondent authorities to finalize the IFB, dated 21.07.2019, issued by the Executive Engineer, PWD, Rumgong Division, Arunachal Pradesh, vide NIT No. EE/RUM/NESIDS/E-NIT/04, in accordance with the IFB and ITB issued pursuant thereto, by considering afresh the bid of the petitioner in the manner indicated above, as none of the bidders except the petitioner have approached this Court. 16. It is ordered accordingly. 17. 16. It is ordered accordingly. 17. The writ petition stands allowed to the extent indicated above.