Bombay High Court
M/S. Mana Constructions Thr. ... vs Agricultural Produce Market ... on 7 July, 2016
Bench: B.P. Dharmadhikari
wp1745.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 1745 OF 2016
AND
WRIT PETITION NO. 1746 OF 2016
WRIT PETITION NO. 1745 OF 2016
M/s. Mana Constructions,
A registered partnership firm
having its office at Second Floor,
206/9, Milk Scheme Housing
Society, Near G.P.O. Square,
Civil Lines, Nagpur 440 001
through its partner Shri Girish
Namdeorao Manapure. ... PETITIONER
Versus
1. Agricultural Produce Market
Committee, Katol, District -
Nagpur through its Chairman/
Secretary.
2. M/s. Shriram Construction
Company, Ashray Niwas,
Rajarshishahu Nagar, Anjangaon
Surji, District - Amravati 440 705,
through its Partner.
3. M/s. Friends Infracon Private Ltd.,
Friends Colony, Khat Road,
Bhandara 441 904.
4. M/s. Uday Constructions,
33, Kapse Layout, Dindayal Nagar,
Nagpur. ... RESPONDENTS
Shri A.A. Naik, Advocate for the petitioner.
Shri D.V. Chauhan, Advocate for respondent No. 1.
Shri H.D. Dangre, Advocate for respondent No. 2.
.....
::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:24 :::
wp1745.16 2
WRIT PETITION NO. 1746 OF 2016
M/s. Mana Constructions,
A registered partnership firm
having its office at Second Floor,
206/9, Milk Scheme Housing
Society, Near G.P.O. Square,
Civil Lines, Nagpur 440 001
through its partner Shri Girish
Namdeorao Manapure. ... PETITIONER
Versus
1. Agricultural Produce Market
Committee, Katol, District -
Nagpur through its Chairman/
Secretary.
2. M/s. Shriram Construction
Company, Ashray Niwas,
Rajarshishahu Nagar, Anjangaon
Surji, District - Amravati 440 705,
through its Partner. ... RESPONDENTS
Shri A.A. Naik, Advocate for the petitioner.
Shri D.V. Chauhan, Advocate for respondent No. 1.
Shri H.D. Dangre, Advocate for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE OF RESERVE : JUNE 21, 2016.
DATE OF PRONOUNCEMENT : JULY 07, 2016.
JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
The same petitioner challenges allotment of works
to same Respondent No. 2 in tender floated by Respondent No.
1 - Agricultural Produce Marketing Committee (A.P.M.C.).
2. In Writ Petition No. 1745 of 2016, Respondent No.
2 has submitted lowest offer while the petitioner is at Sr. No. 4.
Rates of respondent Nos. 3 & 4 stand at Sr. Nos. 2 & 3
respectively. The tender has been invited for construction of
Grain Auction Hall Nos. 3 & 4, Entrance Gate and Compound
Wall in the Principal Market Yard (Orange) of A.P.M.C.
3.
In Writ Petition No. 1746 of 2016, Respondent No.
2 has submitted lowest offer while the petitioner is just above
it. That tender is for construction of Traders Shop No. 7 + 7A
and 8 + 8A in the Principal Market Yard (Orange) of A.P.M.C.
4. In both these matters, this Court has issued notice
on 10.03.2016 and though the respondents were allowed to
complete other procedural formalities, issuance of work order
has been stayed. This interim order continues to operate even
today. We have, at request of the parties, heard the matters
finally by issuing Rule & making it returnable forthwith.
5. The principal bone of contention between the
parties is whether compliance with Condition No. 9(6), (10) &
(11) of NIT (notice inviting tender) is mandatory or whether
substantial compliance therewith is sufficient. Clause No. 9 is
about tender schedule and on next page of NIT documents to
be put in first envelop or envelop No. 1 are stipulated. At Sr.
No. 6 is the list of machinery available with the tenderer with
ownership document (scanned from original) which will be
exclusively made available on this work. Document at Sr. No.10
is - Scanned from original of successfully completed minimum
single work of Building costing not less than Rs.384.00 lacs
during last three financial (2012-13, 2013-14, 2014-15) years.
