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Meghalaya High Court · body

2022 DIGILAW 300 (MEG)

Dharani Geotech Engineers v. State of Meghalaya

2022-11-15

H.S.THANGKHIEW

body2022
JUDGMENT 1. The writ petitioners herein, are aggrieved with the disqualification from the tender bidding process under the Request for Bids (RFB) No. R&I /DAMS/PK-I/DRIP-II/2022-23 dtd. 6/4/2022 for the works of Rehabilitation and Improvement of Umiam StageI, Umiam - Umtru Stage - III, Umiam - Umtru Stage - IV Dams in RiBhoi District and Myntdu Leshka Stage-I Dam in West Jaintia Hills District of Meghalaya, under DRIP-II (Package - I) by virtue of the notice notification being No. CE/C/HP&HC/DRIP-II/T98(C)/2022/188 dtd. 20/10/2022 issued by the Chief Engineer (C), Hydro Planning & Hydro Construction, Meghalaya Power Generation Corporation Limited, Shillong, being the Respondent No. 3. The challenge to disqualification is on the ground that the writ petitioner had been disqualified from the bidding, without any application of mind and in an arbitrary manner. 2. The brief background facts are that, pursuant to a notice inviting tender dtd. 5/4/2022, and Request for Bids (RFB) dtd. 6/4/2022, the writ petitioners had submitted their bid, which included, response to queries, bid capacity details, and other materials to substantiate the fact that, requisite amount of drilling work, had earlier been executed by the writ petitioner No. 1, which made the writ petitioners technically qualified and eligible. However, by letter dtd. 10/10/2022, which is impugned herein, the petitioners had been informed that, their technical bid had been found to be non-responsive and technically not qualified, which has occasioned the instant writ petition. 3. Mr. K. Saha, learned counsel for the petitioners in his submissions, had at the initial stage, when the matter was taken up, stressed on the point that, there was no comprehensible reason for the technical bid of the petitioners to be rejected, inasmuch as, enough material in the form of the contracts/work earlier executed by the writ petitioner No. 1, had been furnished. In this context, the learned counsel had taken the Court, through the varied documents to substantiate the contention, as to the petitioners, meeting the qualifying criteria. This Court, then by order dtd. 10/11/2022, on the prayer of the Advocate General appearing on behalf of the respondents, fixed the matter today, while granting a limited status quo till the next date, on the settlement of the contract. The respondents were also allowed to bring on record documents in support of their case. 4. This Court, then by order dtd. 10/11/2022, on the prayer of the Advocate General appearing on behalf of the respondents, fixed the matter today, while granting a limited status quo till the next date, on the settlement of the contract. The respondents were also allowed to bring on record documents in support of their case. 4. The respondents have filed an affidavit, today itself, in reply to the writ petition and have raised objections on the ground of maintainability, absence of legal right, presence of disputed questions of facts, amongst others. 5. The learned counsel for the petitioners, on this affidavit, submits that a document annexed therein, that is, a letter dtd. 13/9/2022, (Annexure - R/4 to the Affidavit), has changed the entire complexion of the matter, as this communication reveals that the technical bid of the petitioner was rejected, on the inputs by an entity known as CPMU (Central Project Management Unit), for dam rehabilitation and improvement. The learned counsel has strenuously argued that, it is noted in the letter that, the Bid Evaluation Committee of the respondent No. 3, had found the petitioners' bid technically responsive and qualified, as per the requirements and had accordingly recommended the same for acceptance, but however, on the inputs so received from the CPMU, which has been noted in the said letter, the bid was disqualified. 6. The learned counsel for the petitioners has seriously questioned the role of the CPMU, in the evaluation process and has taken this Court, to Clause - 1.8 of the Works Requirements document (Page - 239 of the writ petition), to demonstrate that the CPMU, has been entrusted as a 3rd party only for construction supervision, and quality assessment, at the third level only, that is, after the contract have been awarded and the work commenced. It is further submitted that, in Clauses - 30 and 31 of the ITB (Instruction to Bidders), which deals with evaluation of the technical parts of bids, there is no mention of CPMU, at all, and it is provided in Clause - 31.3, that it is the Employer, who shall examine the technical aspects of the bid, and to determine whether the said bid is responsive or not. 7. The learned counsel, then refers to the impugned notice dtd. 20/10/2022, and submits that the said notice has been lifted ad verbatim, from the contents of the letter dtd. 7. The learned counsel, then refers to the impugned notice dtd. 20/10/2022, and submits that the said notice has been lifted ad verbatim, from the contents of the letter dtd. 13/9/2022, which contains the inputs of the CPMU, as far as the bid of the petitioners are concerned. This shows, he submits that the disqualification of the petitioners, is based on an extraneous factor, foreign to the Bid Evaluation Process, which violates the conditions laid down in the tender documents. It is further submitted that, CPMU may be a stake holder, but nowhere does it come, within the definition of Employer. The learned counsel has also contended that, the records reflect the undisputed position of the petitioners being found eligible and qualified by the prescribed Bid Evaluation Process, but however, have been ousted from contention, simply on the basis of the inputs of the CPMU, which is not part of the said process. It is further argued that, the observation of the CPMU, that the petitioners lack drilling capability and are only qualified for grouting work is misplaced, inasmuch as, the earlier project executed by the petitioner No. 1, in association with a certain M/S APC, Drilling and Construction, comprised both Drilling and Grouting work, for which a certificate dtd. 29/6/2022, had been issued by the NTPC Ltd., showing successful completion of the project. 