Mohammad Yaqoob Mir
1. Rural Development Plan initiated by the Government of India also provide for construction of roads in rural areas through a scheme popularly
known as ""Prime Minister's Gramin Sadak Yojna (PMGSY)"" forwhich the funds are released by the Central Government and the worksare
executed by the State Government through Chief Engineer PMGSY ofthe concerned jurisdiction. In the instant case concerned is the Chief
Engineer, PMGSY, Jammu who has issued notice inviting tenders fromeligible bidders for construction of road from Dera Baba to Tanda inReasi
Division, Package No. JK14-128 for an estimated cost of Rs. 342.30lacs. Petitioner has also responded to the said notice and hassubmitted the
requisite technical bid as well as financial bid and hasalso submitted Bank Guarantee No. 100 for Rs. 6.86/ lac issued by the J&KBank, SMGS
Branch Jammu, as requisite earnest money deposit. The technical bids, as were received, are stated to have beenopened, in front of the bidders,
on 25.06.2010 by the staff of theChief engineer, PMGSY, Jammu, same were placed before the tendercommittee, as constituted by the Chief
Engineer, for proper evaluation.Petitioner has been given to understand that his technical bid will be rejected on the ground that he does not qualify
the requirement asenvisaged in condition No. 4.4A(b) of the Standard Bidding Document(hereinafter referred to as SBD), hence the present
petition, whereinissuance of appropriate writ, direction or order has been prayed fori.e. :
(I) Prohibiting the official respondents from rejecting the technical bid of the petitioner;
(II) Quashing the decision of rejecting the technical bid if any such
decision has already been taken
(III) Directing the respondents to consider the case of the petitionerfor allotment of contract after opening the financial bid.
2. In the reply, as filed by the respondents, it has been stated thatthe petitioner is not an eligible bidder as per the conditions laiddown in NIT and
the Competent Authority, upon due consideration, hasdeclared the bid of the petitioner as non-responsive. It is also statedthat pendence of the writ
petition has hampered the process aimed atproviding road connective to needy population. The bid of thepetitioner has been stated to be non-
responsive on the following counts :
a) The petitioner firm was enlisted as ""A"" Class contractor on06.02.2008;
b) Petitioner has not executed civil works between 2007 - 08 of the valueof Rs. 182.47/ lacs, as alleged by the petitioner.
c) The claim that the turnover of the petitioner firm for the period01.04.2008 till February, 2009 was Rs. 10,77,25,000/ is not correct asno
contract was awarded to the petitioner for the said period.
d) It is also incorrect that the turnover for the period 2009-2010 wasRs. 9,99,11,000/.
e) Copy of the Registration Card would indicate that the petitionerfirm was registered in the year 2008, so the petitioner has onlyexperience of two
years whereas, as per requirement of SDB clause4.2(b)(c), the petitioner should possess at least five years experienceand turnover, as per Clause
4.4A(a) 50% of the turnover should be fromcivil engineering construction works so as to qualify for bidding in PMGSY.
f) The petitioner, on the same grounds, had filed writ petitions registered as OWP No. 440/2009 and OWP No. 441/2009 which were
dismissedby this Court vide judgment dated 25.2.2010 and the appeals against thesaid judgments registered as LPA(OW) No. 10/2010 and
LPA(OW) No. 11/2010 were withdrawn by the petitioner.
3) In the rejoinder filed by the petitioner it is pleaded that thepetitioner possesses requisite experience and his technical bid isperfectly in
accordance with SBD. The requirement of Clause 4.4A(a) wasthat the contractor should have achieved, in any one year, a minimum financial
turnover equivalent to 75% of the tendered cost. The tendered cost was Rs. 3,42,3000, 75% means Rs. 2,56,72,500. The petitioner hadachieved
higher targets than the one required. In terms of Clause 4.4A(b) of SBD, petitioner was required to execute at least one similar work equal to 20%
of the tender cost which approximately comes to Rs. 68,46,000. The certificate of Paschim Developers and Construction,Bangalore clear suggests
that the petitioner had executed a single workfor approximately Rs. 70,56,800/.
4) As per Clause 4.2(b)(c) of the tender document, the requirement ofhaving five years experience as A- Class contractor is not prescribed.The
said Clause in fact is for the purpose of accepting the tender ofthe tenderer who must have achieved the turnover in any one year as per Clause
4.4A(a).
5) The respondents filed supplementary affidavit in compliance to orderdated 20.8.2011, wherein it is admitted that the scheme under PMGSY
was approved by the Government of India, Ministry of Rural Development forexecution in J&K to provide connectivity to far flung inhabitants
asconveyed vide letter dated 21.04.2010 and accordingly same was put to tenders including two schemes in respect of: (I) Dera Baba to
Tanda(Package No. JK14-128) for Rs. 342.302/ lacs, and, (II) Malikote toSarsote (Package No. JK14-146) for Rs. 223.71/ lacs, in response,
variousbids were received and on opening the same by the Tender OpeningCommittee, in respect of Package No. JK14-128, ten(10) technical
bids were received which include the bid of the petitioner but on scrutinyfive were found responsive whereas five were found non-responsive
whichinclude that of the petitioner. Vis-a-vis Malikote to Sarsote (Package No. JK14-146) five bids were received out of which two were
foundresponsive and three were found non-responsive which include that ofthe petitioner. All the pre-requisites for fixation of the contracthave
been completed but allotment is not made in view of directions ofthis Court. It is further added that the petitioner, in the meantime,had applied for
release of his bid security on the plea that thedepartment has not accepted his bid, his request was accepted and same was returned to him on
proper receipt which renders his bid invalid.