(Such certificate to be obtained from the Officer not below the
Rank of Ex. Engineer or equivalent). Petty contracted or
subleted work will not be considered. (Completed work carried
out in Govt. / Semi Govt. Bodies will only be considered, no
private work will be considered; and document No. 11 is -
Scanned from original of satisfactorily executed the minimum
quantities of following item during last three (2012-13, 2013-
14, 2014-15) years. (Such certificates are required to be
obtained from the Officer not below the Rank of Ex. Engineer
or equivalent). Completed work carried out in Govt. / Semi
Govt. Bodies will only be considered.
i) Concrete of grade M-20 - (600 Cu.m. (minimum)
ii) TMT Bar Reinforcement - 100.00 Mt. (minimum)
iii) Brick Masonary (230 mm wide) - 400.00 cu.m.
(minimum)
iv) Structural Steel work - 100 Mt.
v) G.I. precoate dmeta colour sheet of 0.50 mm thick
- 3000.00 sq.m.
6. We have heard Shri A.A. Naik, learned counsel, on
behalf of the petitioner in both the petitions, Shri D.V.
Chauhan, learned counsel for respondent No. 1 - A.P.M.C. and
Shri H.D. Dangre, learned counsel for respondent No. 2 -
successful bidder.
7. Shri Naik, learned counsel invites attention to
Condition No. 7 to show that while considering the technical
bid, documents in envelop 1 are to be perused and contractors
need to be shortlisted for financial bidding process. The
shortlisted contractors are to be intimated accordingly by e-
mail. The petitioner never received any such e-mail. He
further states that as per NIT, single work of building in
Document No. 10 should have been completed during last three
financial years as stipulated therein and its value cannot be less
than Rs.384.00 lac. Respondent No. 3 does not possess this
qualification. As such, its technical bid needed to be rejected
and his financial bid could not have been opened. It is further
submitted that as per Clause Nos. 10 and 11, completion is to
be certified by an officer not below the rank of Executive
Engineer or of equivalent rank. The documents submitted by
the petitioner are certified by an officer who is superior in rank
to the Executive Engineer while the documents of Respondent
No. 2 are certified by an Architect, who cannot be compared
with the Executive Engineer and, therefore, can not be said to
be holding any post or an equivalent post.
8. To substantiate his contention, he has invited our
attention to various documents on record. He has relied upon
some judgments to which we will make reference during the
discussion at appropriate place.
9. Inviting attention to reply affidavit filed on behalf of
Respondent No. 1 - A.P.M.C., he states that there effort is to
point out that certificates submitted by the petitioner are also
not signed by the Executive Engineer and proof of ownership of
machinery was not submitted by him. He contends that in
comparative chart prepared for the purpose of processing the
bids after the stage of opening of first envelop, these defects are
not noted. Similarly, the letter of Architect dated 11.02.2016
pointing out absence of ownership documents was also not
uploaded on website. The petitioner has along with rejoinder
placed documents to show that the Engineer issuing certificates
in its case was much above the rank of Executive Engineer.
Similarly, the defect of not uploading ownership documents is
urged to be not fatal. The learned counsel submits that the
petitioner is Class 'A' contractor registered with State Public
Works Department (P.W.D.) and it is, therefore, apparent that
he owns necessary vehicles and can make it available.
10. In the alternative and without prejudice to all his
contentions, he submits that if this Court is not satisfied and
tender cannot be awarded to the petitioner, a fresh tender must
be directed to be called for, as the respondent No. 2 is not
eligible.
11. Shri Chauhan, learned counsel appearing on behalf
of the A.P.M.C. submits that in contractual matters, there
cannot be any challenge to a decision to award contract to the
lowest bidder unless some material fault in decision making
process is pointed out. Since 2009, the efforts were being
made to commence and complete these works and hence in
2015, it had become a pressing need. The cost of construction
was rising upwards and hence urgency shown by the A.P.M.C.
cannot be questioned. He points out that there are no
allegations of malafides against the officer or office bearers of
A.P.M.C. The benefit of power of relaxation was extended to all
participants due to this urgency.
12. He adds the data on the basis of which comparative
chart for evaluating technical bids was prepared, was already
uploaded on 08.02.2016 and though the petitioner was aware
of it, still it chose to approach this Court on 08.03.2016 i.e.
after some delay. There is no explanation therefor and in
tender matters, the contractor like the petitioner must show
due diligence.
13. The chart prepared by the Architect, on the basis of
which the petitioner has advanced his arguments, does not look
into all documents of Respondent No. 2 and hence all
arguments based upon it are misconceived. Respondent No. 2
has also furnished the documents signed by the Executive
Engineer and those documents show that it satisfies necessary
eligibility conditions. The said respondent has done work of
construction with Local bodies, A.P.M.C. and an aided
recognized educational society. These bodies do not have post
of Executive Engineer and hence certificate issued by the
competent equivalent person, who has supervised the work of
Respondent No. 2 on their behalf is treated as a certificate
issued by the Executive Engineer. The contents of this
certificate are known to everybody and the petitioner has never
disputed those contents or its correctness. He, therefore,
submits that in such situation, submission that Respondent No.
