@JUDGMENTTAG-ORDER
P.K. Jaiswal, J.@mdashBy this writ petition, under Article 226 of Constitution of India, the petitioner has essentially challenged Annexure-P/ 29, the detailed notice inviting tender(II Call) System Tender No. 260 and also praying for issuance of writ of certiorari for quashment of a decision of the respondents regarding rejection of the tender submitted by the petitioner on the ground that he fulfills all the requirement and has all the qualification criteria prescribed in the tender documents and notice inviting tender (Annexure-P/ 4) and it being the lowest tenderer is entitled for award of the contract in his favour.
2. Brief facts of the case are that the respondent No. 2 issued a notice Inviting Tender No. 194(1st call) for the work of construction of Office Administrative Building 1/c, Watter Supply Internal, External Electrification, Development of Campus of IT Park at village Sinhasa, Dhar Road, Indore. The probable amount of contract was put in notice as Rs.2033 Lacs and an earnest money of Rs.5,00,000/- was required to be deposited with on line tender in the following manner:-
2. The bidders shall have to submit their Bids online(decrypt the bids and re-encrypt the bids) and upload the Post qualification information in prescribed pro forma for assessment of eligibility in online Envelope ''B'' with price bids in Form ''A'' in a separate online Envelope ''C'' Original Earnest Money Deposit Instrument drawn in favour of Executive Engineer Project Division MPHIDB Indore payable at Indore should reach the office of the Executive Engineer MP Housing and Infrastructure Development Board Project Division Indore upto 06.11.2014 on 3.30 PM.
3. The Earnest Money Deposit Envelope (Envelope - ''A'') and Envelope- ''B'' shall be opened online between 07.11.2014, 10.30 to 07.11.2014, 17.30 in the presence of any intending contractors or their representatives, if they choose to be present. After assessment of eligibility of the tenderers by the competent authority on the basis of Post Qualification documents submitted by the Contractors in Envelope-''B'', Envelope- ''C'' (Price Bid in Envelope- ''C'') of only Post Qualified Contractors shall be opened online between 17.11.2014, 10.30 to 17.11.2014, 17.30. The Start Date and Time and the End Date and Time of opening of Price Bid envelope mentioned in the Tender Schedule is tentative and subject to change.
3. As per the Detailed Notice Inviting Tender, General conditions, Section I, Clause 1.17, qualification criteria for submission of tender is as follows:-
1.17 QUALIFICATION CRITERIA
1.17.1 (A) To qualify for award of the contract, each bidder in its name should have in the last five years.
(i) Achieved a minimum financial turn over (in all classes of Civil Engineering construction works only) amount in the last five years immediately preceding the year of application not less than two and a half times of the amount of the contract.
(ii) Satisfactorily completed as a prime contractor at least one single Civil Engineering work of value not less than 2/3rd the value of the contract in 2/3rd time for proposed work.
1.17.1 (B) Bidders who meet the minimum qualification criteria will be qualified only if their available bid capacity is more than the total, probable amount of contractor. The available bid capacity will be calculated as under :
Assessed available bid capacity + (A x N x 2.00 - B)
Where,
A = Maximum value of civil engineering works executed in any one year during the last five years (updated to price level of the year in which contract is to be awarded) works completed as well works in progress will be accounted.
N = No. of years prescribed for this contract.
B = Value (updated) of existing commitments and ongoing works to be Completed upto end of the current financial years. Statement duly signed or counter signed by the Engineer-in-Charge Should be submitted in support of the above.
1.17.2 Even though the applicants meet the above qualifying criteria, they are subject to the disqualification if they have. Made misleading or false representation in the form, statements and attachments Submitted, or concealed.
And/Or
Records of poor performance such as abandoning the work, rescinding of contract for which the reasons are attributed to the nonperformance of the contractor, consistent history of litigation awarded against the applicant or financial failure due to bankruptcy.
1.18 The Technical Bid shall be examined to ascertain whether the applications:-
(i) meet the eligibility requirements,
(ii) Have been properly prepared and signed,
(iii) Contain all the details called for and are in proper format,
(iv) Are accompanied by required authorization and,
(v) Are otherwise generally in order.
1.19 Methodology will be evolve for making assessment of the capability of the firms who have tendered for the work will also include the following items. Structure and organization, of the firm, the liquid assets plus bank loan, and the requirement of satisfactory completion (including enhancement factor) during the last three years of the work. Resources of the firm in respect of personnel and equipment etc. and any other criteria as may be deemed necessary for particular work package. Applicant who have been debarred by the department or whose contract has been rescind during the last 3 years will not be considered for the tender.
1.20 The following enhancement factor will be used for the cost of works executed and the financial figures to a common base value for works completed in India. For works completed abroad the latest currency conversion rate will be applied.
In case the financial figure and value of completed works are in foreign currency, current market exchange rate will be applied for the purpose of conversion foreign currency into Indian Rupees.
