M/S Star Construction vs State Of Bihar

Heard learned counsel for the petitioner and learned counsel for the respondents.

The present writ petition has been filed claiming the following reliefs :-

i. For setting aside the decision of the Technical Bid Committee as contained in Memo No. 4073 dated 21.12.2022 which is completely without jurisdiction as same was held after opening of the financial bid wherein the petitioner was declared L1 but even then by the said order the Technical Bid Committee recommended for cancellation of tender and re-tender on the basis of single successful bidder which was not applicable at this stage.

ii. For setting aside the Re-tender bearing Short Inviting Tender RWD / MR 3054 / 03 / E-Tender / 2022-23 issued with the signature of Executive Engineer, Rural Works Department, West, Division Raxaul, as the re-tender has been issued only after the petitioner was declared L-1 in the Financial Bid.

iii. For issuance of direction to the respondent authorities to execute agreement with the petitioner with respect to Tender ID 2022 EC BIH 1185574- 1, for which financial bid was opened on 26.08.2022 and the petitioner was declared to be L1 and subsequently after checking the document and taking affidavit from the petitioner the Superintending Engineer vide letter no.. 906 dated 20.09.2022 recommended for finalization of tender.

iv. For any other relief/reliefs for which the petitioner may be deemed entitled to”.

The short facts, according to the petitioner, are that one NIT bearing Short Inviting Tender RWD/MR 3054/03/ E-Tender / 2022-23 was issued with the signature of Executive Engineer, Rural Works Department, West, Work Division, Raxaul with respect to 24 works. The matter in issue confined to the item no. 16 of the aforementioned NIT which is as follows:-

Sl.

no.

District

Block

Name of Road

Length

Total Estimated cost (in Lakhs)

Cost of BOQ

Bid Security

16.

East Champaran

Aadapur

Lakhaura- Adapur R.E.O

Road to Bheriyahi MNP

1.85

155.64

10,000

3.1128

From the NIT, it would transpire that the date of issue of Notice Inviting Tender was 23.05.2022, period of downloading of tender document was from 1.06.2022 to 08.06.2022, the date, time and place of bid meeting was 01.06.2022, the last date and time of uploading tender document was 08.06.2022 up till 03.00 P.M. and the date, time of opening of technical bid was 08.06.2022 up till 03.30 P.M. The petitioner being class-I contractor and having fulfilling all eligibility criteria as per the NIT and MBD submitted tender well within time. Four other contractors besides the petitioner submitted their tender for the aforementioned work. The meeting of the technical bid committee was held on 16.06.2022 and out of the five contractors, three including the petitioner were declared eligible. After the decision of the Technical Bid Committee, the financial bid was also opened on 26.08.2022 at 12:22 P.M. wherein the petitioner was found to have quoted the lowest rate, i.e., 15.79%, but in spite thereof, the agreement was not executed and, therefore, the petitioner submitted an application on 06.09.2022 before the concerned Executive Engineer for execution of the agreement. Thereafter, the petitioner was also asked to provide justification for quoting minimum rate which the petitioner provided and, therefore, the Executive Engineer vide his letter no. 1125 dated 16.09.2022 address to the Superintending Engineer apprised him that the petitioner has already submitted justification for quoting rate of -15.79% which was being forwarded for appropriate decision. Accordingly, the Superintending Engineer vide letter no. 906 dated 20.09.2022 address to the Chief Engineer-3, RWD, Bihar, Patna to send all the documents including justification of the petitioner with recommendation for taking final decision in the tender. Thereafter, the only formality remained was to enter into an agreement with the petitioner and issue work order so that the work might be executed, but strangely, the Technical Bid Committee held another meeting on 21.12.2022 and took a fresh decision that out of five bidders, four bidders were technically disqualified and only the petitioner was qualified, therefore, the tender would come under the purview of single bidder and therefore, it might be cancelled and recommended for fresh NIT. Thereafter, a fresh NIT was issued bearing Short Inviting Tender RWD / MR 3054/03/ E-Tender / 2022-23 issued with the signature of Executive Engineer, Rural Works Department, West, Division Raxaul for the said work. Being aggrieved by the said decision of the respondent authorities, the petitioner filed the present Writ.

