Dr. B.R. Sarangi, J
1. One Rabindra Kumar Das, who is an ‘A’ class contractor, has filed both the above noted writ petitions. In W.P.(C) No. 28490 of 2022, he has sought for direction to the opposite parties to finalize the tender and award the contract in his favour, being the successful (L-1) bidder, in view of the proceedings dated 30.09.2022 under Annexures-5 and 6, and further to execute necessary agreement with him pertaining to the work “Construction of Bar Association Hall with Amenity Centre of District Court Building at Bhadrak for the year 2022-23” in respect of package no.5, pursuant to the tender call notice under Annexures-2 and 3 series, by quashing the letter dated 29.09.2022 under Annexure-8, by which opposite party no.3 has constituted a fresh technical evaluation committee and proceeded with the tender process.
So far as W.P.(C) No. 4547 of 2023 is concerned, it has been filed seeking to quash the letter dated 08.02.2023 under Annexure-3, by stating therein that as per the decision of the committee held on 06.02.2023 the petitioner has been disqualified as L-1 bidder, and consequential action thereof taken by the authority, as without jurisdiction, invalid, inoperative and amounts to overreaching the directions of this Court contained in order dated 28.10.2022 under Annexure-1 and order dated 17.01.2023 under Annexure-2 passed in connected W.P.(C) No. 28490 of 2022.
Since both the writ petitions arise out of the same tender process and are interlinked, they have been heard together and disposed of by this common judgment which will govern both the cases.
2. The facts leading to filing of these two writ petitions are precisely stated as follows:-
2.1 The petitioner is an “A” class contractor, having registration number 225HW898 issued by the Chairman of the Committee of C.E.S. & Engineering-in-Chief, Odisha, Bhubaneswar with validity up to 31.03.2025, and has got experience to undertake the work as assigned by various public departments of the Govt. of Odisha. The Govt. of Odisha in Works Department through its Chief Construction Engineer, Eastern Circle (R&B), Balasore-opposite party no.3, on behalf of the Governor of Odisha, on 08.08.2022, invited NIT No.06/22-23, but the same was cancelled. Thereafter, a fresh Invitation for Bids (IFB) was published vide Bid Identification No.CCEEC-10/2022-23, File No. 4164 dated 26.08.2022 by the very same Chief Construction Engineer, Eastern Circle (R&B), Balasore in respect of 5 nos. of packages and invited percentage of rate bids, in double cover system (I & II) in online mode for the construction of building works (excluding CGST 6% and SGST 6%), from the class of eligible contractors, as mentioned in Column-8 of the table of the notice, who were registered with State Government and other State Government contractors of equivalent grade/class registered with Central Government MES/Railways for execution of civil works.
2.2 As per the aforesaid IFB, the bid documents were available in the website from 30.08.2022 and were to be received on or before 13.09.2022 through online. The technical bid was scheduled to be opened at 11.00 A.M. on 14.09.2022 in the office of opposite party no.3 in presence of bidders who wish to attend. Out of the aforesaid five packages, package no.1 had approximate value of work at Rs.3,10,23,900/-, package no.2 at Rs.3,14,92,900/-, package no.3 at Rs.3,13,48,300/-, package no.4 at Rs.3,17,52,950/- and package no.5 at Rs.3,02,37,960/-. The petitioner, having satisfied all eligibility criteria, participated in respect of five packages, along with all bidders, and declared as responsive being qualified in the technical bids of all the five packages. Thereafter, the price bids of the responsive bidders in the technical bids were opened accordingly. Out of the five packages, the petitioner was declared as successful (L-1) bidder in respect of four packages, i.e., 1, 2, 3 and 5, having an offer of lowest price.
2.3 The DTCN (Detailed Tender Call Notice) specifically provides the eligibility criteria of bidders and the procedure for selection of bidders in the technical bid as well as in the financial bid. The bidder fulfilling the bid capacity, as per the formula and escalation factor provided therein, shall be eligible to participate and shall be declared as a responsive in the technical bid enabling for opening of his price bid so as to be declared as successful L1 bidder by the tender evaluation committee. The petitioner had submitted the work experience with similar nature of work, as per Schedule-D1, enclosing the certificate issued by the competent authority and also submitted list of similar nature of work in progress, as per Schedule-D2, and he had also submitted the format in respect of existing commitments and ongoing works, as per Schedule-G of DTCN, with experience certificates duly signed and provided by the concerned Divisional Authorities.
2.4 As per the provisions of the DTCN, the technical evaluation committee in its proceeding of the meeting, which was held on 30.09.2022 at 11.00 A.M., evaluated all the technical bids submitted by the respective bidders package-wise, including package no.5, i.e., “Construction of Bar Association Hall with Amenity Centre of District Court Building at Bhadrak for the year, 2022-23”. The committee, which evaluated the technical bids, was chaired by the Chief Construction Engineer, Eastern Circle (R&B), Balasore-opposite party no.3 along with four technical members. The technical evaluation committee, while evaluating the bids of three numbers of bidders, declared all the three bidders, including the petitioner, as technically qualified. Thereafter, the price bids of the responsive bidders, who were declared as qualified in the technical bid evaluation, were assessed and two bidders, namely, the present petitioner and Satya Brata Pattnaik were declared as qualified, whereas the other bidder, namely, Jaydev Padhi was declared as disqualified by the tender evaluation committee. The tender evaluation committee assessed the financial bids of the petitioner and Satyabrata Pattnaik. The petitioner was found to have offered lowest price @ 10.30% less than the amount put to tender and derived at Rs.1,71,23,450.200. Similarly, Satyabrata Pattnaik had quoted a less offer @ 0.01% less than the tender amount and derived at Rs.3,02,34,936.293. Therefore, in respect of package no.5, the petitioner’s offer being the lowest he was declared and notified as successful (L1) bidder. So far as package no.5 is concerned, the result of the financial bid assessed by the tender evaluation committee was floated in the website of the department and the same was also sent to the respective e-mail ID of the bidders.
