Pradipta Ku. Behera vs State

The eligibility criteria contained in Clause 103(f), sub-clause (i) and (ii) incorporating in the Detail Tender Call Notice (for short ''DTCN'') as an integral component of the Invitation for Bids (for short ''IFB'') being Bid Identification No. EE/P&IWT(SD)-02/2014-15 is the subject matter of impugnment.

Heard Mr. Biswabihari Mohanty, learned counsel for the petitioner and Mr. J.P. Patnaik, learned Addl. Government Advocate for the opposite party.

Sans unnecessary details, the facts essential to be stated for the purpose of disposal of the present petition are that the petitioner who claims to be a registered ''A'' class P.W.D. Contractor under the Government of Orissa offered his the bid in the process referred to in the aforementioned IFB for the work ''Construction of Jetty & Waiting Hall (Public Rain Shelter) at Gandakula in Jagatsinghpur District. Three other bidders also participated. However, the bids were cancelled. Prior to the process, the Executive Engineer, Ports & IWT, South Division, Berhampur had floated Bid Identification No. EE/P&IWT(SD)-09/2013-14 also for the same work for an estimated amount of Rs. 85,00,000/- in which the petitioner had offered his bid and his tender was admitted. However, eventually, it was cancelled for which he approached this Court with W.P.(C) No. 13169 of 2014. The petitioner has pleaded that in the said writ proceeding, opposite party filed counter contending that the cancellation was on account of non-fulfillment of eligibility criteria prescribed by Clause 103(f), sub-clause (i) & (ii) of IFB in respect of the work applicable to both the process.

According to the petitioner, the bid capacity norms as contained in the aforementioned clause are wholly inapplicable for the works mentioned in the aforementioned two IFB i.e. Bid Identification No. EE/P&IWT(SD)-09/2013-14 and EE/P&IWT(SD)-02/2014-15 as the approximate value of the work had been quantified to be Rs. 85,00,000/-. The petitioner has pleaded with reference to the Office Memorandum No. 6300-FA-Codes-97/2011-W dated 26th June, 2011 of the Works Department of the Government of Orissa that the bid capacity clause as qualification criteria to be included in the DTCN as enjoined was meant for works valued above Rs. 3 crores only. The validity of Clause 103(f), sub-clause (i) & (ii) of the DTCN of the two process under scrutiny thus has been repudiated on this ground. Learned counsel for the petitioner has emphatically reiterated the above.

We have traversed the pleaded facts and have also closely perused the IFB No. EE/P&IWT(SD)-09/2013-14 and EE/P&IWT(SD)-02/2014-15 issued by the office of the Executive Engineer, Ports & IWT, South Division, Berhampur, Ganjam. The approximate value of the work referred to therein for which the petitioner had offered his bid is indeed Rs. 85,00,000/-.

Clause 103(f) of the DTCN enumerates the eligibility criteria of the bidders. Clause 103(f), sub-clause (i) & (ii) are quoted hereunder for ready reference.

f. To qualify for award of the contract, each bidder in its name should have in the last five years (2009-10 to 2013-14).

(i) Achieved a minimum annual financial turnover (in all classes of Civil Engineering Construction works only) 60% of amount put to bid i.e. of Rs. 51.00 lakhs at 2013-14 price level in any one financial year during the last five years i.e. from 2009-10 to 2013-14 (attested copy of certificate of Accountant and failure to produce the certificate in support will result in non-consideration of tender). Financial turnover of previous year shall be given weight age of 10% per year based on rupee value to bring them to 2013-14 Price level.

(ii) Satisfactorily completed a similar nature of work (construction of piled foundation water front structures in river/sea) not less than 1/3rd of the original contract value as a prime contractor of value not less than Rs. 28.00 lakhs at 2013-14 price level (Attested copy of certificate of authenticity is to be enclosed from the concerned Executive Engineer). Weightage of 10% per year shall be given on cost of completed works of previous years to bring them to 2013-14 price level. Failure to submit proof in support will result in non-consideration of the tender.

