M/s Ramgopal - Bhakraram, Sanchore vs State of Rajasthan

This writ petition is filed by the petitioner seeking

following reliefs:

"It is therefore, most respectfully prayed that the writ petition filed by the petitioner may be allowed and by an appropriate writ, order or direction:-

(i) The order No. 4049 dated 17-11-17 (Annexure P-7) by which the petitioner was declared unsuccessful for bid no.3/17-18 and bid No.4/17-18 may be quashed and set aside.

(ii) That the order No. 4061 dated 17-11-17 (Annexure P-8) by which tender regarding bid No.3/17-18 was sanctioned in favour of the M/s Krishna & Company, may be quashed and set aside.

(iii) That the order No.2095 dated 17-11-17 (Annexure P-9) by which the tender regarding bid No. 4/17-18 was sanctioned in favour of the M/s JRC Construction may be quashed and set aside.

(iv) That the bid information No. 3/17-18 (item No. 4) regarding work of repair, restoration and modeling works from 0 K.M. to 23 K.M. at Balera Distribution System may be awarded to the petitioner firm.

(v) That the bid information No. 4/17-18 (item No. 1) regarding work of repair, restoration and modeling works of Palri Sub Minor distribution system of Sanchore Lift Canal, may be awarded to the petitioner firm

(vi) Any other order or direction, which may be deemed just and proper in the facts and circumstances of the case, may kindly be passed in favour of the humble petitioner."

The facts, which are not in dispute, are that the

petitioner submitted its bids pursuant to NIT Nos. 3 and 4 of

2017-2018 issued by the Office of the Superintending Engineer,

Narmada Nahar Pariyojna, Circle-II, Sanchore for item No.4 and

item No.1 respectively.

The petitioner was found successful in technical bids

in both the above referred NITs and thereafter the financial bids

were also opened and the petitioner''s bids were found lowest for

both the works. However, on 17.11.2017, the respondent-

department declared the petitioner''s bids unsuccessful in both

the NITs citing the reason that the petitioner does not qualify as

per clause 3.2(b) of the tender document as it does not have

requisite experience of executing similar nature of works. Being

aggrieved with this, the petitioner has filed this writ petition.

Learned counsel for the petitioner has submitted that

once the financial bids of the petitioner were opened and the

bids quoted by it were found lowest, the respondent-department

has no authority to cancel the bids of the petitioner for the

reason that the petitioner does not have requisite experience of

executing similar nature of works.

It is also contended that the respondent-department

has also illegally declared the respondent No.6 tender No.3 as

the L/1 by accepting the fresh bid of it by reducing bid amount

though the same is not permissible under the law. It is further

submitted that similarly the respondent-department has also

illegally accepted the fresh bid of respondent No.4 for NIT No.4

by reducing its bid amount.

Learned counsel for the petitioner has further argued

that the reason given by the respondent-department for

rejecting the bids of the petitioner in respect of the concerned

NITs is entirely false because from the works experience

certificate submitted by the petitioner along with bid documents,

it is clearly established that the petitioner is having requisite experience of completing similar kind of work for which it has

submitted the bids.

It is further contended that once the respondent-

department has considered the work experience of the petitioner

as suitable, it cannot review its decision and such an action of

the respondent-department is absolutely illegal and without

jurisdiction.

Learned counsel has, therefore, prayed that the

action of the respondent-department of rejecting the bids of the

petitioner submitted pursuant to the NIT No.3 and 4/2017-18

be set aside and the reliefs prayed for in this writ petition be

granted.

Reply to the writ petition is filed on behalf of the

respondent-State, wherein preliminary objection regarding the

availability of alternative remedy of filing an appeal as provided

under section 30 of the Rajasthan Transparency in Public

Procurement Act, 2012 (for short ''the Act of 2012'' hereinafter)

has been taken.

It is also submitted that as per Rule 72 of Rajasthan

Transparency in Public Procurement Rules, 2013 (for short ''the

Rules of 2013'' hereinafter), the procuring entity is having all the

jurisdiction to accept or reject any bid at any point of time prior

to award of contract and in view of the above, it is wrong to say

that after accepting the financial bid, the respondent-department

has no authority or jurisdiction to reject the said bid.

