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2025 DIGILAW 548 (ALL)

Rg Buildwell Engineers Ltd v. State of U. P.

2025-03-27

ANJANI KUMAR MISHRA

body2025
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri Shashi Nandan, learned Senior Advocate, for the petitioner, and Shri Anoop Trivedi, learned Senior Advocate for the Prayagraj Municipal Corporation and Shri Devansh Misra learned counsel for respondent No.3. 2. The petitioner, by means of this petition, inter alia, seeks a writ of certiorari for quashing the order Nos. 1722/adhi.abhi/2024 and 1721/adhi.abhi/2024, whereby a contract of three and two stretches respectively for comprehensive integrated road development under the CM-GRIDS scheme phase-1 has been awarded to the respondent No.3. 3. These contracts were labelled PKG-I and III in a tender floated by Prayagraj Municipal Corporation, which consisted in totality of three packages. The challenge is on the ground that the lowest bidder, the third respondent, was not qualified in terms of the tender document as it did not possess the requisite experience for being eligible for grant of the contract. An additional relief has been sought that these contracts be awarded to the petitioner who is the second lowest bidder and fully eligible. 4. The first contention of Shri Shashi Nandan, learned counsel for the petitioner is that the main criteria to determine eligibility is provided in CONDITIONS FOR NOTICE INVITING TENDERS. Clause 4.5A sub clause (b) of Instructions to Bidders in the Invitation to Bid, reads as follows:- “4.5 A. The bidder shall meet the following minimum Criteria ……………. (b) Experience: Contractor must have successfully completed or substantially completed similar works during last five years ending last day of month previous (i.e. 31.08.2024) to the one in which applications are invited should be either of the following • At least one work - not less than 80% of estimated project cost. (or) • At least two work - not less than 50% of estimated project cost. (or) • At least three work - not less than 40% of estimated project cost. Similar work is defined as, experience in substantial completion of construction of roads in urban areas that includes carriageway, footpaths, streetlights and underground utilities as below: • Carriageway works should include asphalt/, cement concrete surface with necessary base layers. • Footpath works include road works involving paver blocks/kerb stone or concrete pathways with roadside landscapes and likewise. • Underground utilities work, which includes gas, power, sewer, water supply, storm water and telecom works. • Footpath works include road works involving paver blocks/kerb stone or concrete pathways with roadside landscapes and likewise. • Underground utilities work, which includes gas, power, sewer, water supply, storm water and telecom works. > For Power line, the Contractor should have similar experience of shifting of power lines from overhead to underground with a minimum capacity of 11KV. For the work(s) being submitted for consideration as 'similar work experience' the Bidder must obtain 80 marks out of 100 for the qualification as mentioned in technical evaluation in Section 2 and accordingly financial proposal will be opened for those, who qualifies. Wherein, it is mandatory to obtain 15 marks (i.e. within 80 marks) for underground utilities works pertaining to the power line (HT/LT). (Refer Addendum 1 and 2)” 5. He has also referred to page 79 of the paper book, which provide the scoring criteria for technical evaluation of bids. Criteria number 5, for this technical evaluation is “Underground utilities works, which includes gas, power, sewer, water supply, storm water and telecom works with minimum length to total length as mentioned in IFB column 5 . ” 6. Reference has also been made to the note appended on the end of the page titled “Technical evaluation” this bid, which provides that “if the work experience is of lesser than length than mentioned above, marks will be awarded on the basis of pro-rata basis. (Refer Addendum 2). 7. Addendum 2 on page 88 of the paper book at serial number 2 defines work experience in substantial completion of similar works and amongst other things, for power line, the contractor should have similar experience of shifting of power lines from overhead to underground with a minimum capacity of 11 KV. 8. The entry at serial number 6 of Addendum 2 provides experience of minimum length equal to 50% length of package as mentioned in Invitation For Bid column 5. 9. Referring to the technical evaluation done after the technical bids were opened, it is submitted that according to the experience certificate, the requirements i.e., eligibility as per the document was of 2.1 km of shifting of overhead transmission line to underground transmission line, while the experience certificate mentioned that the such similar work performed by respondent No.3 was for 4.60 km. To substantiate these figures, a certificate issued by the Executive Engineer National Highway, PWD Prayagraj on 13.08.2024 was relied upon by M/s Preeti Buildcon Private Limited which was for construction of Jasra Bypass with four lane paved shoulder configuration. 