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2023 DIGILAW 1297 (RAJ)

Dilip Buildcon Ltd. v. State of Rajasthan

2023-07-05

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. These writ petitions under Article 226 of the Constitution of India have been preferred claiming the following reliefs: S.B. Civil Writ Petition No. 8277/2023: “It is, therefore, prayed that present writ petition may kindly be allowed: (a) By an appropriate writ order or direction the impugned decision dated 31.5.2023 (An-12) along with all subsequent/consequential orders/ decisions may kindly be quashed. (b) By an appropriate writ order or direction, the original decision dated 19.5.2023 (An-5) may kindly be restored in its original and the financial bid of the petitioner be considered and evaluated. (c) In the alternative, by an appropriate writ order or direction, the procurement proceedings in tender no. CE/WRD/JDPR/05/2022-2023/Item No. 02, being in violation of RTPP rules 2013, may kindly be quashed. (d) Any other appropriate order or direction which may be deemed just and proper in the circumstances of the case may be passed in favour of the petitioner.” S.B. Civil Writ Petition No. 8307/2023: “It is, therefore, prayed that present writ petition may kindly be allowed: (a) By an appropriate writ order or direction the impugned decision dated 31.5.2023 (An-10) along with all subsequent/consequential orders/decisions may kindly be quashed. (b) By an appropriate writ order or direction, the original decision dated 19.5.2023 (An-5) may kindly be restored in its original and the financial bid of the petitioner be considered and evaluated. (c) In the alternative, by an appropriate writ order or direction, the procurement proceedings in tender no. CE/WRD/JDPR/05/2022-2023/Item No. 01, being in violation of RTPP rules 2013, may kindly be quashed. (d) Any other appropriate order or direction which may be deemed just and proper in the circumstances of the case may be passed in favour of the tender without undertaking any onerous actions.” 2. Brief facts of this case, as noticed by this Court, are that on 25.01.2023, a Notice Inviting Bids was floated by the respondents for construction of Dam across the Sabarmati River for Diversion of Surplus Water of Sabarmati Basin to Jawai Dam near Chak Sandmariya Village, Tehsil Kotra, District Udaipur (Rajasthan) on Engineering, Procurement and Construction (EPC) Single Responsibility Turnkey basis. 3. 3. Learned counsel for the petitioner-Company submitted that on 19.05.2023, the technical bid was opened, and the petitioner- Company as well as one M/s. Om Infra Limited, were declared as Responsive Bidders; one of the bidders (M/s. PES Engineers Private Limited), however, was declared as a Non Responsive Bidder; thus, the financial bid was to be opened, between the two Responsive Bidders, on 24.05.2023. 3.1. Learned counsel further submitted that pursuant to the decision taken by the Chief Engineer & Additional Secretary, Water Resources Department, Rajasthan, Jaipur, on 30.05.2023, in an appeal filed by the Non Responsive Bidder, the respondents have re-determined the technical bid on 31.05.2023, whereby the petitioner-Company was demoted to the category of a Non Responsive Bidder. 3.2. Learned counsel also submitted that in the present case, due adherence to the principles of natural justice was not made by the respondents, as before demoting the petitioner-Company to the category of a Non Responsive Bidder, no opportunity of hearing was afforded to it; even the petitioner-Company was not a party to the aforementioned appeal filed by the Non Responsive Bidder. 3.3. Learned counsel further submitted that the hurried manner, in which the whole process has been completed by the respondents, clearly shows that the same has been done so as to extend undue favour to the blue-eyed persons of the respondents. 3.4. Learned counsel also submitted that the petitioner-Company was complying with all the necessary requisites, as prescribed in the Rajasthan Transparency in Public Procurement Rules, 2013. 4. On the other hand, Mr. Sunil Beniwal, learned Additional Advocate General assisted by Mr. Saransh Vij; Dr. Sachin Acharya, learned Senior Counsel assisted by Ms. Devanshi Saini, appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner-Company, submitted that in accordance with the Bidding Forms (Section IV of the Bid Document), at Page No. 97 of the Paper-book, the Bidder/Both JV partners were required to be profit making in the last seven consecutive financial years. 4.1. Learned counsel have thereafter, taken this Court to Annexure-11, which is a letter dated 29.05.2023 addressed by the petitioner-Company to the Additional Chief Secretary (ACS), Water Resources Department (WRD), Government of Rajasthan, Jaipur; the relevant portion of the said letter, to which the attention of this Court has been drawn, is reproduced as hereunder: “4. 