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Panda Infra Projects India Pvt. Ltd. v/s State of Orissa & Others

    W.P.(C) No. 22218 of 2010

    Decided On, 25 April 2011

    At, High Court of Orissa


    For the Petitioner: Rajjeet Roy, S.K. Singh, N. Hota, A. Pradhan, Advocates. For the Opposite Parties: J.P. Patnaik, Addl. Govt. Advocate.

Judgment Text

B. P. DAS, J:

1. The Petitioner, which is a company registered under the companies Act, 1956 & is a Super Class contractor, has filed this writ application assailing the legality & the propriety of the decision making process adopted by the Opp. Parties in arbitrarily canceling the tenders submitted by it pursuant to the tender call notice dated 9.9.2010 for construction of road over bridge near Lingaraj Road P S. Label Crossing No.190 Km.-441/1-4 between Bhubaneswar Retanga Station Square & ROB at Lc No. 188-SPL-3E At RD 433/23-25 Km of Howrah-Chennai Railway line at RD 1/200 Km from NH-203 (Bomikhal Square) connected to RD 1/300 Km to Janapath via Maharshi College, Saheed Nagar. The Petitioner has also assailed the fresh tender call notice dated 4.12.2010 published in the newspaper vide Annexure-7 for the aforesaid works.

2. The case of the Petitioner in brief is that in response to the tender call notice dated 9.9.2010 issued by Opp. Party No.3 the Chief Engineer, DPI & Roads, Orissa, inviting bids from the bidders in on line mode for three items of works, published in the local newspaper vide Annexure-2, the Petitioner submitted its technical bids as well as financial bids for two items of work as indicated in the foregoing paragraphs within the stipulated time. On the date fixed for opening the bids, the Opp. Parties opened the bids submitted by the Petitioner in its presence & found that the Petitioner was the single bidder to have participated in the tender process for execution of the above works. According to the Petitioner, since the bids submitted by it were complete in all respects & accordingly the Petitioner was waiting for a positive response from the Opp. Parties. But to the utter surprise, the Petitioner found that the Opp. Parties have posted in the Government Website a tender call notice dated 27.10.2010 inviting tenders for the self same works to which the Petitioner had bided for only by changing certain criterion & without publishing and notice canceling the earlier tender. Thereafter the Petitioner enquired about the reason for retendering the aforesaid works without disclosing the fate of its bids. On 3.12.2010, the Petitioner received an e-mail from the Opp. Parties vide Annexure-6 informing that the tenders had been cancelled due to administrative reasons.

3. According to the Petitioner, though the Petitioner was qualified in all respect in the technical bids, in order to favour certain persons a second tender notice was published being tailor-made to suite their favoured tenderer & to deprive the Petitioner. On 9.12.2010, the Petitioner issued a letter to Opp. Party No.3-Chief Engineer, DPI & Roads, expressing its displeasure for not being invited for the price bid despite fulfilling all the eligibility criteria for being invited to participate in the price bid & further in inviting fresh tender in order to deprive it from participating in the tender.

4. The question that arises for consideration is whether the Petitioner’s technical bids were in order & whether the same were arbitrarily rejected by the Opp. Parties even without informing it regarding the result of its technical bids, with a motive to accommodate certain other favoured persons.

5. Perusal of the counter affidavit filed by The State reveals that the technical bids of the Petitioner were found non-responsive due to non-fulfillment of the stipulations made in Clause-13 (i), 13 (ii) & 121 (f) of DTCN (Detailed Tender Call Notice) & since the Petitioner was the only bidder & there was no other bidder, it was decided to go for fresh tender.

6. To re-tender a work being a non-responsive bid is different than the process to go for a second tender because of single tender. So far as the question of single tender is concerned, Note (iii) of Clause 3.5.18 of the Orissa Public Works Department (OPWD) Code prescribes that the acceptance of a single tender received in response to a tender call notice should have prior approval of the next higher authority.

8. So, solely on the ground that the Petitioner is the single tenderer, the Chief Engineer cannot unilaterally reject the bids & go for fresh tender without following the procedures. At the same time, if the Petitioner’s bid is non-responsive to technical evaluation due to deficiencies therein, the technical bid can be rejected.

9. According to Learned Counsel for the Opp. Parties, apart from single tender, there is deficiencies in the bids of the Petitioner, which find place in Annexure-A to the counter affidavit filed by the State, wherein under the noting of Recommendation of the Committee, it has been indicated that in course of verification of technical bid documents, the Committee found that the bidder has failed to fulfill the eligibility criteria as per the requirement of clause 13 (i), 13 (ii) & 121 (f) of DTCN. Consequently the Committee decided to disqualify the bids of the Petitioner being non-responsive & further recommended for retendering of the works in question.

10. Clause-121 (f) of the Detailed Tender Call Notice (DTCN) prescribes:

Regarding experience certificate & financial turn over, the information as required in clause No. 13 of DTCN is mandatory.

Clause-13 of the DTCN prescribes:

'13. To qualify in the technical bid the bidder must fulfill the following qualifying criteria.

i) The bidder should have had annual financial turnover, minimum One half (1/2) of the invited tender amount in Civil Engineering construction works in any financial year during last five years ending 31.3.2010 & the turnover need to be certified by a Charted Accountant. The turnover will be indexed @ 10% (simple) for a year. Turnover on Joint Venture works are not accepted.

ii) The bidder should have satisfactory completed three repair/renovation/original nature of Civil Engineering works costing 40% of amount put to tender or completed two repair/renovation/original nature of Civil Engineering works costing 30% of amount put to tender or completed one repair/renovation/original nature of Civil Engineering work costing 25% of amount put to tender in any financial year during the last five years ending last day of the March 2010. Experience on repair/renovation/original nature of Civil Engineering works in hand & completed in the last five years with certificates from the concerned officer not below the rank of Executive Engineer or equivalent need to be furnished by the bidder as per Schedule D 1 & D 2.

NB: Similar nature of work means Road & Bridge works having items of RCC/PCC/WMM/BM & SDBC.'

11. Our attention is drawn to the documents filed by the Petitioner in Annexure-9 series to the rejoinder affidavit, which prima facie show that the Petitioner has all along worked in a civil contract as required under Clasue-13 (ii) & concluded the said works. In support of his required financial eligibility, due certificates have been granted by different authorities including the Executive Engineer of different divisions of the State Government & accordingly certified by the Chartered Accountant.

12. With the above materials on record, we are of the view that the cancellation of technical bids submitted by the Petitioner for the works in question on the ground as indicated by the Opp. Parties is unwarranted & it is perhaps due to improper scrutinization of the documents of the Petitioner by the authorities. Therefore, the Petitioner’s prayer for o

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pening of its financial bids is allowed. But so far as the question of single tender is concerned, it is open to the State Government to proceed in accordance with the Rules as this Court is not inclined to pass any direction in this regard. 13. Accordingly, we set aside the fresh tender floated by Opp. Party No.3 in the Tender Call Notice dated 4.12.2010 under Annexure-7 so far as Sl. Nos. 1 & 2 are concerned. The Opp. Parties are directed to open the financial bids of the Petitioner & evaluate the same & proceed with the same as per the OPWD Code. The entire exercise shall be completed within a period of one month from the date of receipt of the certified copy of this order. The Writ Petition is allowed to the extent indicated above. There shall be no order as to costs. B. K. MISRA, J. I agree.