2.5 At this point of time, opposite party no.3-Chief Construction Engineer, Eastern Circle (R&B), Balasore issued to the petitioner the letter no.4953 dated 30.09.2022, which was sent through his e-mail ID, with a request to attend its office on 01.10.2022 for verification of the original documents uploaded during bidding. A copy of the said letter was also forwarded to the Superintending Engineer, Bhadrak (R&B) Division, Bhadrak with a request to intimate the petitioner accordingly. Subsequently, opposite party no.3 uploaded letter no.4909 dated 29.09.2022 stating in the heading “Proceeding of Tender Revocation” with further stipulation therein that after getting a complaint regarding some discrepancies from one of the bidders in respect of works, a committee comprising the Chief Construction Engineer, Asst. Executive Engineer, Estimator and Junior Engineer, Estimator was constituted which unanimously opined for revocation of the tender to bring it to pre-opening stage for further evaluation of the bid.
2.6 Pursuant to the above notice, the petitioner, on 07.10.2022, appeared before the Estimator. Thereafter, the petitioner, on 13.10.2022, filed a representation before opposite party no.3 requesting him to finalize the bid, as he is the successful (L1) bidder, but no action was taken. Therefore, on 23.10.2022, he filed another representation before opposite party no.2. But, opposite party no.3 uploaded the proceeding of tender revocation bearing no.4909 dated 29.09.2022. Consequentially, the petitioner, even though was declared L1 bidder, could not get such benefit. Therefore, he approached this Court by filing W.P.(C) No. 28490 of 2022.
2.7 While entertaining the writ petition [W.P.(C) No.28490 of 2022], this Court, on 28.10.2022, passed orders to the following effect:-
“This matter is taken up through hybrid mode.
2. Heard Mr. U.C. Mohanty, learned counsel for the petitioner and Mr. S.S. Kanungo, learned Additional Government Advocate for the State.
3. Pursuant to the tender invited by opposite party no.3 dated 26.08.2022 vide Bid Identification No. CCEEC-10/2022-23 for “Construction of Bar Association Hall with Amenity centre of District Court Building at Bhadrak for the year 2022-23”, the petitioner along with five others participated in the process of bid. Out of six bidders, the bids of three bidders were disqualified, whereas the petitioner along with two other bidders was technically qualified. Thereafter the price bid was opened. In the price bid so far as one package is concerned under Annexure-6, the petitioner was declared qualified and accordingly vide order dated 30. 09.2022 the petitioner was called upon to appear on or before 01.10.2022 for verification of the original documents uploaded during bidding.
However, the petitioner brings to the notice of this Court the document under Annexure-8 dated 29.09.2022, wherein it has been indicated that after getting a complain regarding some discrepancies from one of the bidders in respect of the work for which the technical bid has already been opened, the Committee unanimously opined for revocation of the tender to bring it to pre-opening stage for further evaluation of the bid.
4. Mr. U.C. Mohanty, learned counsel appearing for the petitioner contended that there is no question of re-evaluation of the technical bid once it has been opened and as such, on 29.09.2022, if such a decision has been taken, then on 30. 09.2022 vide Annexure-7, the petitioner could not have been called upon to participate for verification of the documents. According to him, the proceeding of the tender revocation dated 29. 09.2022 is a back dated document. In support of his contention, reliance has been placed in the case of Bhupendra Kumar Dash v. State of Odisha and others, 2016 (II) ILR-CUT-760, where this Court already held that the District Tender Committee could not have reopened the matter after lapse of more than one month after having given report on 23.04.2015 and having approved by the tender of the petitioner for grant of contract. Such reopening, whether it may be on the basis of complaint or otherwise, cannot be justified in law.
5. Mr. S.S. Kanungo, learned Additional Government Advocate seeks time to obtain instruction in this matter.
6. Let five extra copies of the writ petition be served on Mr. S.S. Kanungo, learned Additional Government Advocate, within three days for enabling him to obtain instruction and file counter affidavit.
7. Issue notice in I.A. 8. Call this matter next week connecting with W.P.(C) No. 28198 of 2022.”
2.8 Thereafter, the matter was listed on 04.11.2022, 17.01.2023 and 24.02.2023. But, on 17.01.2023, this Court passed the following order:-
“This matter is taken up through hybrid mode.
2. Mr. U.C. Mohanty, learned counsel for the petitioner seeks time to file rejoinder affidavit.
3. List this matter after one week.
4. Rejoinder affidavit, if any, be filed in the meantime.
5. Opposite parties are directed to proceed with the allotment of the work in favour of the selected person, so that the work can be proceeded with, since no interim order is operating.”
2.9 Thereafter, the petitioner filed W.P.(C) No. 4547 of 2023 challenging the selection of Satyabrata Pattnaik-opposite party no.7 by disqualifying the petitioner on the ground that the petitioner has misled the Court and perpetuated the illegalities by open legal fraud in the shape of affidavit, which actions are purely malicious in nature. In the said writ petition, the petitioner further seeks to quash the order dated 08.02.2023, wherein it has been stated that the petitioner has been disqualified on 06.02.2023 as L1 bidder, without making any communication of the same to him, which amounts to overreaching the orders dated 28.10.2022 (Annexure-1) and dated 17.01.2023 (Annexure-2) passed by this Court in W.P.(C) No. 28490 of 2022.