APPLICATION WILL INDICATE ACTUAL FIGURES OR COSTS AND AMOUNT IN THE SCHEDULE WITHOUT ACCOUNTING FOR THE ABOVE MENTIONED FACTORS.
1.21 For assessment of bid capacity, applicants should give information in the Schedule ''I''.
4. The petitioner submitted its tender in accordance with Clauses 1.3 to 1.21 of the General Conditions along with all the requisite documents and information to establish its capability in all respects to successfully complete the envisaged work. It also submitted about its financial status with complete information and requisite certificates showing its financial status. As per Schedule ''H''(Annexure P20) the detailed qualification criteria supported with information showing total financial turnover of last five years to be Rs.124.63 Crores. As per details given in Schedule''-D'' he has completed the following work:-
SCHEDULE ''D''
5. According to the petitioner, as per Annexure-P/ 20 he has given the following details about successful execution of work:-
Successfully executed:-
1. Construction of HIG, MIG, LIG houses and development work for Sojna Housing Project Counter Magnet City, SADA, Gwalior.
The work of 14.519 Cr. Executed in 16 months i.e. from 01.01.2013 to 16.04.2014(Copy of Work order and Work Completion Certificate enclosed)
2. Construction of Metro Polish Commercial Tower, Andheri West, Mumbai. The work of 18 Cr. Executed from 22.08.2009 to 21.09.2010 of Housing Development and Infrastructure Ltd. Mumbai.(Copy of Work Order and Completion Certificate and TDS detail enclosed).
6. As per certificate issued by HDIL in respect of construction of work of IHDIL Metro Polish Commercial Tower, Andheri West, Mumbai upto 21/09/2010 it has completed the work of Rs.18.00 crores excluding the cost of reinforcement steel and cement. Certificate dated 21/09/2010 reads as under:-
TO WHOMSOVER IT MAY CONCERN
This is to certify that construction of Commercial Building at HDIL Metropolish, Versova, Andheri West, Mumbai, a R.C.C. Structure of 3 Basements and 25 stories building amounting Rs.7680 lacs was awarded to M/s. Pragmatic Infrastructure Ltd., B108, Satyam Co-operative Housing Society, Kandiwali (East) Mumbai.
The Pragmatic Infrastructure Ltd. Has completed the above said work up-to-date by considering all activities of worth Rs.1800 lacs excluding the cost of reinforcement steel and cement. The approximate up-to-date consumption of reinforcement Steel is 7000 MT and of Cement is 275000 Bags.
There is free supply of reinforcement steel and cement with recovery for the wastage apart from permissible limit at the rate of Rs.250/- per bag for cement and Rs.35/- per Kg for reinforcement steel.
The workmanship and Quality of work is very satisfactory.
7. As per Clause (ii) (A) of 1.17.1, it should have completed atleast one single Civil Engineering Works Construction as a prime contractor of value not less than 2/3rd the value of the contract in 2/3 time for proposed work.
8. According to the petitioner, in respect of qualification criteria Clause1.17.1 (A) (ii), it has successfully executed construction of HIG, MIG, LIG houses and development work for Sojna Housing Project Counter Magnet City, SADA, Gwalior.
9. The Deputy Housing Commissioner of M.P. Housing Board, who was authorised to open the Envelopes has opened the Envelope ''A'' which is in respect of Earnest Money Deposit and Envelope ''B'' which is in respect of Technical Qualification, in presence of the petitioner/representatives. After opening the aforesaid envelopes, the Deputy Housing Commissioner has found that the petitioner has been duly qualified and, therefore, opened its Price Bid (Envelope ''C'') and referred the matter to the Board for passing appropriate order therein. The Board on going through the Envelope ''B" has found that the petitioner has not completed the work in all respects and it has been wrongly qualified by the Deputy Housing Commissioner. It being the lowest tenderer, does not qualify for the technical bid and, therefore, is not entitled for any contract and decided to issue a fresh notice inviting tender. They also came to the conclusion that the tender form of petitioner should have been rejected at the time of opening of technical bid, but inadvertently the authorities at the Division level have lost sight and overlooked this discrepancy. As per the norms of the Board, any tender exceeding Rs.20,00,000/- is to be scrutinized and to be finalized at the Head Office Level. Accordingly, after opening of the bids same were forwarded with the recommendations to the Head Office. After scrutinizing the documents of all the tenderers it was found that the petitioner does not fulfill the qualification criteria as aforesaid and, therefore, his tender has been rejected.
10. Learned Senior counsel for the petitioner has submitted that no reason has been assigned while rejecting the tender of the petitioner. It is also submitted that as per AnnexuresP/ 22 to P/23 the petitioner has satisfactorily completed one single civil engineering work of value not less than 2/3rd the value of the contract in 2/3rd time for proposed contract work as required under sub clause (ii) of Clause 1.17.1(A). It is further pointed out that as no communication about rejection of the tender was given to the petitioner, therefore, it could not participate in the second tender invited by Annexure-P/ 29. The course adopted by the Department of calling fresh tender(II call) vide Annexure-P/ 29 is arbitrary and rational. The non-acceptance of the petitioner''s tender inspite of being lowest and technically qualified is unreasonable, discriminatory and against public interests.