8. Mr. K. Saha, learned counsel then submits that, the instant case is a fit case for judicial review of the decision making process, as severe injustice has been caused, which militates against the settled position of law as laid down, by various judicial pronouncements of the Hon'ble Supreme Court, in such leading cases as, the Tata Cellular case (1994) 6 SCC 651 . The learned counsel has also sought the distinguish, the decision rendered in the case of N.G. Projects Limited vs. Vinod Kumar Jain reported in (2022) 6 SCC 127 , and submits that, when there is arbitrary exercise of power, or violation of the Principles of Natural Justice, a tender process can be interfered with. In support of this contention, learned counsel has placed reliance on the judgment dtd. 18/5/2022, passed by the Hon'ble Supreme Court in the case of Jai Bholenath Construction vs. The Chief Executive Officer, Zilla Parishad, Nanded & Ors. In support of this contention, learned counsel has placed reliance on the judgment dtd. 18/5/2022, passed by the Hon'ble Supreme Court in the case of Jai Bholenath Construction vs. The Chief Executive Officer, Zilla Parishad, Nanded & Ors. (Civil Appeal No. 4140 of 2022), by the same Bench, that had passed the order in N.G. Projects Limited vs. Vinod Kumar Jain (supra). Learned counsel then closes his submissions, by maintaining that the instant case is a fit case for interference by this Court. 9. The learned Advocate General appearing for the respondents, in reply to the submissions of the learned counsel for the petitioner, has firstly, submitted that the invocation of writ jurisdiction, in such matters, is of limited scope, as it is well settled that, the High Court is not sitting in appeal, or in substitution of the wisdom of the Employer. He submits that the work in question being of extreme public interest, judicial review will not be available or permitted to be invoked to protect private interest, at the cost of public interest, or to decide contractual disputes. On the specific challenge of the petitioners, to disqualification which was solely based on the findings of the CPMU, the learned AG has submitted that the tender evaluation has been done, as per the Instructions to Bidders (ITB), which allows the Employer at Clause - 31.3 and 32.1, to examine the technical aspects of the bids and to determine, whether the eligible bidders have submitted responsive bids, apart from the Employers right to accept or to reject any bid. 10. The learned Advocate General then submits that the evaluation and qualification criteria as prescribed, has been applied to assess the bids and submits that as per Clause 4.2 (a) of the said criteria specific experience has been laid down. Taking this clause into consideration he submits, for contracts which the bidder has participated in a joint venture, only the bidder share by value shall be considered to meet this requirement, which stipulates that similar work such as Drilling Grouting should have been satisfactorily and substantially completed. The learned AG has also referred to Clause 4.2 (b) of the criteria wherein he points out, demands that a minimum construction experience in Drilling of 10,000 Rmt; Grouting of 1130 MT and Concrete Works of 880 Cum, should have been completed in the earlier contract. The learned AG has also referred to Clause 4.2 (b) of the criteria wherein he points out, demands that a minimum construction experience in Drilling of 10,000 Rmt; Grouting of 1130 MT and Concrete Works of 880 Cum, should have been completed in the earlier contract. With regard to the input as received from CPMU, the learned AG submits that CPMU which is a stake holder, saddled with the responsibility of construction supervision and the said organization, under the Government of India in the Ministry of Jal Shakti, Department of Water Resources has a major role to play. The entire project he submits, is under the Dam Rehabilitation and Improvement Project being implemented by the Ministry of Water Resources with assistance from the World Bank and accordingly, the inputs and expertise of the Central Government is also being taken at each stage. He therefore submits that such consultation cannot operate as a bar as CPMU, is not an external agency. 11. The learned AG's next limb of submission, is that the petitioners do not meet the specifications as prescribed and the materials placed, would go to show that the petitioner No. 1 has not completed any Drilling Work of 10,000 Rmt. Reference is then made to a Deed of Joint Undertaking executed by the petitioner No. 1 along with M/S APC, Drilling and Construction in favour of NTPC Limited, wherein he submits the role of the petitioner No. 1, as seen in the said Undertaking is only for Grouting works. He next refers to a Labour License issued on 12. 