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M/s. Kamladityya Construction Private Limited, represented by Sunil Kumar Pandey, represented by the Attorney holder of the Company v/s The Union of India represented by Secretary & Others

    WP (C) 702 of 2013

    Decided On, 28 February 2013

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE B.K. SHARMA

    For the Petitioner: H.K. Mahanta, Advocate. For the Respondents: N. Choudhury, SC, NIT.



Judgment Text

Oral:

Sharma, J.

1. Heard Mr. H.K. Mahanta, learned counsel for the petitioner. Also heard Mr. N. Choudhury, learned Standing Counsel, National Institute of Technology, appearing for respondents No. 2 and 3.

2. The petitioner is aggrieved by the particular clause in the NIT in question dated 18.11.2012. By the said NIT, sealed tenders had been invited from the experienced, financially sound contractors / agency. The work involved is construction of 1000 capacity Boys’ Hostel No.9 ad construction of new Library Building at National Institute of Technology (for short NIT), Silchar. The estimated cost is Rs. 128,03,64,669/- with the completion duration fixed at 36 months. The clause against which the grievance has been raised in this writ petition, reads as follows :-

'2.1 Experience of having successfully completed works during last 7 years ending last day of the month previous to the one in which applications are invited ;

(i) …………………..

(ii) …………………….

(iii) One similar works costing not less than the amount equal to 80% of the estimated cost of work.

And

One completed work (either part of above or a separate one) costing not less than the amount equal to 40% of the estimated cost with some Central/State Government Organisation / Central Autonomous Body / Central Public Sector Undertaking in North Eastern States. …………………………'

3. Responding the said NIT, the petitioner, a class-I contractor submitted its tender. The technical bid of the participating contractors was opened on 11.1.2013. According to the petitioner, it is in dark as to whether its tender would be considered at the financial bid stage. Mr. Mahanta, learned counsel for the petitioner, referring to the above quoted clause in the NIT, submits that if the technical bid of the petitioner is rejected on that ground, the same will be violative of Article 14 and 19(1)(g) of the Constitution of India. He submits that the NIT Silchar being an institution of national importance, cannot impose such restrictive clause so as to deprive the eligible contractors. In this connection, he has placed reliance on two decisions of the Apex Court reported in (2004) 11 SCC 485 (Jespar I Slong Vs. State of Meghalaya and others) and (2007) 8 SCC 1 (Reliance Energy Ltd. and another Vs. Maharashtra State Road Development Corpn. Ltd. and others).

4. Countering the above argument, Mr. N. Choudhury, leaned counsel representing the NIT, submits that the experience of working in North East Region is essential since past experience has shown that without NE experience, the execution of works is either delayed for faulty. He further submits that the writ petition is premature, inasmuch as, by letter dated 18.2.2013 addressed to the petitioner, he has been asked to furnish the documents showing execution of work in NE states in terms of the impugned clause in the NIT. Referring to the decision of the Apex Court reported in (2004) 4 SCC 19 (Directorate of Education and others Vs. EDUCOMP Datamatics Ltd. and others), he submits that the terms of the invitation to tender are not opened to judicial scrutiny, the same being in the realm of contract. According to him, the impugned clause in the NIT being reasonable, the petitioner cannot harp upon Article 14 and 19(1)(g) of the Constitution of India.

5. In addition to the above submission, he has also produced the written instruction furnished to him by the authority in the NIT. For a ready reference, the said instruction is reproduced below :-

'Sub : Construction of 1000 capacity Boys Hostel No. 9 and new Library Building at NIT Silchar. Tender for the work combining Boys Hostel and new Library building at an estimated cost of Rs. 128,03,64,669.00 was invited through National level dailies viz. (i) The Times of India – Kolkata, Delhi, Chennai & Mumbai publication, (ii) The Assam Tribune, Guwahati and local daily prerna Bharati – Hindi publication, website (i) nits.ac.in (ii) tenders.gov.in vide NIT No. Tech/NIT/70/Pt.II/11/2632-43/12104-9 dtd. 16.11.2012. The last date of submission of tender was 11.01.2013 and opening of price bid after evaluation of Technical Bid was on 17.10.2013.

In response to the tender 11 agencies purchased the bid documents and the following 08 agencies dropped the tender.

1) NPCC Ltd., Faridabad, Haryana,

2) Engineering Projects (India) Ltd., Guwahati.

