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SL No,,Package No.,,No. of Bidder Participated,,Name of the Bidder,,Qualified/ Disqualified,Reason of Disqualification
1,,2,,3,,4,,5,6
Name of the Division, Kesinga",,,,,,,,,
1,OR-15-306,,3Nos.,,1,,Lokesh Sharma,Qualified,
,,,,,2,,Sibalal Kedia,Qualified,
,,,,,3,,Laxmi Narayan Jain,Qualified,
2,OR-15-309,,6Nos,,1,,B.K. Construction Co.,Qualified,
,,,,,2,,"Shrikishan and Company Pvt.
Ltd",Qualified,
,,,,,3,,Arali Infratech Pvt. Ltd,Qualified,
,,,,,4,,Sitaram Agrawal,Qualified,
,,,,,5,,Banti Kumar Agrawal,Qualified,
,,,,,6,,RBS Construction,Qualified,
3,OR-15-318,,4Nos,,1,,B.K. Construction Co,Qualified,
,,,,,2,,Hemanta Kumar Sharma,Qualified,
,,,,,3,,"Ram Kumar Agrawal Engineer
Pvt Ltd",Qualified,
,,,,,4,,Manoj Kumar Gupta,Qualified,
4,OR-15-320,,2Nos,,1,,Arati Infratech Pvt Ltd,Qualified,
,,,,,2,,Shree Balaji Engicons Pvt Ltd.,Qualified,
,,,,,,,,,
SL No.,Name of the Bidder,Findings,Remark,,,,,,
1,"SBN Nirman Construction
Pvt. Ltd. Super Class
Contractor","The bidder has not submitted
the valid VAT Clearance
Certificate as per Clause No.7
and Clauses 122 (b) of DTCN",Disqualified,,,,,,
2,"M/s Trinath Construction,
Special Class Contractor","Th e bidder fulfils the
minimum eligibility criteria as
per the DTCN and found
responsive",Qualified,,,,,,
3,"M/s Alekh Constructions,
Super Class Contractor","The bidder fulfills the
minimum eligibility criteria as
per DTCN and found
responsive",Qualified,,,,,,
4,"Sri Balakrishna Mohanty,
Super Class Contractor","The bidder fulfills the
minimum eligibility criteria as
per DTCN and found
responsive",Qualified,,,,,,
5,"M/ s H.L. Infrastructure,
Super Class Contactor","The bidder fulfills the
minimum eligibility as per
DTCN and found responsive",Qualified,,,,,,
6,"Sameer Kumar Bhuyan, Super
Class Contractor","The bidder fulfills the
minimum eligibility criteria as
per DTCN and found
responsive",Qualified,,,,,,
law. The learned Judge also said that if any body of persons has authority to issue directions the disobedience of which would be punishable as a criminal offence, that would be an indication that that authority is “Stateâ€. Shah, J., who",,,,,,,,,
delivered a separate judgment, agreeing with the conclusion reached by the majority, preferred to give a slightly different meaning to the expression “other authoritiesâ€. He said that authorities, constitutional or statutory, would fall within",,,,,,,,,
the expression “other authorities†only if they are invested with the sovereign power of the State, namely, the power to make rules and regulations which have the force of law. The ratio of this decision may thus be stated to be that a",,,,,,,,,
constitutional or statutory authority would be within the meaning of the expression “other authoritiesâ€, if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal",,,,,,,,,
consequence or it has the sovereign power to make rules and regulations having the force of law. This test was followed by Ray, C.J., in Sukhdev v. Bhagatram. Mathew, J., however, in the same case, propounded a broader test, namely,",,,,,,,,,
whether the statutory corporation or other body or authority, claimed to fall within the definition of  “Stateâ€, is an instrumentality or agency of Government: if it is, it would fall within the meaning of the expression ‘other authorities’",,,,,,,,,
and would be “Stateâ€. Whilst accepting the test laid down in Rajasthan Electricity Board v. Mohan Lal, and followed by Ray, C.J., in Sukhdev v. Bhagatram, we would, for reasons already discussed, prefer to adopt the test of",,,,,,,,,
Governmental instrumentality or agency as one more test and perhaps a more satisfactory one for determining whether a statutory corporation, body or other authority falls within the definition of “Stateâ€. If a statutory corporation, body or",,,,,,,,,
other authority is an instrumentality or agency of the Government, it would be an “authority†and therefore “State†within the meaning of that expression in Article 12.â€",,,,,,,,,
He has also relied upon the decision in the case of W.B. State Electricity Board â€"v- Patel Engineering Co. Ltd. and others, reported in (2001) 2 SCC 451, wherein the Hon’ble Supreme Court at paragraph-24 has observed as follows:",,,,,,,,,
“24. The controversy in this case has arisen at the threshold. It cannot be disputed that this is an international competitive bidding which postulates keen competition and high efficiency. The bidders have or should have assistance of technical experts. The degree,,,,,,,,,