2 did not submit necessary certificate issued by the Executive
Engineer is ill-founded.
14. The petitioner also did not submit documents
supporting ownership of vehicles and the Architect of A.P.M.C.
has pointed out this defect on 11.02.2016. Shri Chauhan, the
learned counsel submits that the petitioner was permitted to
cure the lacuna & place those documents on record later on.
15. The judgment of the Hon'ble Apex Court in the case
of B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd. & Ors.,
reported at (2006) 11 SCC 548, is pressed into service by him
to urge that all participants must be treated equally and Article
14 of the Constitution of India cannot be violated. The
petitioner has not shown absence of either the expertise or
capacity in Respondent No. 2 and has not argued that
Respondent No. 2 is handicapped in completing the tendered
work. He submits that the conditions of NIT of which violation
is alleged by the petitioner are not essential conditions but only
incidental one. According to him, there is no stipulation in NIT
(notice inviting tender) that failure to submit such documents
or certificates would result in rejection of offer or an
opportunity to participate.
16. The report prepared by the A.P.M.C. on 10.02.2016
is relied upon by him to demonstrate that so called technical
breaches have been overlooked while processing the offers. The
tender process continued through various stages on prescribed
dates as earlier informed and the petitioner was aware of the
date on which financial bids were to be opened. The petitioner
has not pointed out any prejudice caused to it in the matter.
Shri Chauhan, learned counsel relies upon the judgment of the
Hon'ble Apex Court in the case of AIR India Ltd. vs. Cochin
International Airport Ltd. & Anr., reported at (2000) 2 SCC 617,
to state the scope of intervention available to writ court in
contractual matters.
17. Shri Dangre, learned counsel, on behalf of
Respondent No. 2 - Contractor, in both the matters, submits
that proper reading of clause 1.7 shows that it places emphasis
on cost and quality of work done by the contractor to find out
his expertise. He wants to read a coma mark (",") in said
clause 10 prescribing the certificate of Executive engineer after
the word "costing" to substantiate his argument. He contends
that there is no need for contractor to demonstrate that he has
completed single work of Rs.384.00 lac in previous three years.
Similarly, as the experience demanded is not only of
Government but also of Semi-Government and other Bodies,
contention that the certificate must be issued by the Executive
Engineer, is erroneous. He submits that word "equivalent" used
after the word "Executive Engineer" needs to be construed by
correlating the same with Government body or Local body or
other institutions whose work is completed by the contractor
bidding in the process. The person issuing certificate must have
Technical expertise and capacity as also competency to issue it
on behalf of Body for whom work is done by the Contractor.
He invites attention to the provisions of The Architects Act,
1972, to urge that the Architects are independent and
statutorily recognized persons with necessary expertise and
competency. Respondent No. 1 - APMC has verified
documents furnished by Respondent No. 2 beforehand and
after filing of matter before this Court. The Architect who has
issued certificate to Respondent No. 2 is found competent and
certificates issued by him are genuine. Hence, opening of
financial bid of Respondent No. 2 on the basis of said
certificates is as per law. He relies upon the judgment of the
Hon'ble Apex Court in the case of B.S.N. Joshi & Sons Ltd. vs.
Nair Coal Services Ltd. & Anr., paragraph 66 (supra). He
further submits that even certificates uploaded by the petitioner
are not issued by the Executive Engineer. Though the
petitioner has filed rejoinder on record, it has not explained
status of the officers, who has issued certificate or then status
of Director General, who has issued the work order. Only first
page of work order dated 05.08.2014 has been uploaded to
avoid its further verification.
18.
The reply affidavit filed by Respondent No. 2 on an
affidavit is relied upon to urge that necessary certificates and
documents are placed on record by Respondent No. 2. The
additional documents are also provided by him and the
Architect of Respondent No. 1 while preparing comparative
chart has looked into only said additional documents. He has
taken us through relevant certificates issued by the A.P.M.Cs. to
urge that as contents thereof are not in dispute and Respondent
No. 1 - A.P.M.C. has, after orders of this Court dated
14.06.2016, conducted verification again, the challenge to
those certificates issued by the Architect is misconceived. He
adds that chart prepared by the Architect of A.P.M.C. is not
primary evidence and basic documents made available on site
since 27.01.2016, when technical bid was opened, needed to be
perused. The petitioner did not object to these documents from
27.01.2016 till 22.02.2016 & filed writ petition only after it
learnt about rejection of its offer and did not refer to original
documents deliberately.