The contents of the Office Memorandum dated 16th June, 2011 as a whole are also extracted hereunder:

"WORKS DEPARTMENT OFFICE MEMORANDUM The 16th June, 2011

Subject-Inclusion of bid capacity clause as qualification criteria in the D.T.C.N.

No. 6300-FA-Codes-97/2011-W.- After careful consideration, Government have been pleased to include bid capacity clause as qualification criteria in the D.T.C.N. as follows. These stipulations shall apply to all works above Rs. 3 crores with immediate effect.

Bid Capacity:

Applicants who meet the minimum qualification criteria will be qualified only if their available bid capacity at the expected time of bidding is more than the total estimated cost of the works. The available bid capacity will be calculated as under:

Assessed Available Bid Capacity=(A*N*2-B), where

A=Maximum value of works executed in any one year during the last five years (updated to the current price level) rate of inflation may be taken as 10 percent per year (escalation factor) which will take into account the completed as well as works in progress.

B=Value of current price level of the existing commitments and ongoing works to be completed during the next years (period of completion of works for which bids are invited), and

N=In case of a joint venture, the available bid capacity will be applied for each partner to the extent of his proposed participation in the execution of the works.

The statement showing the value of existing commitments and ongoing works as well as the stipulated period of completion remaining for each of the works listed should be countersigned by the Engineer-in-Charge not below the rank of an Executive Engineer.

Escalation Factor.

Following enhancement factors will be used for the costs of works executed and the financial figures to a common base value for works completed in India:-

(Applicants should indicate actual figures of costs and amounts for the work executed by them without accounting for the above mentioned factors)

In case the financial figures and value of completed works are in foreign currency the above enhanced multiplying factors will not be applied. Instead, current market exchange rate (State Bank of India BC selling rate as on the last date of submission of the bid) will be applied for the purpose of conversion of amount in foreign currency into Indian rupees.

S. MEHER E.I.C.-cum-Secretary to Government"

As it would be evident from the Office Memorandum dated 16th June, 2011, the bid capacity clause as qualification criteria contemplated to be incorporated in the related DTCN was to apply to all works above Rs. 3 crores. The formula for assessment of the bid capacity has been detailed therein. A bare perusal of the texts of the Office Memorandum dated 16th June, 2011 and the contents of clause 103(f), sub-clause (i) & (ii) would demonstrate in unequivocal terms that those are not identical and therefore the plea that the bid capacity clause as qualification criteria comprehended in office memorandum dated 16.6.2011 has been arbitrarily and mechanically imposed for the works referred to in the IFB bid No. EE/P&IWT(SD)-09/2013-14 and EE/P&IWT(SD)-02/2014-15 is clearly untenable. It need not be over emphasized that a tender authority competent to award works of public nature is the sole Judge to determine amongst others the eligibility criteria of intending bidders therefor. In the process, it is unassailably open to it to prescribe the norms to assess the bid capacity of prospective participants. Such a prescription as a general requirement can be insisted to secure the quality of performance in the execution of the works in public interest. True, that depending upon the nature of the project and value thereof, the rigour and extent of the norms to assess the bid capacity may vary. However, the contention that no yardstick can at all be fixed in this regard is clearly unsustainable. No tenderer can dictate any authority the terms and conditions of a tender for execution of any work, the same being within the exclusive domain of the public authority to design the same in conformity with exigencies of the project involved. To reiterate, as would be evident from text of Clause 103(f), sub-clause (i) & (ii), the same is not a replica of the of Office Memorandum dated 16th June, 2011 and thus the challenge based on that presupposition is wholly misplaced. The tendering authority has in its wisdom and discretion modelled the eligibility criteria to assess the bid capacity. The norms to assess the bid capacity of the tenders for the work specified in the IFBs are per se not irrelevant, illogical or arbitrary. We, thus do not feel persuaded to sustain the assailment of Clause 103(f), sub-clause (i) & (ii) as laid in the present proceeding.

The petition fails and is dismissed.