of care required in such a bidding is greater than in ordinary local bids for small works. It is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract. The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all",,,,,,,,,
bound by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfill prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach,",,,,,,,,,
otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law",,,,,,,,,
should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency",,,,,,,,,
and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to,,,,,,,,,
relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public",,,,,,,,,
interest.â€,,,,,,,,,
Further, he has relied upon the decision in the case of Renaissance Distilleries and Breweries Ltd. â€"v- Government of NCT of Delhi & others, reported in (2007) 145 DLT 795 : 2007 SCC OnLine Del 1134, wherein the Delhi High Court at",,,,,,,,,
paragraphs-12, 25, 26 and 27 has observed as follows:",,,,,,,,,
“12. There can be no quarrel with the proposition that non-essential or ancillary/subsidiary requirement in the NIT can and ought to be waived. The test to determine whether a condition is essential or collateral has been stated by the Hon'ble Supreme Court in,,,,,,,,,
Kanhaiya Lal Aggarwal v. UOI, (2002) 6 SCC 315. It says that whether a condition in a tender is essential or collateral is to be ascertained by reference to the consequences of non compliance thereof. If non-fulfilment of the requirement results in rejection of tender,",,,,,,,,,
then it would be an essential part of the tender otherwise it is only a collateral term.,,,,,,,,,
It is well known that there is no fundamental right to manufacture or trade in liquor and other noxious items in view of their ill effects on the society. The State still grants licenses for manufacture and trade in liquor primarily to generate revenue for the State. Even,,,,,,,,,
VAT is a tax levied and collected by the State to enhance its revenue which is needed by the State to run the administration and carry out its obligations. It is therefore wrong to contend that the State, while acting through one of its limbs i.e. the excise department",,,,,,,,,
cannot prescribe a condition that the applicant for a liquor licence should have no outstanding sales tax/VAT dues. Even otherwise, the State is not obliged to deal with a person who may be a defaulter in payment of taxes. A defaulter in payment of one kind of tax can",,,,,,,,,
be reasonably assumed to have the propensity to conduct itself in the same manner in relation to other similar liabilities in future. The State can choose not to deal with such a defaulter. In our view, there is nothing unreasonable about it.",,,,,,,,,
From the above discussion, it follows that the condition prescribed in the NIT in question under Clause 2(x), is in fact an eligibility condition and since the petitioner did not fulfil the same, he had no right to tie considered in the tender process in question. When",,,,,,,,,
the bid of the petitioner was opened, the shortcoming in its bid and its ineligibility was discovered. If the respondent authorities are directed to entertain the petitioner's bid, it would lead to denial of opportunity to others similarly circumstanced, who might have been",,,,,,,,,
interested in submitting their bids for the tender in question, and who did not do so on account of, inter alia, condition No. 2(x) in the NIT. This is another reason why we find no merit in this petition [See G.J. Fernandez v. State of Karnataka, (1990) 2 SCC 488; R.D.",,,,,,,,,
Shetty v. Airport Authority of India, (1979) 3 SCC 489 : AIR 1979 SC 1628].",,,,,,,,,
In our view, the bid of the petitioner was rightly not considered by the respondent. The argument of the petitioner that he was the lowest bidder and that the State Exchequer would have gained additional revenue of Rs. 3.6 crores for the year in question had its bid",,,,,,,,,
been accepted, though attractive, is without any merit. Since the petitioner was not eligible, and its bid was non-responsive, the rates offered by the petitioner are of no consequences and cannot be looked at for any purposes. Pre qualification/eligibility conditions are",,,,,,,,,
essential conditions, non-fulfilment of which result in the rejection of the tender [See G.J. Fernandez (supra); Kanhaiya Lal Aggarwal (supra)]. The tender conditions must be adhered to and followed by the bidders scrupulously. We may only refer to the decisions of",,,,,,,,,
the Hon'ble Supreme Court in W.B. State Electricity Board v. Patel Engineering, (2001) 2 SCC 451.â€",,,,,,,,,
He, therefore, contended that the view taken by the State Government relating to the bid of opposite party no. 7, which has been accepted by the opposite party no. 5, is liable to be set aside.",,,,,,,,,