19. To explain the approach to be adopted in such
matters, he relies upon the judgment in the case of A 2 Z
Maintenance and Engineering Services Ltd., Gurgaon vs.
Maharashtra State Electricity Distribution Company Ltd.,
Mumbai & Anr., reported at 2010 (5) Mh. L.J. 794; Indian
Railway Catering and Tourism Corporation Ltd. & Anr. vs.
Doshion Veolia Water Solutions Private Ltd. & Ors., reported at
(2011) 13 SCC 364 and Tejas Constructions and Infrastructure
Pvt. Ltd. vs. Municipal Council, Sendhwa & Anr., reported at
(2012) 3 SCC 464. He concludes his arguments by submitting
that through the exercise undertaken by Respondent No. 1 -
A.P.M.C., offer of Respondent No. 2, which is 11% below, has
been accepted. Re-tender would result in extra costs and said
11% below offer of Respondent No. 2 which is about one year
back, is now still more on lower side, when compared with the
present rates. Considering the fact that the cost of construction
has gone up, re-tender would not be in public interest.
20. Shri Naik, learned counsel, in reply arguments
invites attention to sequence of events to urge that as per
programme, the petitioner ought to have been informed that
his technical bid was cleared and the financial bid would be
opened on 22.02.2016. This was never done and no e-mail was
forwarded to it. Respondent No. 1 - A.P.M.C. obtained orders
on 18.02.2016 and then opened financial bids on 22.02.2016.
The petitioner raised its objections on 24.02.2016 and
thereafter on 25.02.2016. However, the same have been
conveniently overlooked.
21. Respondent No. 2 was always aware that it was not
satisfying eligibility condition of single completed building
worth Rs.384.00 lac, hence, it relied upon certificates issued by
the Architect as also by the Executive Engineer. This shows
that the certificates issued by the Executive Engineer or then by
the Architect were not adequate and Respondent No. 2 had
knowledge of it. He relies upon the judgment of the Hon'ble
Apex Court in the case of B.S.N. Joshi & Sons Ltd. vs. Nair Coal
Services Ltd. & Anr. (supra), to urge that essential conditions
cannot be relaxed and certificate issued by the Executive
Engineer showing completion of single work at least worth
Rs.384.00 lac cannot be and could not have been ignored. He
also draws support from the Division Bench of this Court in the
case of A 2 Z Maintenance and Engineering Services Ltd.,
Gurgaon vs. Maharashtra State Electricity Distribution Company
Ltd., Mumbai & Anr. (supra).
22. Inviting attention to the certificates submitted by
the petitioner, completion of work worth Rs.458.28 lac is
pressed into service to urge that that by itself is sufficient to
qualify the petitioner. Strong reliance is placed upon the said
certificate dated 02.05.2015 and another certificate issued by
the very same authority on 20.01.2016 and the certificate
issued by Visvesvaraya National Institute of Technology
(V.N.I.T.), Nagpur, dated 12.08.2014 to show that these
documents conclusively establish eligibility of the petitioner.
The declaration placed on record by the Chief (Civil) of
Manganese Ore (India) Limited (M.O.I.L.) on 10.03.2016 about
his expertise status is also heavily relied upon.
23. The documents relied upon by Respondent No. 2
are questioned by urging that data contained only in relation to
last three years i.e. 2012-13, 2013-14 and 2014-15 can be
looked into in those certificates. The documents are in relation
to dam and not about building construction, hence, these
documents do not qualify it at all. He relies upon the judgment
dated 18.11.2015 in Writ Petition No. 5356 of 2015 (M/s. B.
Ganga Transport and Sai Trade Link Joint Venture vs. M/s.
Western Coalfields Limited & Anr.), to which one of us (B.P.
Dharmadhikari, J.) is a party, to submit that compliance with
this essential condition was must.
24. By way of abundant precaution, he adds that if the
conditions were to be relaxed, a fresh advertisement ought to
have been issued to enable all those who had similar
experience & produced the certificates issued by the authorities
other than the Executive Engineer or then who had not
completed single work worth Rs.384.00 lac in the last three
years; to participate.