04.2021 to the petitioner No. 1 and submits that the license so issued is specific only to Grouting of Rock Mass and does not speak about any Drilling work. He further submits that even by a communication dtd. 27/6/2022 from the respondent No. 3 to the petitioner No. 1, specific information has been sought, as to in what capacity, the petitioner had executed the work with M/S APC, Drilling and Construction, whether it was in the capacity of prime contractor, joint venture or sub-contractor. The learned AG submits that the clear requirement of Drilling experience had not been furnished by the petitioners and moreover this entire assessment, was completed before the communication of the disqualification of the technical bid of the petitioners. The learned AG submits that the clear requirement of Drilling experience had not been furnished by the petitioners and moreover this entire assessment, was completed before the communication of the disqualification of the technical bid of the petitioners. He submits that there is no manifest arbitrariness, and in the impugned notice itself, it has been clearly spelt out that the Technical Evaluation Committee and CPMU, had evaluated the bids for the said work and found the bid to be technically not qualified, due to the lack of the key activity of having executed Drilling work. 12. Passing submissions have also been advanced by the learned AG, by referring to Annexure-16 of the writ petition to show that the petitioner No. 1, was not the sole executant of all works in the earlier Project with the NTPC, but that was only an invoicing party for the said work. 13. In support of his submissions, the learned AG has placed reliance on the judgment of N.G. Projects Ltd. (supra), and submits, that it rests upon the authority concerned, to assess as to whether a bidder satisfied the tender conditions. He submits that, in the absence of any illegality or arbitrariness, a project which is urgently required and in public interest, the role of the Court is to interfere to the minimum extent, so that public works projects will not be impeded or stalled. Reliance has also been placed on the following judgments; i) Galaxy Transport Agencies v. New J.K. Roadways (2021) 16 SCC 808 , ii) Uflex Ltd. v. State of T.N. (2022) 1 SCC 165 iii) Jagdish Mandal v. State of Orissa (2007) 14 SCC 517 iv) Bareily Development Authority v. Ajai Pal Singh (1989) 2 SCC 116 v) Sanjay Kumar Jha v. Prakash Chandra Chaudhary (2019) 2 SCC 499 vi) World Tel Inc. v. Union of India (2001) 10 SCC 513 . The above noted decisions it is noted, cover cases concerning the eligibility of the tenderer, public interest to be given primacy, maintainability of writs in commercial matters, amongst others. 14. I have heard learned counsels for the parties. v. Union of India (2001) 10 SCC 513 . The above noted decisions it is noted, cover cases concerning the eligibility of the tenderer, public interest to be given primacy, maintainability of writs in commercial matters, amongst others. 14. I have heard learned counsels for the parties. This Court notes the fact that, judicial review in such commercial matters is to be sparingly exercised, and this position, as has been held in several judgments is to be confined to the questions of legality, as has been held in the case of Tata Cellular (supra), wherein the salient aspects have been enunciated. In the instant case, as observed earlier, the petitioners have alleged, firstly, that their bid has not been given due consideration and secondly, the rejection was solely on the basis of an opinion of an entity, which did not form part of the Bid Evaluation Committee of the respondent No. 3. Accordingly, in the light of these two aspects, this Court is to examine the matter, as to whether, the decision arrived at is vitiated by arbitrariness, illegality and by non-application of mind. 15. A perusal of the eligibility and qualification criteria, at Clauses 4.2(a) and 4.2(b) [Page - 92, 93 and 94 of the writ petition] shows the stipulations as follows, a scanned copy of which is appended, is reproduced herein below: 16. A perusal of the eligibility criteria, clearly reflects that a bidder must meet the requirement of having completed the work prescribed therein, in this case Drilling of 10,000 Rmt, Grouting of 1130 MT and Concrete Works of 880 Cum, jointly or singly to qualify for consideration. The reasons ascribed for rejection of the bid, as detailed in the impugned notice dtd. 20/10/2022, specifically found the petitioner No. 1, to not meet the requirement of 4.2(b). The impugned letter for the sake of convenience is scanned and reproduced herein below: 17. This finding it appears has become the main bone of contention in the instant matter, inasmuch as, as disclosed by letter dtd. 13/9/2022 (Annexure R/4 to the affidavit-in-opposition) is the view expressed by the CPMU, when the matter regarding the bid evaluation had been submitted for concurrence. This finding it appears has become the main bone of contention in the instant matter, inasmuch as, as disclosed by letter dtd. 13/9/2022 (Annexure R/4 to the affidavit-in-opposition) is the view expressed by the CPMU, when the matter regarding the bid evaluation had been submitted for concurrence. This finding, resulted in the rejection of the Technical Bid of the petitioners, as in the same letter itself, it has been indicated that the Bid Evaluation Committee of the respondent No. 3, had found the petitioner No. 1 to be technically qualified. It is necessary therefore, to examine as to whether the decision making process is vitiated due to this input of the CPMU, which did not form part of the Bid Evaluation Committee, and whether the role the CPMU can be said to be beyond the conditions of the ITB in the process of Bid Evaluation, which would amount to the rejection being driven by extraneous considerations. 