On a query from the Court, it has come on record that the bid of opposite party no. 7 is lower than the petitioner and therefore, he has no say on the price bid of opposite party no. 7.",,,,,,,,,
Learned counsel for the opposite parties-State has contended that the Proprietorship firm was converted to Partnership firm and the certificate, which has been produced, has been verified by the Committee and the Committee dealing with",,,,,,,,,
each of the contentions raised by the petitioner has answered the same giving cogent reasons. It is also contended that the language employed in Clause-4.4A and 4. 4B of the ITB are not qualification, but mere instructions. There is no tax",,,,,,,,,
dues of opposite party no. 7 and there is nothing on record to show that the partnership firm has any tax dues. Because of the order passed by this Court on 26.9.2017, the tender is not finalized and even if after finalization of the tender, valid",,,,,,,,,
VAT clearance or other certificates are not produced by the successful bidder, it will be open for the State Government to take a fresh decision even if the Committee has cleared the same. He further contended that in view of Clause-3, 4",,,,,,,,,
and 5 of the Resolution, 2014, the benefit is to be granted to every Contractor in all the scheme of the Central Government which has been implemented by the State Government uniformly. In that view of the matter, the Resolution, 2014 is",,,,,,,,,
made applicable in this case also. The opposite party no. 7 has also supported the State Government and contended that the technical bid of the firm has been accepted being in conformity with the tender conditions. The same firm which was,,,,,,,,,
a proprietorship firm is converted into Partnership firm, therefore, the views of the individual Proprietorship firm are to be taken into consideration as Partnership firm instead of Proprietorship firm.",,,,,,,,,
Further, he contended that the writ petition being filed after having participated in the contract, it is not open for the petitioner to challenge the procedure and the writ petition deserves to be dismissed.",,,,,,,,,
We have heard learned counsel for the parties.,,,,,,,,,
Before proceeding with the matter, it will not be out of place to mention here that the tender is meant for the public work at Kalahandi district, which is a backward area, where for the access to the poor people, construction of road is",,,,,,,,,
required to be expedited and because of the intervention of the Court, the Project is pending for more than one year without being completed.",,,,,,,,,
While considering the matter, one has to consider whether the VAT Clearance Certificate is a qualification or procedural requirement. On going through the record, it has come to our knowledge that the Proprietorship firm is converted into",,,,,,,,,
a Partnership firm in the same name and the certificate which has been issued by the tax authority, the name of firm M/s R.B.S. Constructions as a Proprietorship firm was on record and therefore, on a technical ground, the firm was a",,,,,,,,,
Partnership firm and Proprietorship firm has produced a certificate. The tax authority issued certificate in the name of the construction company, which was on record on the date of issuance of certificate. However, it will be open for the",,,,,,,,,
State Government to scrutinize and consider the same. The State Government having accepted the same, it is difficult for us to say that the acceptance of the State Government is arbitrary in absence of any material to the contrary. In that",,,,,,,,,
view of the matter, the contention of the learned counsel for the petitioner that in view of the judgment of Airport Authority as well as other judgments of the Hon’ble Supreme Court, the opposite parties have committed serious error and",,,,,,,,,
the same are without any basis, is devoid of any merit, as submission of VAT Clearance Certificate is not a qualification for consideration of the technical bid, but the same only with a view to see that there are no tax dues of the bidders in the",,,,,,,,,
fray. From the record, it is apparent that there are no tax dues of the partnership firm towards VAT. In that view of the matter, the decisions cited by learned counsel for the petitioner are not applicable to the facts of the present case.",,,,,,,,,
In our considered opinion, the decision of the State Government is just and proper. Thus, the writ petition being devoid of any merit deserves to be dismissed and the same is dismissed.",,,,,,,,,
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