In reply to the writ petition it is averred that though

the technical bids of the petitioner were accepted and the

financial bids were also opened and the petitioner''s bids were

found lowest amongst the other bidders but the respondent-

department has received a complaint with the allegation that the

petitioner does not have the requisite experience in terms of

clause 3.2(b) of the tender document and its bids have wrongly

been accepted. Therefore, pursuant to the directions given by

the Superintending Engineer, Narmada Nahar Pariyojna, Circle-I

and II, re-examination of the petitioner''s experience was

conducted as per Rule 331 of Public Work (Finance and Account)

Rules, 1999 by a review committee and the review committee

has found that the petitioner does not possess the requisite

experience as prime contractor in completing at least one

contract of nature and complexity within last five financial years

and, therefore, the bids of the petitioners have been rejected.

An additional affidavit is filed on behalf of the

respondent-department in which it is clarified that as per clause

3.2(b) of the NIT No.3/17-18 and 4/17-18, the petitioner was

required to have experience of same nature amounting to Rs.88

lac in one work in relation to Bid No.3 and Rs.98 lac in one work

in relation to Bid No.4. It is averred that from the documents

submitted by the petitioner along with its bids, it is clear that the

petitioner was not having the requisite experience as per clause

3.2(b) of the tender document and, therefore, his financial bids

have rightly been rejected.

Heard learned counsel for the parties and perused the

material available on record.

So far as argument of the learned counsel for the

petitioner to the effect that the respondent-department has no

jurisdiction to reject the financial bids of the petitioner in respect

of the NITs 3/17-18 and 4/2017-18 after accepting the same is

concerned, the same is not liable to be accepted in view of Rule

72 of the Rules of 2013, which provides that the procuring entity

has right to accept or reject any bid at any point of time prior to

the award of contract.

Admittedly, in the present case, the contract has not

been awarded till the financial bids of the petitioner had been

rejected.

The another contention of the learned counsel for the

petitioner is to the effect that the reason for rejecting the

financial bids of the petitioner cited by the respondent-

department are entirely false, is also not liable to be accepted.

Clause 3.2(b) of the tender document specifically

provides that bidder shall have successful experience as prime

contractor in completing at least one contract of a nature and

complexity comparable to the proposed contract within the last

five financial years from the of publication of NIT of value not

less than 30% of G-Schedule amount. 30% of G-Schedule

amount has also been specified in clause 3.2(b) of the tender

document. In the tender document, the work of similar nature

of complexity comparable to the proposed contract has also

been clarified.

From the documents produced by the petitioner along

with this writ petition, it appears that though the petitioner is

having experience of completing similar nature of work for which

he has submitted its bids but the petitioner has not completed at

least one contract of a nature and complexity comparable to the

proposed contract within the last five financial years from the of

publication of NIT of value not less than 30% of G-Schedule

amount in both the tenders.

Learned counsel though has tried to convince this

Court that the work completed by the petitioner in last five years

of construction of a road i.e. Gramin Gaurav Path is similar to

the construction of a canal or the work for which the petitioner

has submitted its bids and the costing of the said work was

much more than 30% of the G-Schedule amount of the proposed

contracts, but I am not impressed with it because the

respondent-department has already clarified in the tender

document that which works will be treated as similar in nature

and complexity comparable to the proposed contract and this

Court cannot add something else in the said clarifications while

exercising extraordinary jurisdiction of this Court. It is the

prerogative of the procuring entity to treat the various works as

similar in nature and the said action of the procuring entity can

not be subject to judicial review.

The other contention of the learned counsel for the

petitioner to the effect that the respondent-department has

illegally accepted the fresh bids of the respondent Nos. 4 and 5

by reducing bid amounts is also having no merit in view of the

submission made by the learned counsel for the respondent-

department that after rejection of the bids of the petitioner, the

bids of respondent Nos. 4 and 5 were found responsive and the

department after interacting with them has persuaded them to

reduce their bid amounts and when they reduced it, the same

has rightly been accepted by the department.

In view of the above discussions, I do not find any

merit in this writ petition and the same is hereby dismissed.

There shall be no order as to costs.

Stay petition also stands dismissed.