3. Mr. U.C. Mohanty, learned counsel for the petitioner contended that clause-126 of the DTCN provides for eligibility criteria of bidder. Procedure to participate in the online bidding e-procurement has been provided under clauses-1.1 and 1.4, which clearly envisages that furnishing scanned copy of such documents is mandatory along with the tender documents, otherwise the bid shall be declared as non-responsive and thus liable for rejection. For submission of bid through e-procurement portal, the bidder shall upload the scanned copy of the documents in prescribed format wherever warranted in support of eligibility criteria and qualification information. The online bidder shall have to produce the original documents in the portal before the specified date as per DTCN. Similarly, clause-2 provides for bid security and cost of bid documents, whereas clause-8.4 provides that during bid opening the covers, containing original financial instruments towards cost of bid and bid security in the form specified in the DTCN, received after last date of receipt of bid and before opening of the bids shall be opened and declared. Clause-8.5.3 provides that after receipt of confirmation of the bid security, the bidders may be asked in writing/online (in their registered e-mail ID) to clarify on the uploaded documents provided in the technical bid, if necessary, with respect to any doubt or illegible documents required for technical evaluation. Clause-8.6 provides that the technical evaluation of all the bids shall be carried out as per the information furnished by the bidders. But evaluation of the bid does not exonerate the bidders from checking their original documents and if at a later date the bidder is found to have misled the evaluation through wrong information, action as per relevant clause of DTCN shall be taken against the bidder/contractor. As such, there are some other provisions mentioned in the DTCN so that bid can be conducted in a transparent manner.
3.1 In view of the provisions contained in the DTCN, opposite party no.3 is under obligation to finalize the tender in accordance with the provisions mentioned in the tender documents. As per the provisions stipulated and programme provided in the tender documents, the petitioner, having all eligibility criteria, as per the DTCN, and being a registered “A” class contractor, participated in the tender in respect of all the packages, including package no.5. The technical bid was opened on 14.09.2022 and, thereafter, the technical evaluation committee on 27.09.2022 made a further stipulation that the price bid shall be opened on 29.09.2022. But opposite party no.3 issued proceeding of tender revocation, vide letter no.4909 dated 29.09.2022, stating therein that after getting a complaint regarding some discrepancies from one of the bidders, the committee unanimously opined for revocation of the tender to bring it to pre-opening stage for further evaluation of the bid. Ultimately, the bid submitted by the petitioner was rejected and the second highest bidder, i.e., opposite party no.7-Satyabrata Pattnaik, who had quoted @ 0.001% less than the estimated cost, was decided to be awarded with the tender. Thereby, the action of the authority is arbitrary, unreasonable and contrary to the provisions of law and the same is liable to be quashed.
To substantiate his contention, learned counsel for the petitioner has relied upon the judgments of the apex Court in the cases of Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Central Coal Field Ltd. v. SLL-SML (Joint Venture Consortium), AIR 2016 SC 3814; M/s B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd., AIR 2007 SC 437; Raunak International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492; Ramana Dayaram Setty v. The International Airport and others, (1979) 3 SCC 489; and of this Court in the cases of M/s Shree Ganesh Construction v. State of Odisha, 2016 (II) OLR 237; D.K. Engineering and Construction v. State of Odisha and another, 2016 (II) ILR CUT 515; Bhupendra Kumar Dash v. State of Odisha, 2016 (I) ILR CUT 760; Tata Cellular v. Union of India, AIR 1996 SC 11; Dinakrushna Pattnaik v. State Odisha and others, 2023 (I) OLR 301.
4. Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State-opposite parties contended that for the work “Construction of Bar Association Hall with Amenity centre of District Court Building at Bhadrak for the year 2002-23, notice inviting tender was issued on 26.08.2022 vide Bid Identification No. CCEEC-10/2022-23. Pursuant to such tender call notice, the petitioner submitted its bid along with documents on 13.09.2022. Consequentially, the bid was opened on 14.09.2022 at 11.00 A.M. and all the three bidders, including the petitioner, who had participated, were qualified by the technical evaluation committee on 27.09.2022 and the financial bid was scheduled to be opened on 29.09.2022. Thereafter, on receipt of a complaint from opposite party no.7, before opening of financial bid, the tender inviting authority-opposite party no.3 constituted a committee comprising (i) Junior Engineer, Estimator, Office of the CCEEC (R&B), Balasore; (ii) Asst. Executive Engineer, Estimator, and (iii) Chief Construction Engineer, Eastern Circle (R&B), Balasore. The committee unanimously decided to revoke the proceeding of committee held on 27.09.2022, with regard to technical evaluation, to pre-opening stage in order to facilitate the re-evaluation of bid. Basing on such compliant, re-evaluation was made by the tender evaluation committee on 30.09.2022, wherein the committee unanimously qualified the technical responsive bidders, including the petitioner. It is contended that after opening of financial bid of qualified bidders, the bid of the petitioner amounting to Rs.2,71,23,450.20 being 10.30% less than the estimated cost of work value of Rs.3,02,37,960.00 stood lowest (L1). The petitioner, being the L1 bidder, was asked to attend the office for verification of original documents uploaded during e-tendering.
4.1 At that moment, another complaint was received on 30.09.2022 from opposite party no.7 against the petitioner and again on 06.10.2022 another complaint was received from opposite party no.7 with regard to submission of false and fabricated documents submitted by the petitioner. A report was called for from opposite party no.4 vide letter no.4985 dated 06.10.2022 to intimate regarding the genuineness of the work in hand certificate dated 02/07.09.2022 uploaded by the petitioner in respect of the present bid as well as the work in hand certificate dated 10.06.2022 submitted by the petitioner in respect of the work “Construction of Bar Association Hall with Amenity Centre of District Court Building at Bhadrak for the year 2022-23” pursuant to the Bid Identification No.07/2022-23 dated 28.06.2022, as the opposite party no.7 made complaint in respect of two work in hand certificates submitted by the petitioner. In response to the letter no.4985 dated 06.10.2022 of the opposite party no.3, opposite party no.5, vide letter no.3546 dated 11.10.2022, submitted reply to the opposite party no.3. Since no clear information was received from opposite party no.4, again, vide letter no.5624 dated 10.11.2022, opposite party no.3 requested the opposite party no.4 to intimate the authenticity/ genuineness of the documents, which were sent to the opposite party no.4 vide letter no.4985/WE dated 06.10.2022. In reply to the letter dated 10.11.2022 of the opposite party no.3, opposite party no.5, vide letter no.5057 dated 26.12.2022, intimated that there is no official record, i.e., original document available regarding issue of work in hand certificate, which was signed on 10.06.2022, and there is no memo number and date on the document signed on 07.09.2022.