3) Shree Gautam Construction Col Ltd., Guwahati.

4) M/s. ITD Cementation India Ltd., Kolkata.

5) Kamaladityya Construction Pvt. Ltd., Jharkhand.

6) Brahmaputra Infrastructure Ltd., Guwahati.

7) IVRCL Ltd., Kolkata.

8) NCC Limitted, Hyderabad.

A technical bid evaluation committee comprises of following external members was constituted.

1) Prof. G.C. Mitra, Chairman, Construction Committee, IIT, Bhubaneswar.

2) Prof. R.K. Ingle, Dean (FW) VNIT, Nagpur.

3) Executive Engineer (Civil) CPWD, Silchar.

4) Executive Engineer (Elect), CPWD, Silchar. The Committee evaluated the Technical Bids of 08(eight) responded agencies. After careful examination of all the relevant documents furnished by the agency, the Committee noted that the technical bid documents of all the agencies some shortfall in submitting documents.

Regarding one completed work of 40% of the estimated cost in Northeastern Region :

North east job is quire different to the rest of the country & contractor having worked at north eastern region experience will be benefited for speedy & timely completion of the project as the contractor are similar to the locality & condition of the northeastern region.

The 34th B & WC meeting vide item No. BWC- 34/13/03 has decided that the 'The committee examined the report of Special Bid Evaluation Committee (SBEC) constituted for examination of technical bid of the agencies submitted the tender for the work and approved the same. The committee decided that all the agency may be communicated by fax/email/speed post to submit the required information/document as pointed out by the Special Bid Evaluation Committee giving 10 days time. After expiry of 10 days the technical bids may be reevaluate to select eligible agency for opening of financial bids.'

Accordingly we asked for clarification for 08 (eight) agencies the last date of submission of clarification on 28.02.2013 and evaluation of clarification on 01.03.2013 at Kolkata in presence of 2 (two) external experts, viz., Prof. G.C. Mitra, Chairman, Construction Committee, IIT, Bhubaneswar and Prof. R.K. Ingle, Dean (FW), VNIT, Nagpur. After scrutinizing short listing agencies may be opening of financial bids on 05.03.2013, and placed the evaluation report and financial bid to B & WC meeting within 03 (three) weeks. If approved the said report, order will be placed in 2nd week of April, 2013 if permitted by the law.

Delay in this will lead to inconvenience to 900 Indian & 100 International Students.'

6. The two decisions on which Mr. H.K. Mahanta, learned counsel for the petitioner has placed reliance are basically on the principle relating to the role of the Govt. while entering into contract. In the said decisions, it has been reiterated and emphasized that the Govt. while entering into contract is expected not to act like a private individual but should act in conformity with certain healthy standards and norms. Such actions should not be arbitrary, irrational or irrelevant. The awarding of contracts by inviting tenders must be with the adoption of fair methods. If there are any reservations or restriction, then they should not be arbitrary and must be justifiable on the basis of some policy or valid principles which by themselves should be reasonable and not discriminatory.

7. The decision on which Mr. N. Choudhury, learned counsel for the respondent NIT placed reliance i.e. Educomp Datamatics Ltd. (Supra), the Apex Court dealing with the scope of judicial review in the matter of Govt. contract, held that terms of tender prescribing eligibility criteria, although open to interference but such interference should be only when the same is found to be arbitrary, discriminatory or biased. It is not open to interference merely because the Court feels that some other terms would have been more preferable. In paragraph 12 of the said judgement, it has been observed thus :-

'12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.'

8. The impugned tender clause requires one completed work equal to 40% of the estimated cost with some Central/ Stated Govt. organis

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ation / Central Autonomous Body / Central Public Sector Undertaking in the North Eastern States. It need not be emphasized that the North Eastern area has its own features which might require special treatment in the given facts and circumstances, be it in the matter of awarding of contract or in other areas. This is precisely the reason as to why the respondent NIT in its wisdom decided as a policy decision to insist on the requirement of particular work experience in NE States. 9. Having regard to the special features of the area, if a policy decision is taken to insist on the particular experience in the NE States, in my considered view, the same cannot be said to be arbitrary, unreasonable and bias. That apart, the petitioner with its eyes wide open having responded to the NIT with the stipulation of the impugned clause, cannot turn around the same to agitate the validity of the clause. 10. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. 11. There shall be no order as to costs.
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