Yadav Associates vs State of Raj. and Others

Mohammad Rafiq, J.

Both these writ petitions have been filed by M/s. Yadav Associates, a partnership firm which is a registered contractor with the Government of Rajasthan and raises common question of law and facts hence decided by this common order.

Respondent No. 2, Additional Chief Engineer, Water Resources Zone, Government of Rajasthan, Jaipur invited online tender vide tender notice published in daily newspaper dated 22.8.2013 for grant of contract for renovation of river training works, strengthening of banks of Roopa Rail River and restoration of Jaisamand feeder. The last date of submission of tender was 30.9.2013 and opening of tender proposal was 30.9.2013. The petitioner submitted online application before 30.9.2013 and also deposited the required technical bid and financial bid. The petitioner is aggrieved by condition No. 3.2(b), by which he was held to be non-responsive on account of breach of tender condition No. 3.2(b) which reads as under:-.

"3.2(b) The applicant shall have successful experience as prime contractor in completing at least one contract of a nature and complexity comparable to the proposed contract within last five financial years of value not less than 35% of G-schedule amount i.e. 290.87 x 35/100 = 101.80 Lacs. This completed contract shall include the quantities of following items mentioned below @ 35% of average annual quantities based on G-schedule.

The abstract of approximate quantities to be executed of main item:

A detailed note giving the details of such contract executed in past alongwith the certificate from employer or Engineer-in-charge not below the rank of Executive Engineer for having completed such work satisfactorily in the time should be appended.

Concerned Executive Engineer will verify all the certificates as produced by bidders and shall record a certificate that certificates attached by the bidder have been verified by him."

The petitioner earlier filed a Writ Petition No. 8611/2013 in which this Court required him to approach Additional Chief Secretary, Water Resources Department to decide his representation. The petitioner has reiterated the same arguments in the present petition that he was awarded four works vide NIT No. 18/2006-07 dated 1.12.2006. The petitioner successfully executed all those works. The respondents have wrongly invoked Condition No. 3.2. (b). According to the said condition applicant shall have successful experience as prime contractor in completing at least one contract of a nature and complexity comparable to the proposed contract, he would be required to have experience four out of five complexity proposed contracts. In the present case, in respect of Item No. 1, earth work/embarkment 19499.00 cum and in respect of pitching/Riprap/Boulder filling 1628.00 cum. The work experience of the petitioner, of four works awarded to him pursuant to NIT No. 18/2006-07 dated 1.12.2006 is much more than what is required in the present N.I.T. The petitioner has already executed earth work of 2,82,462,1111 and RR Masonry work 10755.38 cum. The respondents ought to therefore combine all the aforesaid four works to hold the petitioner technically qualified and he being the second lowest, the first lowest tenderer having backed out, should award the contract to him.

The learned counsel for the respondents submitted that the experience of the petitioner in four different works cannot be combined as that would be going against the condition of NIT which requires that the applicant "shall have successful experience as prime contractor in completing at least one contract of a nature and complexity comparable to the proposed contract within last five financial years".

This Court on 22.8.2014, considering that the financial bid of the petitioner, which was 34.90%, was higher than the offer of the lowest bidder. Since lowest bidder had not accepted the offer given by the respondents, this court permitted the respondents to float new tender in which the petitioner was also permitted to participate. It was directed that if he technically qualified therein, his financial bid apart from bid of others, technically qualified would be opened. However, final decision on financial bid may not be taken thereupon if comes above 34.90%. In that case, the petitioner would be considered as to why work should not be assigned to him @ 34.90% on which he was ready to work. The tender was directed to be floated within a period of one month and after assessing the bids for technical qualification, the financial bid would be opened but it was directed not to be finalised by the respondents.

It is submitted that pursuant to order passed by this Court on 22.8.2014 which was passed in presence of Mr. Ramesh Chand Yadav, Proprietor of petitioner-firm, the respondent Department published a fresh Notice Inviting Tender-03/2014-2015 on 10.9.2014. The Technical Bid was opened on 14.10.2014 against the three tenders namely M/s. Yaav Associates, Banswara; M/s. Rameshwar Lal Matoria and M/s. Shivji Singla and Sons. The office of Chief Engineer of the concerned Department informed the Additional Chief Engineer, Water Resources Divisions, Jaipur vide letter dated 29.1.2015 that none of the tenderers were found eligible in the Technical Bid and as such the Financial Bid was revoked and the said tender in question was rejected as per item No. 18 of the S.O.P. The Notice Inviting Tender of 10.9.2014 was rejected. The Department has now decided to split the work into two parts and therefore, fresh tenders will be invited for the same.

Contention of the learned counsel for the petitioner is that 4 different works awarded to the same NIT should be clubbed, cannot be accepted as this would be going against the very condition of NIT 3.2(b), which inter alia provides that applicant shall have successful experience as prime contractor in completing at least one contract of a nature and complexity comparable to the proposed contract within last five financial years.

The petitioner completed four works in past 5 years of excavation and embankment each of them did not satisfy the requirement of the respondents in tender condition No. 3.2(b). Even in second attempt pursuant to interim order passed by this Court, when none of the tenderer were found eligible in Technical Bids, the respondents revoked the financial bid and now the respondents have decided to invite a fresh tender but this time splitting the work into two parts. Hopefully, this difficulty would now be overcome by the petitioner. This fact has been stated by the respondents in their application No. 18481 dated 13.4.2015 in Para 9 that the Department has considered to split the work in two parts and thereafter to call fresh tenders for the same.

Thus, there is no infirmity in the fresh NIT No. 03/2014-2015. In that view of the matter, both the petitions are dismissed. It goes without saying that everybody is free to participate and take action in the tender process as per the condition of fresh Notice Inviting Tender.