10. The additional submission of Shri Shashi Nandan is that the second certificate relied upon by the respondent only mentions distance, but does not mention whether the line shifted were high tension, 11 KV lines or more. 11. The third submission is that information was required to be furnished in a prescribed format, but the same was not provided in the format specified. 12. The last submission of learned counsel for the petitioner is that the financial bids were opened on 9th October, 2024 and within 15 minutes thereafter, the financial bids were opened and the contract awarded to the respondent No.3. 13. In this regard, reference has been made paragraph 12 of the writ petition, which reads as follows:- “12. That as per clause-23 of the Instruction to Bidders (ITB) it is provided that the financial bid should have been opened on 21st day of the opening of the technical bid and the date, time and venue of the opening of the financial bid ought to have been communicated to the bidders before it is opened, but no such efforts were initiated by the respondent No.2 inasmuch as the financial bids were opened in a hurried manner within 15 minutes for (PKG-I) (PNN/CMG-01) and within 5 minutes for (PKG-III) (PNN/CMG-03) from the time of technical evaluation summary updation on E-Portal on 09.10.2024 at 2.51 PM and 3.24 PM respectively. The clause 23.3 and 23.4 is quoted herein below:- Reference has also been made to page 33, which is supplement to the request for proposal and therefore there was evaluation of clause nine of the conditions for notice and in inviting tenders, which reads as follows :- “………….. 23.3. The "Technical Bid" shall be opened at the stipulated date and time. 23.4. (i) Subject to confirmation of the bid security by the issuing Bank, the bids accompanied with valid bid security will be taken up for evaluation with respect to qualification information as per Section 1. (ii). During evaluation if required, the bidder will be asked in writing to clarify his technical bid, if necessary. (iii). 23.4. (i) Subject to confirmation of the bid security by the issuing Bank, the bids accompanied with valid bid security will be taken up for evaluation with respect to qualification information as per Section 1. (ii). During evaluation if required, the bidder will be asked in writing to clarify his technical bid, if necessary. (iii). The bidders will respond in not more than 3 days (by email only) of issue of the clarification letter, which will also indicate the date, time and venue of opening of the Financial Bid (usually on the 21st day of opening of the Technical Bid). (iv). Immediately (usually within 3 or 4 days), on receipt of these clarifications the Evaluation Committee will finalize the list of responsive bidders whose financial bids are eligible for consideration." 14. Sri Anoop Trivedi, learned Senior Advocate appearing for the second respondent has submitted that the advertisement inviting tenders was for 3 works referring to paragraph 7 of the petition. The three works (packages) are in paragraph 7 of the writ petition. PKG-II which was awarded to the second respondent and PKG-I and III which allotted to third respondent and it is these two, which are impugned. 15. It is also submitted that the bid of the respondent No.3 in this regard, was 10% below than the reserve price while the bid offered by the petitioner was only 0.05% below than the reserve price. 16. It is also, referring to various connections and document appended to the petition, submitted that as per the documents furnished by the respondent No.3, fulfilled the eligibility criteria and therefore states that its bid was far lower than that of the petitioner and that PKG-III was awarded to the respondent. 17. It is also submitted that technical bids were opened on 3rd October and not on 9th October as is alleged by the petitioner after a corrigendum was issued by the second respondent. The technical bids were available for perusal by all and sundry after their being uploaded on website. The petitioner had raised an objection regarding the ineligibility of the third respondent, on 10 th October, after the financial bids had been opened. This objection was highly belated and in any case not bona fide. 18. The technical bids were available for perusal by all and sundry after their being uploaded on website. The petitioner had raised an objection regarding the ineligibility of the third respondent, on 10 th October, after the financial bids had been opened. This objection was highly belated and in any case not bona fide. 18. It is also in the context of the argument, submitted that contention raised on behalf of the petitioner that the financial bids were opened for 15 minutes is actually incorrect. It is only that the financial evaluation of the technical bid was uploaded on the website on 9 th October and thereafter, the financial bids were opened, and the contract settled. 19. In any case, it is stated that the dispute cannot be raised by the petitioner regarding the procedure followed because petitioner has been awarded contract of one of the three packages up for tendering, by means of the same process. He has also admitted that since an objection regarding the eligibility of the respondent No.3 was raised, the certificates furnished by it were sought to be duly verified from the authorities who had issued them, and therefore, the writ petition must necessarily fail. 20. Shri Devansh Mishra, learned counsel appearing for the respondent No.3 has largely adopted the arguments of Shri Anoop Trivedi. He has also submitted that reference to the reply submitted by the third respondent on 09.10.2024 as also a reminder letter with the experience certificate issued by the executive engineer, Purvanchal Vidhyut Nirman Nigam Limited, appended thereto. 