Sgf Infra Private Limited vs State Of J&K And Other

The petitioner approached this court seeking quashing of e-NIT No. 11 of 2019-20 dated 28.05.2019. Further prayer has been made seeking a

direction to the respondents to complete the tendering process initiated by e-NIT No.34 of 2018-19 dated 09.02.2019.

Learned counsel for the petitioner submitted that in e-NIT No. 34 of 2018-19 was issued on 09.02.2019 for improvement and upgradation of road

from Kanda to Ransoo. Specific quantities of the material were mentioned and the rates were to be furnished accordingly. Before the last date of

submission of bids, a corrigendum was issued on 13.02.2019 changing the quantity of different items. The petitioner submitted his bids on-line along

with hard copy. In the bid submitted in the template the quantities of the material as changed with the corrigendum issued on 13.02.2019, was not

reflected. The petitioner had submitted his rates as per the revised quantity. Financial bids were opened on 24.05.2019. Evaluation was not done as

per the quantities mentioned in the corrigendum. Instead of carrying out the correction, fresh tender was issued. As the financials of the petitioner

were open, in the process of issuance of fresh tender, the petitioner was ousted as other competitors quoted lesser rates. The petitioner was otherwise

not in a position to quote rates less than what were quoted earlier. The fresh tender was issued on 28.05.2019. The financial bids therein were opened

on 07.06.2019.

Relying upon the judgment of Hon’ble the Supreme Court in the case of Maa Binda Express Carrier and another v. North East Frontier

Railway and others, (2014) 3 SCC 760 and also judgment of this Court in passed in OWP No. 1505/2017 titled M/s B. S. Limited v. State and others

decided on 23.03.2018, it was submitted that the conditions in NIT cannot be tailor-made. Every bidder has to be treated equally. In the case in hand,

the petitioner has been ousted with a design. Otherwise, the earlier bids could have been evaluated with modified quantities.

On the other hand, learned counsel for the respondents submitted that as per the conditions in the tender document, bids were to be submitted only

on-line and no hard copy was required. Once submitted, no change was permitted. The bids submitted were much more than the reserve price and the

same were as per the requirements specified in the tender document before the corrigendum was issued. The petitioner was satisfied when the earlier

tender notice was withdrawn and a fresh one was issued. He filed the present petition on 14.06.2019 after the financial bids even in the fresh NIT

issued had been opened. Admittedly, the petitioner was not the bidder in the fresh NIT issued. Earlier NIT was withdrawn as there was technical

defect. Even otherwise, Clause-27 in the tender document clearly permitted the competent authority to withdraw or accept/reject any bid. Even

negotiations were also permissible. The rates quoted by the bidders in the fresh tender notice issued are far below the estimated cost whereas the

petitioner had quoted much more. Substantial public money will be saved.

Heard learned counsel for the parties and perused the paper book.

Briefly the facts as emerged from the pleadings and the arguments raised are that e-NIT No.34 of 2018-19 was issued on 09.02.2019, inviting

tenders for the work titled as improvement /upgradation of road from Kanda to Ransoo. The tender notice was issued on 09.02.2019. Technical bids

were to be opened on 02.03.2019 and thereafter the financial bids were to be opened. Before the date fixed for opening of technical bids, the

corrigendum was issued on 13.02.2019 changing the quantities required for certain items as in the tender document specific rates were to be quoted

for different items. All the bids were to be submitted on-line. No change was permitted once the bid was uploaded. The petitioner submitted his bid

on-line quoting the rates as per the changed quantity. The financial bids were opened on 24.05.2019 and finding that there were certain technical

defects, the same was withdrawn and therefore, e-NIT No.11 of 2019-20 was issued on 28.05.2019. The petitioner did not submit his bid in the

aforesaid fresh NIT issued nor he raised any issue regarding withdrawal of the e-NIT No. 34 of 2018-19 dated 09.02.2019, where he had submitted

his bid.

The estimated cost of the project was Rs. 1787.09 lacs, whereas the bids submitted by the three bidders including the petitioner were much higher.

The bid submitted by the petitioner was Rs. 25,77,67,080/-. He was otherwise also not the L1 as the lowest bid was Rs. 25,74,06,228/-. Offers

received from various bidders were much more than the estimated cost of the project. The same was withdrawn and a fresh NIT was issued. Even in

that, though the quantities of certain materials were changed, the estimated cost remained the same i.e. Rs. 1787.09 lacs. Fresh NIT No. 11 of 19-20

dated 28.05.2019 was issued. The last date of submission of bids on-line was 06.06.2019. After evaluation of the technical bids in the fresh tender

notice, financial bids were opened and three offers were received quoting the following rates.

i. New Jehlum Construction Co. L1 = Rs. 13,95,31660.00

ii. Ghulam Nabi Mir L2 = Rs. 15,19,02650.00

iii. M/s Construction Engineers L3 = Rs. 15,36,93840.00

The petitioner was not the bidder in the aforesaid tender notice. It is only after opening of the aforesaid financial bids in the fresh tender notice

issued, that the petitioner filed the present petition challenging withdrawal of the earlier tender notice e-NIT No.34 of 2018-19 dated 09.02.2019 and

praying for completion of the process initiated vide aforesaid tender notice.

A perusal of the rates quoted by the bidders in the fresh NIT issued shows that there is a difference of about Rs. 10 Crores in the bids received

now.

Further the issue sought to be raised by the petitioner that the department should have evaluated the bids received in pursuance to the first tender

notice issued considering the revised quantities and should have considered that the template on the web portal where on-line bids were to be

submitted had not been corrected with reference to revised quantities, is merely to be noticed and rejected as the case of the petitioner himself is that

he had submitted the bid considering the revised quantities though in the column of quantity, old numbers were mentioned. In case, the petitioner had

any grievance with regard to the same, he should have raised it at the appropriate time and not when the tender notice itself had been withdrawn and

even in pursuance to the fresh tender notice issued, the financial bid had also been opened. The State would have suffered substantial loss of more

than Rs. 10 crores of rupees in case the bids received in two tender are compared. There was no bar on the petitioner to have submitted his bid in the

fresh tender notice if he was fair. The petitioner having not done so has certainly missed the bus.

There is no merit in the present petition. The same is accordingly dismissed.