4.1. Learned counsel have thereafter, taken this Court to Annexure-11, which is a letter dated 29.05.2023 addressed by the petitioner-Company to the Additional Chief Secretary (ACS), Water Resources Department (WRD), Government of Rajasthan, Jaipur; the relevant portion of the said letter, to which the attention of this Court has been drawn, is reproduced as hereunder: “4. As such, from the abovementioned, it is clear that it is a standard and customary practice/norm for the infrastructure projects of Government of India and the State of Rajasthan to incorporate the financial eligibility condition for the bidders of being profitable for 3 years out of 5 financial years. Further, it is stated that the Authority is also well aware of such financial eligibility condition. 5. It is also submitted that the occurrence of Covid-19 during the Financial Years of 2020-21 and 2021-22 seriously affected the infrastructure and construction sector of the country. Resultantly, several lockdowns of continuing nature were imposed by the Central Government and various State Governments which had caused a serious financial impediment and hardships on the contractors. Considering the plight of the contractors, the Government was also constrained to provide certain relaxations. 6. Due to above mentioned reason of unprecedented pandemic and continuous lock downs coupled with consecutive monsoon seasons, which severely affected contractors working seasons/Executive Periods of the projects over PAN India, for the financial years of 2020-21 (Covid 1st Wave) and 2021-22 (Covid 2nd Wave), has resulted in the downfall in Profit Margins for most of the Contractors in India (Both in the way of PBT & PAT) for the Financial Year 2021-22. It is worth mentioning that majority of the Companies including Dilip Buildcon Limited have further recovered from the financial stress after the end of Covid period and at present have posted profits in the current financial results. In light of the above and considering the customary and standard practice adopted by the Government of India, Government of Rajasthan and other PSU’s, the Authority is requested to kindly peruse and consider the financial condition stated in the captioned Project RFP’s wherein the condition of a bidder being profitable for last 7 consecutive years is provided.” 4.2. In light of the above and considering the customary and standard practice adopted by the Government of India, Government of Rajasthan and other PSU’s, the Authority is requested to kindly peruse and consider the financial condition stated in the captioned Project RFP’s wherein the condition of a bidder being profitable for last 7 consecutive years is provided.” 4.2. Learned counsel also submitted that it is an admitted position that the petitioner was not a profit making Company in the last seven consecutive financial years, which is also amply clear from the relevant portion of the aforementioned letter of the petitioner-Company, as reproduced hereinabove. 5. After hearing learned counsel for the parties at length as well as carefully examining the record of the case, this Court finds that the condition of the Bidder/Both JV partners to have been profit making in the last seven consecutive financial years was admittedly not fulfilled by the petitioner-Company. 6. Without going into the technicalities and looking into the fact that the matter pertains to a public project i.e. construction of a Dam, this Court arrives at the satisfaction that the petitioner- Company on the face of record does not fulfill the requisite and necessary criteria of being a profit making Company in the last seven consecutive financial years. It is also evident from the aforementioned letter dated 29.05.2023 that by way of the said letter, the petitioner has sought waiver of such condition, on count of Covid-19 pandemic and other adversities. 7. This Court also finds that the aforementioned condition in the Bidding Forms, which is part of the record, is a mandatory condition, and since the petitioner-Company does not fulfill the same, then hearing the case on other propositions of merits would be a futile exercise, because the petitioner before this Court is a Company, who does not fulfill even the basic and mandatory parameter/condition and has been declared as a Non-Responsive Bidder, on the basis of its own admission that it is not a profit making Company in the last seven consecutive financial years. 7.1. 7.1. If the petitioner-Company was complying with all the necessary conditions, then it would have been necessary to hear the matter on the other issues so raised herein, but since the basic and mandatory condition prescribed for the Responsive Bidders was admittedly not fulfilled by the petitioner-Company, this Court does not find it a fit case so as to grant any relief to the petitioner-Company in the instant petitions. 8. Consequently, the present petitions are dismissed. All pending applications stand disposed of.