11. He lastly submitted that as per noting of Deputy Housing Commissioner, the petitioner has fulfilled all the criteria of eligibility and qualification for participating in tender process. The petitioner has been found qualified for bidding. Financial bid of the petitioner has been found lowest and once the Envelope ''A'' which is in respect of Earnest Money Deposit and Envelope ''B'' in respect of Technical Qualification have been accepted and it has been found qualified in the technical bid and finally having been found lowest in the financial bid is eligible and entitled for the award of work. The action of respondents in not awarding him the work and calling fresh tender is arbitrary and in violation of Article 14 of the Constitution of India.
12. In reply, Shri Jain, learned Senior Counsel who is appearing on behalf of respondents has submitted that as per sub clause (ii) of Clause 1.17.1 (A), the petitioner has to complete at least one single Civil Engineering work amounting to Rs. 13.55 Crores in 16 months. For the Construction of HIG, MIG, LIG houses and development work for Sojna Housing Project Counter Magnet City, SADA, Gwalior, the work order was issued on 16/11/2011. The mention date of last running bill is 26/06/2014. The petitioner has completed the work within 31 months. Total amount of work completed is Rs.20.85 Crores. Meaning thereby that in 16 months the petitioner has shown the work of 10.76 Crores only. In respect of construction of Metropolish Commercial Tower, Andheri for HIDL the work order was issued on 22/08/2009. Till 21/09/2010, he has executed the work of Rs.18.00 Crores only out of total amount of Contract work which is Rs.76.80 Crores, for the period from 22/08/2009 to 21/09/2010(i.e. 13 months).
13. According to the learned Senior Counsel for the respondents, the TDS details statement submitted by the petitioner, it is clear that the work mentioned requiring completion of the work is not actually been completed being TDS is deducted upto payment made by same company and for same work upto 02.02.2011. In respect of execution of HDIL work, certificate issued by Company, the petitioner has not completed the work in all respect as date of completion and total amount of completed work is not given. He submitted that since the petitioner does not qualify for the Technical Bid and Deputy Housing Commissioner by mistake has wrongly been qualified him and opened the Envelope ''C'' and referred the matter to the M.P. Housing Board for awarding the contract to the petitioner. The said recommendation is not binding to the Head of the M.P. Housing Board. After scrutinizing the documents of all the tenderers, it was found that the petitioner does fulfill the qualification criteria and, therefore, the Scrutiny Committee recommended for rejection of his tender vide AnnnexureR/ 3 on 18/12/2014.
14. The aforesaid recommendation was accepted by the Board and tender of the petitioner was rejected and, thereafter, the IInd Call of Notice Inviting Tender was issued in the Newspaper on 23/12/2014. The petitioner has failed to submit its tender and in the meanwhile, till the grant of interim relief tenders of the intending bidders were opened, but due to interim order, the same has not been finalised and prayed for dismissal of the writ petition.
15. On due consideration of the aforesaid and documents(AnnexuresP/ 20 to P/24), we are of the view that admittedly, petitioner has not completed any Single Civil work amounting to Rs.13.55 Crores as required in 16 months as per sub-clause (ii) of Clause 1.17.1 (A) of the tender documents. The decision of the respondents not to accept the petitioner''s tender for want of nonfulfillment of the conditions of the eligibility cannot be said to be illegal warranting interference in a petition under Article 226 of Constitution of India. The clauses of the Eligibility Criteria have objects behind them. These clauses of the Tender Document are incorporated to ensure that only the experienced tenderer with sound financial capacity matching with the volume of the work should participate in the tender process. The petitioner - Company is lacking in the experience. The petitioner has also failed to complete one Single Civil Work as required under sub-clause (ii) of Clause 1.17.1 (A). The respondents have rightly rejected the tender of the petitioner.
16. The scope of judicial review is open to judicial interference only when it is arbitrary, discriminatory or biased but not open to interference merely because Court feels that some other terms would have been more preferable.
17. In the case of
18. In the present case, the authorities have not committed any illegality in rejecting the tender of the petitioner.
19. The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides.
20. Considering the fact that the petitioner challenged the action of the respondents by which its tender was rejected and this Court granted interim relief in favour of the petitioner, it has not submitted its bid in pursuant to the IInd Call of Notice Inviting Tender(Annexure-P/ 29) and, therefore, we direct the respondents to issue fresh advertisement for Notice Inviting Tender in respect of work of construction of Office Administrative Building 1/c, Watter Supply Internal, External Electrification Development of Campus of IT Park at village Sinhasa, Dhar Road, Indore.
21. We, therefore, are of the opinion that learned authority has committed no error in cancelling the tender of the petitioner. With the aforesaid, the writ petition filed by the writ petitioner is, accordingly, dismissed. There shall be no orders as to costs.