The learned counsel for the petitioner submitted that a fresh meeting of the Technical Bid Committee, declaring four bidders as ineligible and further recommending for cancelling the tender and issuing fresh NIT bearing Short Inviting Tender RWD / MR 3054/03/ E-Tender /2022-23 that too after opening of financial bid is highly arbitrary, illegal and shows biased attitude of the respondents and is a colourable exercise of power and could not be sustained in the eye of law. The learned counsel further submitted that the impugned decision of the Technical Bid Committee as contained in Memo No. 4073 dated 21.12.2022 issued under the signature of Engineer-In-Chief- 3, Patna is absolutely a nullity in the eye of law as the Technical Bid Committee sat and took decision to cancel the tender after opening the financial bid. The learned counsel further submitted that the re-tender bearing Short Inviting Tender RWD/MR 3054/03 / E-Tender / 2022-23 which has been issued as the consequences to the decision of the Technical Bid Committee as contained in Memo No. 4073 dated 21.12.2022 is also a nullity in the eye of law on the basis of cardinal principle decided by the Hon'ble Supreme Court of India reported in (2010) 9 SCC 496 "Kranti Associates Pvt. Ltd. Vs. Masood Ahmad Khan" which was also subsequently followed in (2019) 15 SCC 1 "Nareshbhai Bhagubhai Vs. Union of India". The learned counsel further submitted that the respondent authorities are duty bound to enter into an agreement with the petitioner on the basis of financial bid dated 26.08.2022. Thus, the learned counsel submitted that the entire action of the respondent authorities cancelling the tender and issuing fresh Short Inviting Tender is highly arbitrary, illegal, de hors the rule, colorable exercise of power and has caused serious prejudice to the interest of the petitioner.

On the other hand, the learned counsel for the respondents while justifying the action of the respondents submitted that the grievance of the petitioner is that though the Financial Bid was opened on 26.08.2022 but despite that the agreement was not executed for which the petitioner made an application on 26.09.2022 before the concerned Executive Engineer for execution of the Agreement. But the said Financial Bid was sent to the office of the concerned Superintending Engineer thereafter Chief Engineer-1, Rural and Works Department, Bihar, Patna. Meanwhile, prior to issuance of work order in Tender ID 118574 it came to the notice of the Respondents that the petitioner has been declared disqualified in another tender bearing No.-117736 under Works Division, Motihari due to invalid experience certificate. On the ground of being disqualified in Tender I.D. 117736 under Works Circle, Motihari, the Technical Bid Evaluation Committee reconvened its meeting on 20.10.2022 and re-evaluated technical Bid documents submitted by the bidders in tender ID in question bearing tender ID No.-118574 and declared the petitioner disqualified under Clause 4.4 A (b) of the MBD after reevaluating his technical bid and came to the decision that the work cannot be allotted to the petitioner despite it being L-1 in Financial Bid and accordingly decided to cancel the Tender ID-118574 and accordingly the decision was taken for inviting re-tender under Clause 30.1 of MBD vide proceeding dated-20.10.2022 issued under Memo No. 2997 dated-20.10.2022. The learned counsel further submitted that the petitioner raised objection against the aforesaid decision vide his letter No.-47 dated-13.11.2022 and in consideration thereof, the Technical Bid Evaluation Committee reconvened its meeting on 21.12.2022 for technical evaluation of the Bid documents submitted by all the bidders and declared the petitioner qualified on the basis of his experience certificate but as the another bidder did not extend their bid validity due to which the petitioner remained single tenderer, thereafter, the Technical Bid made Evaluation Committee recommendation for re-tender vide decision dated 21.12.2022 issued under Memo No.-4073 dated-21.12.2022 in the light of the Notification No.- 7806 dated-30.09.2016 whereby it has been instructed that let the re-tender be invited in case of single re-tenderer. However, the further process of re-tender has already been stayed vide letter No.-1344 dated-16.03.2022. Thus, in the facts and circumstances stated hereinabove, the learned counsel submitted that as the petitioner remained single tenderer in Tender ID No.-118574, so in the light of the dated- Notification No.-7806 30.09.2016, re-tender has been invited. Hence, no interference is required by this Court in this matter.

Having considered the material available on record and further considering the rival submission, it appears that the meeting of the technical bid committee was held on 16.06.2022 and out of the five contractors, three including the petitioner were declared eligible. Thereafter, the financial bid was also opened on 26.08.2022 at 12:22 P.M. wherein the petitioner was found to have quoted the lowest rate, i.e., 15.79%, but in spite thereof, the agreement was not executed for which the petitioner submitted an application on 06.09.2022 before the concerned Executive Engineer. Thereafter, the petitioner was asked to provide justification for quoting minimum rate which the petitioner provided and, therefore, the Executive Engineer vide his letter no. 1125 dated 16.09.2022 addressed to the Superintending Engineer apprised him that the petitioner has already submitted justification for quoting rate of -15.79% which was being forwarded for appropriate decision. Thereafter, the Superintending Engineer vide letter no. 906 dated 20.09.2022 address to the Chief Engineer-3, RWD, Bihar, Patna sent all the documents including justification of the petitioner with recommendation for taking final decision in the tender.

But surprisingly, the Technical Bid Committee held another meeting on 21.12.2022 and took a fresh decision that out of five bidders, four bidders were technically disqualified and only the petitioner was qualified, therefore, the tender would come under the purview of single bidder and therefore, it might be cancelled and recommended for fresh NIT. Thereafter, a fresh NIT was issued bearing Short Inviting Tender RWD / MR 3054/03/ E-Tender / 2022-23 issued with the signature of Executive Engineer, Rural Works Department, West, Division Raxaul for the said work.

