M/s. SGF Infra Private Ltd. vs Union of India

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Mr. Alok Aradhe, J. - In this writ petition, the petitioner inter alia seeks quashment of order dated 03.03.2016 by which the petitioner's technical",

bid has not been found to be responsive and the same has been rejected. The petitioner also seeks a writ of Prohibition restraining respondents 2,

to 4 from awarding the contract in question to respondent No.5 as well as Writ of Mandamus directing the respondents to open the price Bid of,

the petitioner pursuant to Notice Inviting Tender dated 01.01.2016. In order to appreciate the petitioner's grievance, few facts need mention which",

are stated infra.,

The petitioner is Company registered under the provisions of Companies Act, 1956. The petitioner is engaged in the business of construction of",

work of bridges, etc. and has successfully executed various works. The petitioner is also registered as contractor with Public Works contract as",

A-Class category. The Respondent No.2 issued a notice inviting tender dated 01.01.2016 for design and construction of 500 Meter span pre-,

stressed double lane bridge including approach roads of length 1875 meter (1175 mtr on right side and 700 mtr on left side) over river Ujh at,

Jothana (Kathua) under CRF.,

In pursuance of the aforesaid notice inviting tender, the petitioner as well as four other bidders including respondent No.5 submitted their bid.",

Class 4.7(1) of the Notice Inviting Tender which prescribes the eligibility criteria reads as under :,

4.7(1). Experience in Similar Works :,

Technical ;",

(i) The applicant shall provide evidence that it has experience of successfully completing the construction of similar nature of works in the single,

bridge over perennial River/overflowing water and having individual span of 35 M or more during last five years. The work should have executed,

by the applicant individually as Prime Contractor. The similar nature of works means Construction of Prestressed concrete box type girder Bridge,

in bouldry strata.""",

It appears that in pursuance of the representations made by the Contractor, respondent No.3 issued a Corrigendum in Notice Inviting Tender",

dated 01.01.2016, on 25.01.2016. The bid of the petitioner was considered by the Committee constituted by the respondents. However, by a",

Communication dated 03.03.2016, the petitioner was informed that its bid has not been found to be responsive. In the aforesaid factual",

background, the petitioner has approached this Court.",

Learned counsel for the petitioner submitted that the criteria which was prescribed in the Notice Inviting Tender dated 01.01.2016 was,

amended by issuing corrigendum on 25.01.2016 and the requirement which was prescribed is satisfactory completion as prime contractor, at least",

one work of similar nature equal to value 33 per cent of advertised amount in any one year during the last five years ending last date of the month,

previous to the one in which the tenders are invited. It is submitted that the technical bid of the petitioner was evaluated with reference to the,

unamended criteria and was found to be non responsive. The attention of this Court has been invited to the Certificate dated 28.05.2015 issued by,

the Executive Engineer, Power House Division BHEP in support of submission that the petitioner has the requisite experience and is fully eligible",

for consideration of his technical bid. It is also argued that a similar Notice Inviting Tender was issued by the Director General, Border Roads in",

which the petitioner was found to be qualified.,

During the course of the arguments, it was pointed out that the petitioner today has filed one supplementary affidavit. Lastly it was urged that",

respondent No.5 also does not fulfil the eligibility criteria laid down in the Notice Inviting Tender as he does not have experience of similar nature,

of work under a single contract.,

On the other hand, learned senior counsel for respondents 2 to 4 has invited attention of this Court to the Notice Inviting Tender dated",

01.01.2016 and has submitted that the scope of work has remained the same despite corrigendum being issued on 25.01.2016. It is further,

submitted collective reading of terms and conditions of the Notice Inviting Tender read with Corrigendum, makes it evident that the tenderers",

should have experience of construction of pre-stressed concrete double lane bridge or experience of successfully having completed similar nature,

of work. It is pointed out that the petitioner does not possess the requisite experience as prescribed in the Corrigendum dated 25.01.2016.,

Therefore, the Technical Committee has rightly found the bid to be non responsive. It is further submitted that in the instant case, the petitioner has",

not alleged mala fides and a decision that the technical bids submitted by the petitioner is non responsive has been taken by Committee of experts,

and this Court will not sit as Court of Appeal over the decision taken by Committee of Experts.,

Learned counsel for respondent No. 5 has submitted that the scope of work has not been changed even after the issuance of the corrigendum,

and the petitioner does not have the experience of construction of a double lane bridge. Therefore, the technical bid of the petitioner has rightly",

been rejected. In support of his submissions learned counsel for respondent No.5 has referred to decision in the case of Raunuq International Ltd.,

v. I.V.R. Construction Ltd. and Others, (1999) 1 SCC 492 and a decision of the Supreme Court dated 15.09.2016 passed in Civil Appeal No.",

9079 of 2016 (Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. and Anr.) In support of his submissions, learned counsel for the",

petitioner has placed reliance on decision in the case of Harminder Singh Arora v. Union of India and ors., (1986) 3 SCC 247.",