4.2 Consequentially, there was a comparison of the information provided by opposite party no.5, vide letter no.3546 dated 11.10.2022, vis-à-vis Schedule-D2 (list of similar nature of projects in progress) submitted by the petitioner along with the bid, which clearly proved that the petitioner had submitted incorrect information in respect of two works, namely, “Construction of Academic Building in connection with Infrastructure Development of Bhadrak Autonomous College under World Bank Assistance Programme (OHPEE) Phase-1 for the year 2020-21” and “Construction of 100 seated Boys Hostel Govt. Polytechnic Bhadrak for the year 2020-21”. So far as the work “Construction of Academic Building in connection with Infrastructure Development of Bhadrak Autonomous College under World Bank Assistance Programme (OHPEE) Phase-1 for the year 2020-21” is concerned, the same has been completed on 31.08.2022, whereas Schedule-D2 dated 12.09.2022, the petitioner had shown the said work to be an “ongoing work”. Similarly, so far as the work “Construction of 100 seated Boys Hostel Govt. Polytechnic Bhadrak for the year 2020-21” is concerned, the same had been completed in the month of July, 2022 and handed over to the department on 12.08.2022, whereas in Schedule-D2 signed on 12.09.2022 the petitioner had shown the said work to be an “ongoing work”. Therefore, the information provided by the petitioner in Schedule-G and D-2 were taken into consideration while evaluating the technical bid of the petitioner. As such, opposite party no.5 vide letter no.3546 dated 11.10.2022 intimated that both the works, as per Schedule-G, were completed as on last date of receipt of the tender, whereas the petitioner has declared in Schedule-G as well as Schedule-D2 that both the works are ongoing work and value of the works remaining to be completed as on 12.09.2022 were Rs.45,71,332/- and Rs.10,11,911/- respectively.
4.3 Further, opposite party no.5 while forwarding the proposal for extension of time, vide letter no.405/WE dated 24.01.2013, submitted completion certificate of the project “Construction of Academic Building in connection with Infrastructure Development of Bhadrak Autonomous College under World Bank Assistance Programme (OHPEE) Phase-1 for the year 2020-21” indicating that the work has been completed and handed over on 31.08.2022. Therefore, the petitioner has submitted incorrect information in Schedule-D2 as well as Schedule-G in respect of the work “Construction of Academic Building in connection with Infrastructure Development of Bhadrak Autonomous College under World Bank Assistance Programme (OHPEE) Phase-1 for the year 2020-21”. More over, in response to the letter no. 5624 dated 10.11.2022 of opposite party no.3, opposite party no.5 has further clarified, vide letter no.894 dated 17.02.2023, that such certificate of the opposite party no.4 stated to be issued on 02/07.09.2022 regarding work in hand has not been issued from the said office. Apart from the same, the petitioner also submitted a solvency certificate no.22 dated 12.09.2022. But on receipt of the objection from opposite party no.7, the Branch Manager, Allahabad Bank, Bhadrak was requested by opposite party no.3, vide letter no.5460 dated 03.11.2022, to intimate about the genuineness of such solvency certificate, but yielded no result. Thereafter, opposite party no.7 obtained relevant information from the bank which was communicated to the opposite party no.3 by the opposite party no.7, vide letter dated 14.11.2022, that only one solvency certificate no.22 dated 05.07.2022 has been issued in favour of the petitioner, but the petitioner along with his bid uploaded the solvency certificate of the same number, i.e., 22 but with a different date as “12.09.2022”. Therefore, the petitioner was directed to produce the original of the solvency certificate uploaded by him along with his bid to verify the authenticity. It is contended that by producing fraudulent documents, the petitioner wanted to take advantage and, therefore, selection of the petitioner as L1 bidder cannot be sustained in the eye of law. As a result of which, opposite party no.7, being the highest bidder, the committee decided to settle the tender in his favour. As such, no illegality or irregularity has been committed by the authority in settling the work in favour of opposite party no.7, even though the petitioner initially considered as L1 bidder.
4.4 To substantiate his contention, learned Addl. Government Advocate appearing for the State-opposite parties has relied upon the judgments of this Court in the cases of Pramod Kumar Sahoo v. State of Odisha, 2016 (II) OLR 819; and Chandra Sekhar Swain v. State of Odisha, 2017 (I) OLR 666, which has been confirmed by the apex Court in SLP (C) No. 9235-9237 of 2017 disposed of on 31.03.2017; and the judgments of the apex Court in the cases of M/s Patel Engineering Ltd. v. Union of India, (2012) 11 SCC 257 and Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818.
5. This Court heard Mr. U.C. Mohanty, learned counsel appearing for the petitioner and Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State-opposite parties through hybrid mode and perused the record. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties these writ petitions are being disposed of finally at the stage of admission.
