Parida Constructions vs State Of Odisha And Others

Dr. A.K.Mishra, J

A detailed tender call notice was invited on 06.07.2018 under National Competitive Bidding Through e-procurement for construction of HL Bridge

Lune-Karandia near Dihabalarampur on Tikanpur-Dalanta Stand works by opposite party No.2. The date and time of opening of the tender (Technical

bid) was 10.08.2018 at 11.00A.M. One of the eligibility conditions as per Detailed Tender Call Notice (in short “DTCNâ€) vide Clause- 2.1(5) was

that the intending tender should have the total financial turn over in respect of the Civil Engineering Works of an amount not less than the amount put

to tender (as in Col.3 of the Table) during any 3 (three) financial years taken together of the last proceeding five financial years (starting from 2013-14

to 2017-18 excluding the current financial year). The financial turn over certificate for Civil Engineering Works was required to be submitted from the

Charted Accountant showing clearly the financial turn over financial year wise. It was also stipulated vide Clause 2.1 that the tenderer not fulfilling the

eligibility criteria could submit the tender on his own risk, as the tender would summarily be rejected.

The petitioner, a super class contractor, submitted his bid application Online with documents including Annual Turn Over certificate from Charted

Accountant. The approximate cost was Rs.45,70,54,874/-.

It is the case of the petitioner that on 17.09.2018 opposite party Nos. 2 and 3 evaluated the technical bid and found the petitioner qualified and

accordingly, he was informed in the official Website on 18.09.2018. Financial bid was opened on 19.09.2018 and petitioner‟s firm was found to have

quoted the lowest amount amongst four bidders. But on 11.10.2018 opposite party No.3 intimated that tender had been rejected during Technical

evaluation by the duly constituted committee for the reason „Disqualified‟ vide Annexure-1.

Averring that the act of opposite party Nos. 2 and 3 in disqualifying the petitioner after finding him qualified in the Technical bid is illegal and violative

of statutory provision of law, the prayer is made in this writ petition to quash Annexure-1 the letter dated 11.10.2018 disqualifying the petitioner and

Detailed Tender Call Notice (in short DTCN) vide Annexure-3 and also allow the petitioner to execute the work.

Opposite parties No.1, 2 and 4, the State and State Authorities, in their counter affidavit have submitted that the petitioner was not eligible for

having not met the total financial turnover required under Clause 2.1(5) of General Instructions to Tenderers and by mistake he was found eligible

which was rectified after receiving a complaint from opposite party No.5 and such bonafide mistake was communicated without any malafide.

Opposite party No.5 (Intervener), one of the bidders filed counter affidavit stating therein that petitioner was not eligible due to inadequate Annual

Turnover (in short “ATOâ€​) as furnished by him.

The petitioner has filed rejoinder quoting the details of the annual turnover submitted by him in the tender documents. The document is Annexure-

C/4.

Learned       senior       counsel       for       the        petitioner Mr.

P.K.Parhi submitted that once the petitioner-tenderer is found to be qualified and notified as such and his financial bid is found to be the lowest one

amongst four others, the rejection of his bid subsequently as disqualified is nothing but malafide and same having been done without giving opportunity

of hearing to the petitioner, the bid inviting tender is liable to be quashed.

5-A. Mr. P.P.Mohanty, learned Additional Government Advocate submitted that disqualified tenderer cannot be allowed to be qualified for the

bonafide mistake committed in course of verification of technical bid. He further submitted that the ATO certificate submitted by the petitioner as

tender document which is the basis of disqualification cannot be said to have been wrongly calculated or considered by the Tender Committee

subsequently. Learned counsel for opposite party No.5 submitted that the work cannot be entrusted to a disqualified ineligible tenderer.

The estimated cost of the work was Rs.45,70,54,874/- as per the DTCN. A tenderer for participation is required to show the total financial year

turnover in respect of Civil Engineering works of an amount not less than the above amount during the three financial years. In course of hearing

learned senior counsel Mr. Parhi does not dispute the ATO document filed by the petitioner vide Annexure-C/4. The amount year wise furnished

therein if calculated in any manner would not meet the eligibility requirement as far as ATO is concerned. This being the factual position, we have to

accept that a mistake was committed while evaluating the technical bid and basing upon such mistake, consequential process was undertaken upto

financial bid. It is only on 11.10.2018 mistake in technical evaluation was detected by the Tender Evaluation Committee who rejected the tender of the

petitioner as DTCN had stipulation of a clause with regard to eligibility criteria that tender can be summarily rejected if the tenderer is found to have

not fulfilled the eligibility criteria. If a mistake with regard to eligibility is detected subsequently, it cannot be said that the mistake is beyond correction.

No malafide can be attributed in the case at hand because the document containing ATO filed by the petitioner itself makes the petitioner ineligible for

participation.

Unless it is found that a decision making process or the decision taken by the authority bristles with malafide, arbitrariness or perversity, the writ

court shall not interfere with the decision of the tender accepting authority. In the case of Municipal Corporation, Ujjain & Anr. Vs. BVG India

Limited and Ors; reported in (2018) 5 SCC 462, the Hon‟ble Supreme Court has enumerated the scope of judicial review with regard to technical bid

in the following words:-

“50. Thus, the questions to be decided in this appeal are answered as follows:-

(a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of

technical qualification of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder;

(b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture,

cannot rely upon the technical qualifications of any 3rd Party for its qualification.

(c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its

conclusion inasmuch as unless the thresholds of malafides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where

a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint.â€​

For the aforesaid reasons, this Court is of the view that disqualification of petitioner in the aforesaid tender bid does not suffer from any arbitrary,

perverse or malafide action of opposite party Nos. 1, 2 and 3 and the petitioner is not entitled to any relief on judicial review of the tender in question.

In the result, the writ petition stands dismissed. There shall be no orders as to costs. The connected I.A. also stands dismissed.