On 28.02.2023, this Court passed the following order :-

“Concerned respondent is hereby directed to file counter-affidavit before the next date of hearing. In the counter-affidavit he must point out which is the relevant clause which permits him to revive the financial bid and proceed to revisit and undertake fresh technical bid while denying the alleged right which has already been created in favor of the petitioner.

Re-list this matter on 21.03.2023.

Fresh tender, if any, proceeded by the official respondents is hereby stayed till next date of hearing.”

In terms of the aforesaid order, the respondent nos. 3 to 5 have filed the counter affidavit. It will be relevant to quote paragraph nos. 8 to 14 of the aforesaid counter affidavit.

“8. That the grievance of the petitioner is that the Financial Bid was opened on 26.08.2022 but despite that the agreement was not executed for which the petitioner made an application on 26.09.2022 before the concerned Executive Engineer for execution of the Agreement.

That the said Financial Bid was sent to the office of the concerned Superintending Engineer thereafter Chief Engineer-1, Rural and Works Department, Bihar, Patna.

That in the meanwhile prior to issuance of work order in Tender ID 118574 it came to the notice of the Respondents that the petitioner has been declared disqualified in an another tender bearing No.-117736 under Works Division, Motihari due to invalid experience certificate.

That it is stated that on the ground of being disqualified in Tender I.D. 117736 under Works Circle, Motihari, the Technical Bid Evaluation Committee reconvened its meeting on 20.10.2022 and re-evaluated the Bid documents submitted by the bidders in tender ID in question bearing tender ID No.-118574 and declared the petitioner disqualified under Clause 4.4 A (b) of the MBD and came to the decision that the work cannot be allotted to the petitioner despite being L-1 in Financial Bid and accordingly decided to cancel the Tender ID-118574 and accordingly the decision was taken for inviting re- tender under Clause 30.1 of MBD vide proceeding dated-20.10.2022 issued under Memo No. 2997 dated-20.10.2022.

That the petitioner raised objection against the aforesaid decision vide his letter No.-47 dated-13.11.2022 and in consideration thereof the Technical Bid Evaluation Committee Reconvened its meeting on 21.12.2022 for technical evaluation of the Bid documents submitted by all the bidders and declared the petitioner qualified on the basis of one another experience certificate but as the another bidder did not extend their bid validity due to which the petitioner remained single tenderer, thereafter the Technical Bid made  Evaluation Committee recommendation for re-tender vide decision dated-21.12.2022 issued under Memo No.- 4073 dated-21.12.2022 in the light of the Notification No.- 7806 dated-30.09.2016 whereby it has been instructed that let the re-tender be invited in case of single renderer.

13.That it is stated here that however the further process of re-tender has already been stayed vide letter No.- 1344 dated-16.03.2022.

That in the facts and circumstances state hereinabove it is very humbly submitted that the as the petitioner remained single tenderer in Tender ID No.-118574 so in the light of the dated-Notification No.-7806 30.09.2016 re-tender has been invited however the same has been stayed in compliance of the order dated-28.02.2023 passed by the Hon’ble Court in CWJC No.-1849 of 2023.”

It is relevant to quote the decision of the Technical Bid Committee as contained in Memo No. 4073 dated 21.12.2022, which is impugned herein:-

From the records, it appears that out of five contractors, three including the petitioner were found eligible in the meeting of the technical bid committee held on 16.06.2022. Thereafter, the financial bid was opened on 26.08.2022 wherein the petitioner was found to have quoted the lowest rate. However, the Technical Bid Committee held further meeting on 20.10.2022 re-evaluating the technical bid and disqualified the petitioner as he was allegedly disqualified in some other tender due to submission of invalid experience certificate. On objection being raised by the petitioner, the Technical Bid Committee held another meeting on 21.12.2022 and took a fresh decision that out of five bidders, four bidders were technically disqualified and only the petitioner was qualified. Thus, the petitioner became single tenderer and the tender came under the purview of single bidder and, as such, it was cancelled and fresh NIT was recommended.

Thus, the aforesaid decision of the technical bid committee is completely without authority of law and jurisdiction as the same was held after opening of the financial bid wherein the petitioner was declared L1 but even then the Technical Bid Committee recommended for cancellation of tender and re-tender on the basis of single successful bidder.

Moreover, the learned counsel for the respondents has not been able to point out any relevant clause which permits the respondent to re-evaluate the technical bid after the financial bid has been opened and proceed to revisit and undertake fresh exercise regarding technical bid while denying the alleged right which has already accrued in favour of the petitioner.

In view of these facts and circumstances, the petitioner has made out a prima facie case. Accordingly, decision of the Technical Bid Committee dated 21.12.2022 and re-tender notice dated 19.12.2022 stand set-aside.

The concerned-respondent is hereby directed to proceed with the first tender notification dated 23.05.2022 bearing Short Inviting Tender RWD/MR 3054/03/E-Tender/2022-23 and complete the same within a period of three months.

Accordingly, the writ petition stands allowed.