6. Admittedly, the petitioner was declared as L1 bidder by the technical evaluation committee for the work under package no.5. But, subsequently, on complaint being received the same was re-examined and on that basis it was found that since the petitioner has taken advantage of producing fraudulent documents, which were annexed as per Schedule-D and Schedule-G in the bid documents by uploading the same. On instructions being received from the competent authorities with regard to issuance of such documents, when it is came to notice of the technical evaluation committee that the same were not issued by them, ultimately the technical committee took decision for settlement of the tender in favour of opposite party no.7, he being the second highest bidder, as the petitioner incurred disqualification in terms of the provisions contained in the DTCN. Since there is no bar to rectify an inadvertent error and mistake, which came to the notice of the tender inviting authority upon receipt of the complaint from one of the bidders, the decision was unanimously taken by the committee to revoke the bid to the pre-opening stage for further evaluation. Therefore, no illegality has been committed in re-evaluating the bids after receipt of the complaint against the successful bidder and before issuance of the LoA (Letter of Acceptance). Mere selection by the technical evaluation committee does not create any right in favour of the petitioner, as no LoA was issued in his favour for executing the work.
7. Much arguments were advanced before this Court that when W.P.(C) No. 28490 of 2022 is pending adjudication, the decision has been taken by the tender evaluation committee and, therefore, the same cannot be sustained in the eye of law, as it is in violation of the order passed by this Court on 28.10.2022. Perusal of the aforesaid writ petition, it would be evident that the petitioner has sought following relief:-
“In the aforesaid circumstances, it is humbly prayed that this Hon’ble Court may graciously be pleased to admit this writ application and issue Rule Nisi calling upon the Opp. Parties to show cause as to why this Writ application shall not be allowed and if the Opp. Parties fail to show cause or show insufficient cause, the said Rule may be made absolute and on hearing the parties through their counsel and on calling for records, this Hon’ble Court be further pleased to:
i) This Hon’ble Court be pleased to issue appropriate writ/writs in holding that after declaration of Annexure-5 & 6 and issuance of Annexure -7 vide Letter No.4953 dated 30.09.2022, the issuance of Letter No.4909 dated 229.09.2022 under Annexure-8 is without jurisdiction, invalid, inoperative & non-existent in the eye of law when the Opp. Party No.3 becomes “functus offficio” in constituting a fresh Technical Evaluation Committee is stopped to proceed further on the basis of the said Letter dated 29.09.2022 under Annexure -8 as such the same is liable to be quashed by this Hon’ble Court.
ii) Issue writ of Mandamus directing the Opposite Parties to finlize the Tender & Award the Contract in favour of the petitioner being the successful LI bidder in view of the proceedings dated 30.09.202 under Annexure-5 & Annnexure-6 directing them for execution of necessary Agreement in favour of the Petitioner pertaining to the work i.e. Construction of bar Association Hall with Amenity center of District Court Building at Bhadrak for the year,2022-23” in respect of Package no.5 under Annexure-2 & 3 Series.
iii) This Hon’ble Court be further pleased to pass such other appropriate writ/writs direction/ directions, order /orders as would be deem fit and proper in favour of the petitioner.
And for which act of kindness the petitioner as in duty bound shall ever pray.”
8. In response to such relief sought by the petitioner in W.P.(C) No. 28490 of 2022, the opposite party no.3 filed counter affidavit, paragraphs-13 and 15 whereof read as under:-
“That the averments made in paragraph No.9 of the writ petition are disputed and denied. It is respectfully submitted that as per DTCN Clause No.14 (Page-17), Clause No.126 (f) (Page-32) and serial No.16 of Contract Data (Page-8), the bidders who meet minimum qualification criteria will be qualified only if, his available bid capacity at the time of biding is more than the estimated cost of the work. The available bid capacity is calculated by a formula as under.
Assessed Available Bid Capacity = (A x N X 2- B), where.
A= Maximum value of works executed in any one year during the last five years (updated to the current price level) rate of inflation may be taken as 10 percent per year (escalation factor) which will take into account the completed as well as work in progress.
B= Value at current price level of the existing commitments and ongoing works to be completed during the next year (period of completion of works for which bids are invited); and
N= Number of years prescribed for completion of the works for which the bids are invited.
The information on Bid Capacity as on the date of this bid is to be furnished as per the format in Schedule –G. Turn Over certificate on Civil Engineering Construction works performed in the last five years are to be furnished for which certificate from Chartered Accountant is to be furnished.
However, the allegations/ complainants have received against the petitioner that he had manipulated the data and inflated the value of works. The Bid Capacity calculated by the Petitioners is wrong and not based on the above formula . Hence the allegation/ complaints received against the petitioner are under the scrutiny of Opp. Parties.
xxx xxx xxx.
15. That the averments made in paragraph No.11 of the writ petition are disputed and denied. It is humbly submitted that the evaluation of the bids has not yet been completed. The letter of award has not yet been completed. The letter of award has not yet been issued simply on the ground of the bidder remaining L1. The bid approval and acceptance depend upon other criteria mentioned in the DTCN and successful completion of the bid evaluation.
It is further submitted that the allegations/complaints are received against the petitioner and the said complaints are under scrutiny of Opp. parties.
All other allegations/averments made in this paragraph are hereby disputed and denied.”
9. On the basis of the pleadings available, since it was the specific case of the State-opposite parties that the allegation received against the petitioner was under scrutiny, considering such fact, this Court, vide order dated 17.01.2023, directed the opposite party-authorities to proceed with the allotment of the work in favour of the selected person, so that the work can be proceeded with since no interim order is operating. Pursuant to such direction and upon receipt of detailed clarification, the complaint received against the petitioner was finalized upon disqualification of the petitioner on 06.02.2023. Thereafter, the L2 bidder was called upon, vide letter dated 08.02.2023, for negotiation of the rate. Accordingly, the name of the L2 bidder was recommended to the O.S.D. Chief Engineer (Buildings), Odisha, vide letter dated 10.02.2023, for necessary approval, but the same was not received. Consequentially, because of pendency of the writ petitions, the work could not be progressed.