18. The process of evaluation of the technical parts of the bid, have been laid out at Clauses 30, 31 and 32 of the ITB, (Page - 70 and 71 of the writ petition). Clause 30.1 has stipulated that the criteria and methodology for evaluating the technical bids, would be as per the ITB, Clause 31.3 stipulates that, the Employer shall examine the technical aspects of the bid, and that the same should meet all the requirements as specified in the Work Requirements, and by Clause 32 the Employer is to determine to its satisfaction, whether the eligible bidders meet the qualifying criteria as specified in the Evaluation and Qualification criteria. 19. Clause 1.8 of the Works Requirements (Page - 239 of the writ petition), speaks of the role of CPMU, which as observed earlier functions under the Government of India in the Ministry of Jal Shakti, Department of Water Resources which is the parent department, funding the entire project. As such, it can be easily inferred, that the CPMU is an important constituent, as it has been given a third-party interest to ensure maintenance of standard and quality in the execution of the project. It is noted that the letter of rejection has also made a clear reference to the CPMU, indicating that the decision arrived at, was after inputs from this agency. It is noted that the letter of rejection has also made a clear reference to the CPMU, indicating that the decision arrived at, was after inputs from this agency. The duty of this Court at this juncture therefore, is to examine, as to whether this decision can be said to be vitiated, as the same was also based on the input and assessment of the CPMU. It is relevant to notice that, the input as to the non-responsiveness of the technical bid of the petitioners had been communicated on 13/9/2022, by the Deputy Director of the Central Water Commission, and the impugned letter rejecting the bid of the petitioners as non-responsive and technically not qualified was issued on 20/10/2022. It is important to note that, in the impugned letter itself, which had been reproduced above, clear reference has been made that, the Technical Evaluation Committee and the CPMU, had evaluated the bid of the petitioners, and declared the same as unresponsive. 20. No materials have been brought at this juncture, to show as to who were the constituents of the Bid Evaluation Committee, and whether, in the said evaluation, such consultation in hyper technical matters with other stake holders is barred. Clause 1.8 referred to above, clearly reflects that CPMU is not an external agency, and being in charge of Construction Supervision and Quality Assessment, is therefore, vitally interested in the successful execution of the project. The fact that it is an agency directly under the control of the Department of the Water Resources, which is funding the project, also cannot be ignored. Though in the letter dtd. 13/9/2022, it has been stated that the bid of the petitioners had been found responsive by the Bid Evaluation Committee, however, the very fact that, concurrence was sought from CPMU, points to the fact that, the consultation may perhaps be a part of the entire evaluation process, in arriving at a correct conclusion. 21. This Court sitting in writ jurisdiction, will not enter into the factual aspects, that is, to examine the bid in detail, to ascertain as to whether, the eligibility of the petitioners, as this will be in the realm of adjudicating upon competing claims based on disputed facts. For the present, it is only to discern, as to whether, the impugned order is irrational, perverse, arbitrary or made with an intention to favour another party. For the present, it is only to discern, as to whether, the impugned order is irrational, perverse, arbitrary or made with an intention to favour another party. From the above discussions and observations, this Court finds that no overwhelming materials exist to hold, that the decision making process is vitiated on the counts as aforementioned. As noted in various rulings of the Hon'ble Supreme Court, a government must also have the freedom of contract and be given fair play in the joints, as these are sometimes necessary to arrive at a particular decision, which however, should meet the test of reasonableness. In the instant case, no element of arbitrariness or mala fide is present in the said process to warrant any interference at this stage, moreso, in view of the fact, that the rejection of the bid of the writ petitioners was on the basis of the opinion of experts. 22. Though in the entire process, there might be just a hint of irregularity, however, in the considered view of this Court, this will not tantamount to an irregularity that will disable the entire tender process, especially taking into account, the nature of the project and the larger public interest at hand. The non-joinder of necessary parties, that is, the Department of the Water Resources and the CPMU, who are the project proponents and who have clearly been reflected in the impugned order, has also watered down the scope of relief, if any available to the writ petitioners, apart from the fact, that the Financial Bids were scheduled to be opened on 25/10/2022. 23. Taking into account the totality of the facts and circumstances, no interference is warranted by this Court at this stage, and the writ petition is accordingly dismissed. 24. Parties to bear their own costs.