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Judgment
Sanju Panda, J.—Since both the Writ Petitions involve common questions, they were heard together & are being disposed of by this common Judgment.
In both the Writ Petitions, the Petitioners who are Special Class Contractors have challenged the Tender Call Notice published by the Superintending Engineer, Upper Indrabati Right Canal Circle, Kalahandi bearing Identification No. SE RCC, UIIP-01/2009-2010 (01-05) for execution of 5 numbers of works on the ground that the same violates the provision of the Orissa Public Works Dept. Code (in short, OPWD Code), direction of the State Govt. & the principle of natural justice.
From the facts narrated in these Writ Petitions, it appears that both the Petitioners obtained a certificate in Form B of Certificate of Registration Under Rule 6 of the P.W.D Contractors Registration Rules 1967 bearing registration Nos. 1615 of 1988-89 & 5605 of 2004-05 respectively & the same were renewed from time to time. The last renewal is valid up to 31.3.2012. The Petitioners being Special Class Contractors are entitled to work as per the direction of the State Government upto Rs. 8 crores. Earlier also the Petitioners were successful bidders & they completed the works successfully & received the work certificates from the Executive Engineer, Upper Indrabati Left Canal Division No. Ill during the year 2006-07 to 2007-08.
While the matter stood thus, Opp. Parties published a Tender Call Notice bearing identification No.SE RCC, UIIP-01/2009-2010 (01-05) for execution of five numbers of works. In the said notice, vide Annexure-4, it was indicated that the bid should be submitted by the eligible class of contractors as mentioned in Column 4 of the Table given there under on-line in the Government Website www.tendersorissa.gov.in. The bidders willing to participate in the tender should have necessary portal enrolment with own digital signature certificate. The registered bidders outside of Odisha can also participate in the on-line tender process after necessary portal enrolment but shall have to subsequently undergo registration with the Odisha PWD before signing of the Agreement. Out of the 5 items of work, cost of item Nos. 1 to 3 are more than Rs. 2 crores each & item Nos. 5 & 6 are more than Rs. 1 crore each. In the technical bid, one of the terms to qualify for the contract is:
Qualifying amount in respect of annual turnover to be filled up in Table-I. Year wise. To qualify for award of the contract, each bidder in its name should have in the last five year (from 2004-05 to 2008-09) achieved minimum annual turnover (in all classes of civil engineering construction work only) of Rs. 2.19 Crore at 2009-10 price level. A weightage factor @ 10% per year for each of the five preceding financial year i.e. from 2004-05 to 2008-09 is indicated in the table. This factor is to be multiplied to the annual turnover of respective year to bring the same to the level of 2009-10.
In the present Tender Calf Notice, the period to complete the work is within 12 calendar months in respect of all the five items whereas in the other Tender Call Notice i.e. bearing Identification No.CE. UIIP-01/2009- 2010 (01-03) which has also been published by the same authority, vide Annexure-6, the period to complete the work has been given as 24 calendar months in respect of two items & 18 calendar months in respect of one item & regarding annual turnover nothing has been mentioned. Aggrieved by the aforesaid criteria fixed by the authorities, the Petitioners have filed these Writ Petitions.
Learned Counsel appearing for the Petitioner in both the Writ Petitions, submitted that the Government of Orissa vide its Order Dated 17.1.2002 published a notification for pre-qualification criteria for the tenderers for the work costing Rs. 3 crores & above & no specific guidelines or directions had been given for the tender whose cost is below Rs. 3 crores. However in the Tender Call Notice published by the authority the fixation of the above criteria in the technical bid is arbitrary & the Petitioners wilt be deprived of participating in the tender process. We further submitted that the aforesaid condition was nut in the technical bid with a mala fide intention to deprive the Petitioners of participating in the tender process.
In both the cases, this Court issued notice to the Opp. Parties & passed an interim order on 4.9.2009 to the extent that the tender process may continue but no final order will be passed without leave of this Court. Howeyer without prejudice to the rights & contentions of the parties, the Petitioner may be permitted to participate in the tender which, shall be subject to further orders of this Court.
Opp. Parties filed their counter affidavit stating therein that the works in question are time bound works & funded under Accelerated Irrigation Benefit Programme (AIBP) of Govt. of India & targeted to be completed within the scheduled time to provide irrigation to drought prone Golamunda & Dharamgarh Blocks of Kalahandi Dist. If the work is not completed within the scheduled time, the fund which has been granted to the State as aid would be converted to a term loan or even it might be taken back.
The Superintending Engineer, Upper Indravati Right Canal Circle within his competency & as per the procedure prescribed under the OPWO Code invited tender notice through e-procurement for five numbers of work since the cost of the above works are more than Rs. 50 lakhs. As per OPWD Code, Vol-1, Note-VII (amended on 11.10.2006) paragraph-3.5.9(b), tender for work costing more than Rs. 50 lakhs is to be invited in double cover, one cover containing technical bid & the other containing financial bid. While opening the bids, the technical bid is to be opened 1st & then the financial bid. Certain qualifications/criteria were fixed by the concerned Superintending Engineer as per DOWR Circular No. 2266 dated 27.4.2002. Therefore, there is no mala fide intention on the part of the Opp. Parties as contended by the Petitioners. The admission of the Petitioners that they are the successful bidders in many works is their self-explanation. In the present case, the works are targeted to be completed by March, 2012. The work is urgent in nature to provide irrigation to drought prone Golamunda & Dharamgarh Blocks of Kalahandi Dist. Therefore, with an intention to get the works executed by the competent agency having financial soundness & technical ability to complete the works within the targeted time the aforesaid conditions were fixed in the Tender Call Notice as per the procedure prescribed by the Code. The works are being executed for the economic development of the poor farmers of Kalahandi Dist. The Govt. of Orissa in the Dept. of Water Resources formulated qualifying criteria for the works above Rs. 3.0 crores though there are no separate guidelines & Govt. Circular for works costing Rs. 50.00 lakhs to Rs. 300.00 lakhs. To implement the amended provisions (as amended on 11.10.2006 in the OPWD Code), the bids were invited in double cover, one cover containing technical bid & the other containing financial bid. The said guidelines were prescribed by the concerned Engineering Dept. (DOWR) in accordance with the OPWD Code & there is no bar to adopt the said principle & guidelines for the work below Rs. 3 crores. The Petitioners are Special Class Contractors & eligible to participate in the tender up to Rs. 8 crores. They have also participated in the present tender. Their bids will be evaluated along with the other bids as per the technical qualification mentioned in the tender document.
Since the Opp. Parties have already accepted the tenders of both the Petitioners, this Court is not inclined to interfere with the tender process. Both the Writ Petitions are accordingly dismissed.
I.M. Quddusi, ACJ.
I agree.