10. Clauses-14 and 16 of the DTCN stipulate the eligibility criteria of satisfactory execution/completion of similar nature of works, meaning thereby, construction of building works during last five financial years, i.e., 2017-18, 2018-19, 2019-20, 2021-21 and 2021-22. The certificates to that effect were to be furnished in prescribed proforma in Schedules D1, D2 and H of the DTCN by the bidder to qualify for bidding and selection. Any departure from the same is not acceptable. The petitioner had filed W.P.(C) No. 28198 of 2022 in respect of the work “Construction of 100 bedded Girls Hostel in Odisha Adarsha Vidyalaya at Olanga under Bhadrak Block for the year 2021-22”; W.P.(C) No. 28486 of 2022 in respect of the work “Construction of 100 bedded Girls Hostel in Odisha Adarsha Vidyalaya at Eram under Basudevpur Block for the year 2021-22”; W.P.(C) No. 28487 of 2022 in respect of the work “Construction of 100 beded Girls Hostel in Odisha Adarsha Vidyalaya at Santhapur under Tihidi Block for the year 2021-22”; and W.P.(C) No. 28490 of 2022 in respect of the work “Construction of Bar Association Hall with Amenity Centre of District Court Building at Bhadrak for the year 2021-22” and, as such, W.P.(C) No. 4547 of 2023, has also been filed for “Construction of Bar Association Hall with Amenity Centre of District Court Building at Bhadrak for the year 2021-22”. As per the conditions stipulated in the DTCN, merely becoming L1 bidder one does not automatically get entitled to be awarded with the work irrespective of genuineness of the documents submitted/ uploaded and their satisfactory verification/evaluation. Furthermore, the tender document is not a statutory document. As and when, any inadvertent error is found in evaluation of bid/bidding process, the same can be rectified by the tendering authority. As regards the eligibility of the petitioner in respect of four packages, owing to receipt of complaint dated 29.09.2022 from the opposite party no.7 regarding some discrepancies in the bid documents of the five packages, on 29.09.2022, the committee opined for revocation of the tender to bring it to pre-opening stage for further evaluation of the bid and, as such, no letter of award of the work has been issued to any of the bidders including the petitioner. As a consequence thereof, the tendering authority has every right to revoke the tender to pre-opening stage for further evaluation of the bid, as no right had been accrued in favour of the petitioner in any manner by the time the complaint was received on 30.09.2022 from opposite party no.7 and, as such, verification of original documents could not be held awaiting enquiry report on the allegations made against the petitioner. Thereafter, another complaint was received on 06.10.2022. After receipt of the detailed clarification on complaint against the petitioner the bid was finalized upon disqualification of the bid of the petitioner on 06.02.2023. Consequentially, opposite party no.7 was called upon for negotiation. As such, this Court, vide order dated 17.01.2023, never directed to consider the case of the petitioner. As the petitioner has submitted incorrect/fabricated documents along with the bid, his case was not considered and disqualified on 06.02.2023.
11. It is made clear that on receipt of the complaint allegation against the petitioner on 06.10.2022, the Chief Construction Engineer, Eastern Circle, R&B, Balasore wrote letter to the Superintending Engineer, Bhadrak requesting him to intimate the genuineness of the certificate dated 02/07.09.2022 which was uploaded by the petitioner along with the bid in question as well as the certificate dated 10.06.2022 uploaded by the petitioner in respect of the work “Construction of Bar Association Hall with Amenity Centre of District Court Building at Bhadrak for the year 2022-23”. On 11.10.2022, opposite party no.5 after receipt of the aforesaid letter dated 06.10.2022, wrote a letter on 11.10.2022 intimating that the petitioner had completed the work “Construction of 100 seated boys hostel of Govt. Polytechnic, Bhadrak” to the tune of Rs.3,27,17,850/- instead of Rs.3,00,00,000/-. Further, for the work of construction of academic building in Bhadrak Autonomous College, the petitioner had uploaded to the tune of Rs.2,80,00,000/-, whereas the Superintending Engineer, Bhadrak had informed that the petitioner had completed the work of Rs.2,65,15,064/-. After receipt of the aforesaid letter, the Chief Construction Engineer, Eastern Circle, R&B, Balasore again wrote a letter to the Superintending Engineer, Bhadrak with regard to genuineness of the document. In response to the same, it was intimated that the petitioner had uploaded the incorrect work experience certificate dated 02/07.09.2022 along with his bid for the work in question. Therefore, in view of the stand taken in the counter affidavit filed in W.P.(C) No. 28490 of 2022 that the allegations received against the petitioner are under scrutiny and, as such, this Court also directed the opposite party-authorities to proceed with the allotment of the work in question in favour of the selected persons since there is no interim order operating. Therefore, on receipt of the detailed clarification on the complaint against the petitioner the bid was finalized upon disqualification of the bid of the petitioner on 06.02.2023. In such eventuality, no illegality or irregularity can be said to have been committed by the authority in disqualifying the petitioner for giving false and fabricated documents by committing fraud on the authority.
12. It is worthwhile to mention here that disqualification of the petitioner has been made as per Clauses-119(a) and 126(f) of the DTCN, which are extracted hereunder:-
119. Even qualified criteria are met, the bidders can be disqualified fir the following reasons, if enquired by the Department
(a) making a false statement or declaration.
xxx xxxxxx
126. ELIGIBILITY CRITERIA:-
To be eligible for qualification, applicants shall furnish the followings:-
xxx xxx xxx
f. Submission of the required information on his/their available bid capacity at the expected time of bidding as per Clause-14. The statement showing the value of existing commitments and ongoing works as well as the stipulated period of completion remaining for each of the works listed (Schedule –G) should be countersigned by the Engineer-in-Charge not below the rank of an Executive Engineer which is mandatory if it is NIL then an affidavit must be furnished in this regard as mentioned in Contract Data.
xxx xxx xxx”
In the above view of the matter, disqualification of the petitioner’s bid is within the competency of the authority and as such the same is in compliance of the provisions contained in the DTCN. Thereby, no error can be found with the authority in rejecting the bid of the petitioner.