6) In opposition, petitioner has filed the objections stating therein that he, vide letter dated 31.03.2011, had requested the Chief Engineerthat his
bid for construction of road from Malikote to Sarsote (PackageNo. JK14-146) has not been accepted, therefore, his Bank Guarantee No. 115
issued by J&K Bank Ltd. Branch SMGS Jammu may be returned, which would indicate that the petitioner had withdrawn his tender vis-a-vissaid
work not vis-a-vis work under Package No. JK14 - 128.
7) Heard learned counsel for the parties.
8) The question for determination is ""as to whether bid of the petitioner has been validly declared as non-responsive"".
9) SBD governs the procedure and qualification for bidding. Clause 4provides for ""Qualification of the Bidder"". Clause 4.2(b) provides
forfurnishing the information vis-a-vis total monetary value of civilconstruction works performed for each of the last five years whereasClause
4.2(c) provides for furnishing the information vis-a-visexperience in works of a similar nature and size for each of the lastfive years and details of
works in progress or contractually committedwith certificates from the concerned officer of the rank of Executive Engineer or equivalent. Clause
4.4A(a) provides that the bidder should have, in the last five years, achieved in any one year a minimum financial turnover (as certified by the
Chartered Accountant, and atleast 50% of which is from Civil Engineering construction works)equivalent to the amount put to bid, in case the
amount put to bid ismore than Rs. 200/ lacks but less than Rs. 1000 lacks. Clause 4.4A(b)provides that, as prime contractor, the bidder must, at
least, have completed one similar work and the requisite certificate should be fromthe officer not below the rank of Executive Engineer or
equivalent.Clause 4.2(b) suggests that the bidder has to furnish the informationregarding monetary value of civil construction works performed for
eachof the last five years. The said Clause is controlled by Clause 4.4Awhich would provide that in last five years, at least in any one year,the
minimum financial turnover shall be 75% of the amount put to bid.It is an enabling clause and the requirement is that the bidder, in anyof the five
years, it may be first year or last year of the five years,must have achieved minimum financial turnover equivalent to 75% of the amount put to bid
where the bid is for more than Rs. 200/lacs and the satisfactory completion of the work is to be certified by the ExecutiveEngineer.
10) Petitioner in his rejoinder has categorically stated that the costof the tendered work was Rs. 3,42,30,000/, 75% of which amounts to Rs.
2,56,72,500/. The certificate issued by the Chartered Accountant,forming Annexure-H of the writ petition, would reveal that thepetitioner during
2007-2008 had achieved turnover of Rs. 182.47/ lacs,in the year 2008-2009 Rs. 830.37/ lacs and in the year 2009-2010 hadachieved Rs.
999.11/ lacs which would mean that for the said periodturnover was much more than required.
11) Clause 4.4A(b) of SBD would provide that the bidder must havecompleted at least one similar work equal in value to 1/5th of theestimated
cost of work which, in the instant case, approximately comesto Rs. 68.46,000. The petitioner has produced the certificate issued byPaschim
Developers & Construction which would reveal that thepetitioner, as a prime contractor, has satisfactorily completed theroad construction project
developed at survey No. 86, 87 and 91 MadakuHosalli village Nandi Hobli, Chikka Ballapur Karnataka for an amount of Rs. 70,56,800.00. The
said certificate is issued under the signature ofExecutive Engineer which is in consonance with Clause 4.4A(b).
12) Contention of the learned counsel for the respondents is that thepetitioner had earlier, on the same grounds, filed two writ petitions i.e. OWP
No. 440/2009 and OWP No. 441/2009 and the contentions of the petitioner were not accepted, LPAs, as preferred, were withdrawn.
13) Meeting this contention, learned counsel for the petitioner
referred to the judgment as rendered in OWP BNo. 440/2009. In the said case, vis-a-vis satisfactory completion of the work, petitioner had
produced a certificate issued by Paschim Developers and Constructions which was issued by the Chief Executive Officer, not by the Executive
Engineer or by an officer of the equivalent rank and it was not shown as to whether work was executed by the petitioner as a prima contractor but
the certificate, as placed on record of this case, satisfies the requirement i.e. the certificate in categoric terms provides that the petitioner, as a prime
contractor, has executed the work and the same is signed by the Executive Engineer which is a requirement, therefore, contention of the learned
counsel for the respondents, in view of said position, is not acceptable. The certificate as placed on record is reproduced here - under:-
Paschim Developers & Constructions
Site Office Madaku Hosalli Project, Chikka Ballapur, Karnataka
CERTIFICATE
This is to certify that against Work Order dt. 01.05.2008 M/S Cube Construction Engineering, 61D, D/C Gandhi Nagar, Jammu having ""A"" Class
Contractor Card PWD-J/R&B/A/66/2007-08 valid up to 31-03-2009 has satisfactorily completed entire Roads Construction Work as a Prime
Contractor at Paschim Developers & Constructions Project developed at survey no. 86, 87 and 91 Maddaku Hosalli Village Nandi Hobli, Chikka
Ballapur District Karnataka. The property of the project is exclusively owned by the company.