I have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that discretion to,

grant largesse including award of jobs, contracts, quotas, license and so on must be structured by rational, relevant and non-discretionary standard",

or norms. If the Government departs from such standard or norms, its action would be liable to be struck down unless the Government can",

establish that departure was not arbitrary, but was based on some valid principles which in itself was not irrational, irrelevant, unreasonable or",

discriminatory. See, Narendra Kumar Maheshwari v. Union of India, 1990 (Supp) SCC 440. It is equally well settled legal proposition that it is",

open to the State to prescribe conditions in the tender, prescribing the eligibility criteria and if the State can justify the tender conditions in the",

context of particular contract, the courts will not interfere and whenever there are different alternatives, it is not for the courts to suggest that a",

Please read,Instead of

At Page 12 4.3(A)(b),At Page 12 24.3(A)(b)

Satisfactorily completed as prime contractor,

at least one work of similar nature equal to the

value 33% of advertised amount in any one

year during last 5 years ending last date of the

month previous to the one in which the tenders

are invited.","Successful completion certificate at least one

similar work equal to 50% of total length of

work i.e. Design and construction of 500

meter span prestressed double lane bridge

including approach roads of length 1875

meter (1175 mtr on right side and 700 mtr on

left side) over river Ujh at Jothana (Kathua)

under CRF

At Page No. 13 4.7 1 Experience in similar

work","4.7 (1) Experience in Similar Works

Technical;

(i) The applicant shall provide evidence that it

has experience of successfully completing the

construction of similar nature of works in one

single bridge over perennial River/overflowing

water. The work should have executed by the

applicant individually as prime contractor.","(i) The applicant shall provide that it has

experience of successfully completing the

construction of similar nature of works in one

single bridge over perennial River/overflowing

water and having individual span of 35 M or

more during last five years. The work should

have executed by the applicant individually as

Prime Contractor of Pre-Stressed concrete

box type girder Bridge in bouldry strata.

If the eligibility criteria prescribed in the Notice Inviting Tender dated 01.01.2016 is read in conjunction with Corrigendum dated 25.01.2016,",

it is evident that a prospective bidder must have completed work of similar nature. From careful scrutiny of the amended as well as unamended,

eligibility criteria, it is axiomatic that the work of similar nature appears in amended as well as in unamended eligibility criteria. At the cost of",

repetition, it is noteworthy that scope of work has not been changed. Therefore, the expression ""The work of similar nature has to be read as",

analogous to work of construction of pre-stressed concrete box type girder bridge"".",

The Tender Evaluation Committee consisted of Managing Director, Financial Controller, General Manager (Central), General Manager and",

DGM, Unit-V of JKPCC Ltd. From the record of the Tender Evaluation Committee which has been annexed as Annexure-R1 with the petition, it",

is graphically clear that the Tender Evaluation Committee has taken into account the amended criteria as well, while evaluating the bids and the",

technical bid of the petitioner has been found to be non responsive. It is pertinent to mention that the aforesaid decision has been taken by a,

Committee of Experts and this Court cannot sit as Court of Appeal over the decision by a Committee consisting of experts. It is pertinent to,

mention that no allegations of mala fides have been made against the members of the Tender Evaluation Committee. The certificate annexed by the,

petitioner issued by the Executive Engineer, Power House Division shows that the petitioner has experience in Design, Investigation, Supply,",

Fabrication And Erection of 325 mtr Single Span Steel Motorable Suspension Bridge Including Construction of Abutments, Anchor Blocks, Wind",

Blocks And Associated Civil Works. Thus the aforesaid certificate also does not show that the petitioner has the requisite experience as provided,

under the amended eligibility criteria.,

Besides that, the petitioner in the communication dated 09.02.2016 addressed to Managing Director of JKPCC Ltd has itself stated that its",

tender should be considered on the basis of qualification/completion certificate of 325 mtr, Single Span Steel Motorable Suspension Bridge Over",

River Chenab at Trugal Assar District Doda. In the instant case, ""500 mtr span pre-stressed concrete double lane bridge including approaches has",

to be constructed. Thus in view of the stand taken by the petitioner itself in the communication dated 09.02.2016, the petitioner does not fulfil the",

eligibility criteria.,

The contention raised by learned counsel for the petitioner that the petitioner's bid was evaluated with reference to unamended eligibility criteria,

does not deserve acceptance as from perusal of Annexure-R1, it is evident that Tender Evaluation Committee has taken into account the amended",

eligibility criteria while evaluating the bid of the petitioner. Similarly the submission that the bid submitted by the petitioner is lower than that of,

respondent No.5, therefore petitioner should be awarded the contract also cannot be accepted as price is not the sole criteria for acceptance of",

the bid, it is only one of the factors. In view of the law laid down by Supreme Court in the case of Raunaq International (Supra). In the instant",

case, the Tender Evaluation Committee has found that the petitioners does not fulfil the eligibility criteria, therefore, the aforesaid question even",

otherwise does not arise for consideration. Since the counsel for the petitioner after advancing the arguments for a considerable period informed,

the Court that he had filed a supplementary affidavit today, this Court has not inclined to take the same on record. Accordingly, the same is not",

taken on record.,

In view of preceding analysis, I do not find any merit in the writ petition, the same fails and is hereby dismissed.",