13. Once the petitioner was found ineligible, as he had produced false documents and committed fraud on the authority in violation of clauses-119 (a) and 126 (f) of the DTCN, the committee recommended for negotiation with the second lowest bidder, i.e., opposite party no.7. Accordingly, letter no.805 dated 08.02.2023 was issued to the L2 bidder, namely, opposite party no.7 to negotiate at par with the rate quoted by the L1 bidder. The 2nd lowest bidder (opposite party no.7) agreed to negotiate at par with the rate quoted by L1 bidder (petitioner) and his original documents were verified with the uploaded documents. The tender of the 2nd lowest bidder (opposite party no.7) being minus 10.30% less than the amount put to tender, being single negotiated tender was recommended to the OSD-Chief Engineer, (Building), Odisha, Bhubaneswar for approval. In view of such position, this Court does not find any error or illegality committed by the opposite parties in selecting opposite party no.7, as the L1 bidder in the interest of justice, equity and fairplay. As such, the Chief Engineer Building, Odisha is to grant necessary approval so that the work can be progressed and completed within a stipulated time.
14. Though the petitioner has relied upon plethora of judgments, but the same were considered on their respective facts and circumstances. If scrutiny will be made to the judgment in the case of M/s B.S.N. Joshi & Sons Ltd. (supra), wherein the apex Court held that when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantiated and complied with the purport and object for which essential conditions were laid down, the decision is to be approved. The principles decided in the aforementioned case have no application to the present context. Reliance has been placed to the judgment of the apex Court in the case of Tata Cellular (supra), by which the apex Court laid down certain guidelines regarding judicial review of tender matter and decision making process. There is no dispute with regard to the principles laid down by the apex Court and applying such principles to the present case, this Court is of the considered view that the authority has not exceeded its power for deciding the matter and reached a decision which no reasonable tribunal would have reached and, as such, the authority has not abused its power and also committed a breach of the rules of the natural justice. Reliance has also been placed on various judgments of this Court and in many of those judgments one of us (Dr. Justice B.R. Sarangi) is the author. But the principles laid down by this Court have been wrongly interpreted by the petitioner and, as such, the same are not applicable to the present case because by producing fraudulent documents the petitioner wanted to gain the benefits, that itself cannot sustain in the eye of law.
15. In Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319, the apex Court held has follows:-
“Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application f any equitable doctrine including res-judicata.”
The said principle has also been referred to by this Court in the case of Umesh Chandra Chinera v. Chairman & Managing Director, Bharat Petroleum Corporation, 2022 (II) ILR CTC 604. The said view has also been taken by the apex Court in Bhaurao Dagdu Parlakar v. State of Maharastra, (2005) 7 SCC 605. The elaborate discussion has been made with regard to the meaning of fraud in Shrisht Dhawan v. Shaw Bros, (1992 1 SCC 534, which has also been referred to in Roshan Deen v. Preeti Lal, (2002) 1 SCC 100, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311 and Ashok Leyland Ltd v State of T.N., (2004) 3 SCC 1.
16. In view of the aforesaid factual matrix, it is made clear that the petitioner has not approached this Court with clean hands.
In State of Haryana v. Karnal Distillery, AIR 1977 SC 781, the apex Court refused to grant relief on the ground that the applicant had misled the Court.
In Chancellor v. Bijayananda Kar, AIR 1994 SC 579, the apex Court held that a writ petition is liable to be dismissed on the ground that the petitioner did not approach the Court with clean hands.
Taking into consideration the above judgments, this Court, in Netrananda Mishra v. State of Orissa, 2018 (II) OLR 436, came to a conclusion in paragraph-26 of the said judgment and held as under:-
“………..For suppression of facts and having not approached this Court with a clean hand, the encroacher is not entitled to get any relief, particularly when the valuable right accrued in favour of the petitioner is being jeopardized for last 43 years for no fault of him, on which this Court takes a serious view…………”
Therefore, applying the above ratio to the present case, this Court is of the considered view that by giving distorted facts, the petitioner has misled the authority. The same has also been taken by this Court in the case of State of Odisha and others v. Lalat Kishore Mohapatra and Anr., 2022 (Supp.) OLR 970.
17. The opposite parties have taken positive stand before this Court that if in a decision making process some mistake has been pointed out and if an unconscious ignorance and forgetfulness of a fact has been taken into consideration and subsequently it has been detected that wrong has been committed, in that case, the authority has got every right to rectify the same. A mistake which has been committed in the process of selection, the authority got every right to rectify the same if it has been brought to their notice. The word “mistake” is generally used in the law of contracts to refer to an erroneous belief- a belief that is not in accord with the facts. To avoid confusion, it should not be used, as it sometimes is in common speech, to refer to an improvident act, such as the making of a contract, that results from such an erroneous belief. Nor should it be used, as it sometimes is by Courts and Writers, to refer to what is more properly called a misunderstanding, a situation in which two parties attach different meaning to their language. An unconscious ignorance or forgetfulness of a fact, past or present, material to the contract, or a belief in the present existence of a thing material to the contract, which does not exist, some intentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence; in a legal sense, the doing of an act under an erroneous conviction, which act, but for such conviction, would not have been done.
18. In Deva Metal Powders (P) Ltd. v. Commr. Of Trade Tax, U.P., (2008) 2 SCC 439, the apex Court held that ‘mistake’ means to take or understand wrongly or inaccurately; to make an error in interpreting it; it is an error, a fault, a misunderstanding, a misconception.
If an unconscious, ignorance and forgetfulness of facts has been taken into consideration and subsequently, it has been detected that a wrong has been committed, the authority has got right to rectify the same.