21. Both the counsel appearing for the respondent have vehemently controverted the submissions of learned counsel for the petitioner that the information required to be furnished by the third respondent had not been furnished in the format prescribed in the IFB. 22. We have considered the submissions of learned counsel for the parties and perused the record. 23. From the submissions made and perusal of the documents referred to by the parties, it is no doubt true that the experience certificate filed by the third respondent along with the bid documents show that the experience of the petitioner of shifting over head lines to underground lines is of a length of more than 4 kms. 23. From the submissions made and perusal of the documents referred to by the parties, it is no doubt true that the experience certificate filed by the third respondent along with the bid documents show that the experience of the petitioner of shifting over head lines to underground lines is of a length of more than 4 kms. However, the subsequent documents obtained when this certificate was sought to be verified by the second respondent, create a doubt about the length of lines shifted as mentioned in the experience certificate filed with the bid documents. This confusion has arisen because on the complaint of the petitioner, a verification exercise was undertaken by the second respondent. 24. Under the circumstances, we are constrained to hold that the document referred to by the parties do not appear to be conclusive as regards the requisite work experience of the respondent No.3 insofar as the length of the overhead 11KVA and above transmission lines shifted underground. 25. The contention of Shri Anoop Trivedi and Shri Devansh Misra is that this court should summon the original records from the electricity department to clear the air and to return at definite finding as to whether the respondent No.3 fulfils the eligibility criteria or not. 26. We are not inclined to accede to the request of learned counsel for the respondents. An exercise for verification of the experience certificate, furnished by the respondent No.3, was initiated by the second respondent, no doubt on a complaint by the petitioner. Once such an exercise was undertaken, the exercise should be completed and pursued to the hilt by the second respondent and thereby the second respondent should necessarily arrive at a definite conclusion. The respondents especially respondent No. 2 cannot be permitted to shift its responsibility on this Court. 27. In any case, this Court is not a court of enquiry and is not required to enter into disputed questions of fact. The question of eligibility of the respondent No.3 for award of the contract in terms of the request for proposal and the tender, is to be determined by the second respondent, itself. 28. 27. In any case, this Court is not a court of enquiry and is not required to enter into disputed questions of fact. The question of eligibility of the respondent No.3 for award of the contract in terms of the request for proposal and the tender, is to be determined by the second respondent, itself. 28. Moreover, in view of the submission of learned counsel for the respondents, that this Court may summon relevant documents from the relevant authorities and examine the same to determine as to whether the respondent No.3 is technically qualified or not clearly indicates that the second respondent is itself, not sure on this point. The contract for two packages stands awarded to the third respondent. 29. It is not the duty of this Court exercising jurisdiction under Article 226 of the Constitution to collect evidence and appreciate the same and thereafter, record a finding of the fact. At the first instance, this exercise necessarily has to be conducted by the second respondent and thereafter, to record as to whether respondent No.3 is technically qualified or not. Despite initiating this process, the respondent No.2 has failed to conclude the exercise and now wishes to shift the onus of the exercise upon this Court. 30. Since this court cannot enter into disputed question of facts, we, in the facts and circumstances, direct that the exercise initiated by the second respondent to verify the experience certificate of the third respondent be proceeded with and concluded as soon as possible. It is therefore, also provided that the contract awarded to the third respondent shall remain in abeyance till such time this exercise has been concluded by the second respondent. 31. Once the issue of eligibility has been determined by the second respondent, proper orders shall be passed as regards the contract awarded to the respondent No.3, which shall abide by such decision. 32. Needless to say, once a final decision has been taken, it is always open for the party aggrieved to challenge the same before the appropriate forum. 33. In view of the afore-noted directions and subject to them, this petition is allowed to the extent indicated above.