25. The Hon'ble Apex Court in the case of B.S.N. Joshi
& Sons Ltd. vs. Nair Coal Services Ltd. & Ors., (supra) has
considered a tender invited by Maharashtra State Power
General Company Ltd. (MAHAGENCO) for coal liaisoning,
quality and quantity supervision. Contending that the appellant
before the Hon'ble Apex Court did not fulfill conditions 1.5(ii),
1.5(v) and 1.5(vii) of notice inviting tender, a Writ Petition
was filed before this Court and it was allowed. The conditions
are reproduced by the Hon'ble Apex Court in paragraph 8 of its
judgment. Condition No. 1.5(ii) required bidder to execute the
work of total minimum quantity of 5 million Metric Tons (MT)
per year for preceding five years and execution of work of total
quantity of 10 million MTs in any of the preceding five years.
As per clause (v), the bidder was required to possess
professionally competent staff and must have on its own roll
minimum manpower (strength) of 100 employees. As per
condition (vii), the bidder should not have been declared
defaulter from any Electricity Board/ Government/Semi-
Government/ Public Power Utility Companies during the last
three years. Consideration in paragraph 66 shows that
adherence to essential conditions is must. If body inviting
tender has no power of relaxation, it can not be exercised and
principle of strict compliance needs to be applied where it is
possible for all the parties to comply with all such conditions
fully. However, if a deviation is made in relation to all the
parties in regard to any of such conditions, ordinarily again a
power of relaxation may be held to be existing. The parties
who have taken the benefit of such relaxation are not permitted
to take a different stand in relation to compliance with another
part of tender, particularly when such party was not in a
position to comply with all the conditions. This is subject to
rider that Court should not find any relaxation of a condition
essential in nature. Such relaxation would be wholly illegal
and without jurisdiction. In the facts before it, term regarding
employment of 100 workmen was found to be satisfied on the
number of payment of PF contribution during the last financial
year and financial year looked into by PF authorities was
accepted as proper. Further, the compliance of work of 15
million MT in one of the years in preceding five years was also
accepted as valid. Hon'ble Apex Court found that appellant
handled far more coal cumulatively than required in preceding
5 years though it was not more than 5 MT in each year.
26. The Division Bench of this Court in A 2 Z
Maintenance and Engineering Services Ltd., Gurgaon vs.
Maharashtra State Electricity Distribution Company Ltd.,
Mumbai & Anr., (supra) considers the contentions that
notarization of Power of Attorney was not an essential
condition. It is not necessary for this Court to look into the
merits of said discussion. However in paragraph 37, after
relying upon the judgment of the Hon'ble Apex Court in the
case of B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd. &
Ors., (supra), the Division Bench has found that essential
conditions of eligibility need to be scrupulously complied with.
In paragraph 39, it has observed that whenever condition
stipulated in the tender requires an act to be done in a
particular manner and further lays down consequence of not
doing so, as disqualification to participate, such stipulation
constitutes an essential condition and compliance therewith is
mandatory. The Division Bench has found that failure to
furnish notarized Power of Attorney did not result in rejection
of tender itself and other participant was given an opportunity
to produce it while opportunity was declined to the petitioner.
Thus, on account of this, a relaxation of a condition was
perceived and discrimination was proved.
In Tejas Constructions and Infrastructure Private
27.
Limited vs. Municipal Council, Sendhwa & Anr., (supra), the
Hon'ble Apex Court has found that though audited balance
sheet or its certified copies were not produced, but the bidder
had produced turnover certified by the Chartered Accountant in
the year 2010-11. The appellant before the Hon'ble Apex Court
never disputed correctness thereof. The Hon'ble Apex Court
also noted that year 2010-11 was immediately preceding year
and audit of bidder company for that year was not completed.
Thus, in absence of allegations of any malafides or
arbitrariness, contention of the appellant that there was breach
of essential condition was negated.
28. In Indian Railway Catering and Tourism Corporation
Limited & Anr. vs. Doshion Veolia Water Solutions Private
Limited & Anr., (supra), the price quoted was required to be
lump sum, inclusive of all duties and taxes. The vendor was
required to indicate total excise duty amount included in the
price of plants and equipments. Consequence of not doing so
was not indicated. The Hon'ble Apex Court in this situation has
viewed the condition as not an essential one.
29. In AIR India Ltd. vs. Cochin International Airport Ltd.
& Anr., (supra), the Hon'ble Apex Court has held that the State
Government, its Corporations, instrumentalities and agencies
have the public duty to be fair to all concerned. Even if some
defects are found in the decision making process, great caution
should be exercised while using discretionary powers under
Article 226 of the Constitution of India. It is pointed out that
the larger and overwhelming public interest must be kept in
mind.