In State of Punjab v. Jagdip Singh and Others, AIR 1964 SC 521, the apex Court held as follows:
“The respondents were officiating Tahasildar in the erstwhile State of Pepsu. By notification dated October 23, 1956 made by the Financial Commissioner of Pepsu they were confirmed as Tahasildars with immediate effect. No posts were, however, available at that time in which the respondents could be confirmed. The Supreme Court held that there being no vacancy in which the confirmation could take place, the order of the Financial Commissioner confirming the respondent as permanent Tahasildars must be held to be wholly void. It was further held that where a Government servant has no right to a post or to particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status.”
In case of Sundar Lal and others v. State of Punjab (1970) S.L.R. 59 a Full Bench of the Punjab and Haryana High Court held as follows
“If owning to some bona fide mistake the Government has taken a decision regarding confirmation of an officer, it can certainly revise its decision at a subsequent stage, when the mistake comes to its notice.”
In case of K.B. Sharma v. Transport Commissioner, U.P., AIR 1968 Allahabad, 276 the Court held as follows:-
“An order of confirmation, if passed under some mistake, could certainly be revised with a view to correct the mistake and that such a revision even if it might affect the person confirmed earlier, could by no means attract article 331 of the Constitution.”
Similar view has also been taken by this Court in Sri Udayanath Jena v. State of Orissa represented by the Director of Health Services, Orissa and others, 1974(1) C.W.R. 587.
In view of the law laid down by the apex Court as well as various High Courts it is no more res integra that the authority, who has committed a mistake, can rectify the same if it is brought to its notice at a subsequent stage.
19. So far as applicability of estoppel is concerned, in Union of India v. Rakesh Kumar and others, (2001) 4 SCC 309, the apex Court held that no person can claim any right on the basis of the decision which is de hors the statutory rules nor can there be any estoppel.
In view of such position, the principle of estoppel will not apply to the present context, inasmuch as if the mistake has been discovered, the same is to be rectified.
20. In Chandra Sekhar Swain (supra), relying upon the judgment of the apex Court in the case of State of Jharkhand v. M/s CWE-SOMA Construction, AIR 2016 SC 3366, this Court, in paragraph-18 of the said judgment, held as under:-
“12. In case of a tender, there is no obligation on the part of the person issuing tender notice to accept any of the tenders or even the lowest tender. After a tender is called for and on seeing the rates or the status of the contractors who have given tenders that there is no competition, the person issuing tender may decide not to enter into any contract and thereby cancel the tender. It is well-settled that so long as the bid has not been accepted, the highest bidder acquires no vested right to have the auction concluded in his favour (vide Laxmikant and Ors. v. Satyawan and Ors. (1996) 4 SCC 208: (AIR 1996 SC 2052); Rajasthan Housing Board and Anr. v. G.S. Investments and Anr. (2007) 1 SCC 477 : (2006 AIR SCW 5968) and Uttar Pradesh Avas Evam Vikash Parishad and Ors. v. Om Prakash Sharma (2013) 5 SCC 182 : AIR 2013 SC (Supp) 495)).”
“14. The State derives its power to enter into a contract under Article 298 of the Constitution of India and has the right to decide whether to enter into a contract with a person or not subject only to the requirement of reasonableness under Article 14 of the Constitution of India….”
The aforesaid judgment has been confirmed by the apex Court with the dismissal of SLP(C) No. 9235-9237 of 2017.
21. As there is no concluded contract existed between the parties, the claim made by the petitioner to award the contract in his favour on the basis of the so called consideration made cannot be acceded to. Therefore, the decision taken for revocation on the assessment made by the tender committee on the basis of the materials available on record cannot be also said to be mala fide exercise of power by the authority concerned. If the DTCN specifies the mode of submission of tender document and that mode is found to have been not followed, the submission of tender document itself is defective one. The tender document has to be in consonance with the DTCN and it must be unconditional one and in proper form. Merely because the petitioner was found, on consideration of an erroneous document, that by itself cannot create a right in favour of the petitioner, unless the parties have entered into agreement and there is concluded contract to that extent. Similar view has also been taken by the reference made to Rishi Kiran Logistics v. Board of Trustees, (2015) 13 SCC 233.
22. Since no right has been accrued in favour of the petitioner and the authorities, having realized their mistake, rectified the same and that the same is well within their jurisdiction, this Court is not inclined to interfere with the decision so taken.
23. Section 10 of the Contract Act, 1872 envisaged that “All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.” Meaning thereby, right to make a contract includes right not to make a contract. But said right is inherent in every person capable of entering into a contract. Therefore, once mistake was found out and the same has been rectified, it is within the domain of the authority to enter into a contract with a person, who is found eligible. Thereby, no illegality or irregularity has been committed by the authority. This view has been taken by apex Court in the case of Patel Engineering Limited (supra).
24. In Afcons Infrastructure Limited (supra), the apex Court, while dealing with Government contracts and tenders- modes of entering into a Government contract-public auction/tender- tender conditions/criteria/norms/ Request for Proposal (RFP) conditions/Notice Inviting Tender (NIT)/advertisement/ Invitation to Offer/reserve price/pre-qualifications/scope of judicial review, held that the words used in the tender documents cannot be ignored or treated as redundant or superfluous and that they must be given meaning and their necessary significance. If that would be taken into consideration in the present case, the steps taken by the opposite party-authorities are well justified and, as such, no fault can be found with them.
25. Taking into consideration the facts and law, as discussed above, this Court does not find any illegality or irregularity has been committed in the decision making process of selection of opposite party no.7 as a successful bidder in respect of the work in question under package no.5 so as to cause interference of this Court.
26. In the result, both the writ petitions merit no consideration and the same are hereby dismissed. Consequentially, the opposite parties are directed to take follow up action immediately. However, there shall be no order as to costs.
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