Detail of works:
S.No.Name of Work Quantity Rate (Rs.) Amount (Rs.)
1. Earth Work including Hard Rock 25350 M³ 195.004943250.00
2. Stone Massonary in Cement 1:6 1550M³ 671.00 1040050.00
3. RCC, M20 58M³ 4500.00 261000.00
4. Road Metaling and Black Toping 1250 M³ 650.00 812500.00
Grand Total 7056800.00
The above works has been executed by the contractor under my controland monitoring. Contractor had started the job on 5th May, 2008 and
completed the same on 20th Nov. 2008 well within its stipulated time.Bill for the above job is assessed for Rs. 7056800/- (Rupees SeventyLacs
Fifty Six Thousand Eight Hundred only).
For Paschim Developers & Constructions
Project Engineer/Executive Engineer
The certificate clearly answers the contention as raised.
14) Clause 4, 4.1, 4.2 and 4.4A, when read together, do not providethat the bidder must have five years experience as an ""A"" Class contractor,
instead Clause 4.2(b)(c) would provide that the bidder musthave at least five years experience and also provides as to what shouldbe the turnover.
Petitioner has the requisite experience as acontractor, therefore, registration of the petitioner as ""A"" ClassContractor in the year 2008 is immaterial
for the purpose of five yearsof experience. The requirement is that during last five years, thecontractor should have, in any one year, achieved
minimum financialturnover equivalent to 75% of the tendered cost which the petitionerhas fully satisfied and the certificate issued by the Chartered
Accountclearly indicate that for the year 2008-2009 and 2009 - 2010 petitionerfor civil construction works had achieved the turnover amounting
toRs. 830.37 lacks and 999.11/ lacks.
15) The rights of the petitioner have been protected while LPANo. 10/2010 was withdrawn. In the order recorded on 16.11.2010, whiledisposing
of the said LPA, it has been recorded as under:-""We accordingly, permit the appellant-Writ Petitioner to withdraw theAppeal observing that the
observations made by the Writ Court would notoperate as impediment with the authorities to consider the appellantfor allotment of fresh contracts,
as and when tenders are invitedtherefore, on its own merit and on the basis of the material includingrequisite certificate, justifying its eligibility to
compete.""Therefore, the judgment rendered in earlier disposed of writ petitionand appeal does not deprive the petitioner from competing and
fromclaiming consideration of his bid on the basis of the certificate asreferred to hereinabove.
16) Now again question arises as to what shall be the effect of returnof Bank Guarantee amounting to Rs. 6.86/ lacs vis-a-vis package No. JK14-
128. Admittedly petitioner vide his letter dated 31.3.2011 hadrequested Chief Engineer PMGSY to return Bank Guarantee No. 115 on thecount
that his tender for construction of road from Malikote to Sarsote(Package No. JK14-146) has not been accepted. The respondent Chief Engineer
released Bank Guarantee No. 115 but at the same time releasedBank Guarantee pertaining to package No. JK14-128 relatable toconstruction of
road from Dera Baba to Tanda. Petitioner has receivedthe same but in his objections has highlighted that he never requestedfor return of Bank
Guarantee pertaining to package No. JK14-128 andadmittedly, as per his own letter, he has withdrawn from packageNo. JK14-146 and has
added that Bank Guarantee was required to be re-validated, that was not done and without asking for its release it wasdelivered to the petitioner
so as to keep him out of zone ofconsideration. Normally, on release of Bank Guarantee, petitionerafter re-validation should have delivered it back
which he has not donebut since at the time he was required to furnish the Bank Guarantee, hehad furnished the same which is not denied, therefore,
condition of thetender was satisfied. Return of the Bank Guarantee later on, withoutasking for the same, will not disentitle the petitioner from
claimingthe right when he has been contesting the matter right from the verybeginning.
17) In the backdrop of the stated reasons and circumstances, the bid ofthe petitioner, relatable to Package No. JK14-128, is found to
beresponsive so should not have been declared as non-responsive. It beingso, respondents shall consider the bid of the petitioner along with other
responsive bidders and proceed ahead so as to finalize the tenderprocess. The petitioner shall deposit the required Bank Guaranteeafresh.
18) The respondents shall be free to take decision after consideringall the responsive bids, including that of the petitioner, strictly inaccordance with
rules and regulations governing the tender process.Interim direction dated 04.11.2010 shall cease to be in operation. Accordingly disposed of
along with connected CMPs.