30. In Writ Petition No. 5356 of 2015 decided on
18.11.2015, this Court found that certificate regarding
availability of access to credit mandated by tender condition
was not issued by a Scheduled Bank. The certificate produced
by the petitioner was issued by a Chartered Accountant and it
only pointed out working capital available. The Division Bench
of this Court, therefore, found that it only satisfied partially the
essential condition.
31. It is in this background that we have to evaluate the
pressing situation.
32. The absence of certificate issued by the Executive
Engineer in favour of Respondent No. 2 and no completion of
single work of building costing not less than Rs.384.00 lac are
the vices alleged in the bid of Respondent No. 2. Not supplying
ownership documents of machinery, to be made available
exclusively for tender work, is the defect alleged in the bid of
present petitioner. The scheme of relevant clauses is already
stated by us above. Respondent No. 1 - A.P.M.C. has submitted
that it has relaxed these conditions for all as the work was
getting delayed hopelessly and needed to be completed
urgently.
33. Though A.P.M.C. has urged urgency, no particular
prejudice as such has been pointed out and reasons for needing
such type of construction urgently are also not pleaded. The
fact that work is scheduled to be executed since long, cannot by
itself be the reason to make it urgent. Respondent No. 1 -
A.P.M.C. being public body and State within the meaning of
Article 12 of the Constitution of India, cannot disregard the
provisions of law. It can not act arbitrarily & has to preserve
transparency.
34. The language of clause 6 reveals that first envelop
has to contain list of machinery which tenderer agreed to keep
reserved exclusively for the tendered work. He has to furnish
ownership documents scanned from original in that envelop.
Thus, Respondent No. 1 has insisted upon production of proof
of ownership of machinery to be provided exclusively by
tenderer for its work. The emphasis that such document must
be scanned from original shows that Respondent No. 1 -
desired bidder to make available its own machinery and not to
depend upon the machinery taken on hire or procured from
some other source. Its insistence that such machinery must be
made available "exclusively" for tender work, again highlights
this aspect.
35. The successful completion of minimum single work
of building costing not less than Rs. 384.00 lac during financial
years 2012-13, 2013-14 and 2014-15 is again emphasized by
interposing the word "minimum" which qualifies the word
"single". Employing these two words together shows a definite
intention of the employer i.e. authority inviting tenders. Hence,
bidder has to show at least one completed "building" of not less
than Rs.384.00 lac during these three financial years. The word
"building" has not been used here as adjective but as a noun.
The work has to be of a building & no other structure. Hence,
more than one such work completed during this period
cumulatively costing not less than Rs.384.00 lac do not qualify
for consideration. Similarly apart from the "building", the
other construction works will also not qualify. We are unable to
read any "," i.e. coma mark in this clause as urged by Adv.
Dangre.
36. Page No. 11 of the NIT vide clause 1.7 points out
the procedure for opening of tenders. Petitioners as also
Respondents are aware of it. As per its sub-clause 'A', every
tenderer is informed that its envelop No. 1 would be opened on
line to verify its contents. If the documents contained in the
first envelop do not meet requirements of A.P.M.C.,
accordingly, tender opening authority will make a note and
envelop No. 2 of such tenderer would not be considered
further. It is also mentioned that said decision of tender
opening authority is final and binding on the contractors.
Thus, consequence, if the documents do not satisfy the
stipulations in relation thereto, prescribed by Respondent No.
1, are also prescribed in Tender form itself. Envelop No. 2 is to
be opened immediately after opening of envelop No. 1. The
requirement of note 7 appearing at page No. 9 of Tender form
needs to be perused in this background. It mentions that
tendering authority has to first open Technical bid documents
of all contractors and after scrutiny thereof, it has to shortlist
the contractors eligible for financial bidding process. The
shortlisted contractors are to be intimated by e-mail. Thus, on
line process mentioned at page 11 in clause 1.7 and procedure
stipulated vide clause 7 both show that contractors who do not
meet clause 6 are eliminated while the others march further in
the process.
37. In the light of language employed in Tender form,
it is evident that those conditions of eligibility are essential
conditions. The bidder has to show that he has completed at
least one building during financial years 2012-13, 2013-14 and
2014-15. Additional requirement is value of such completed
building cannot be less than Rs.384.00 lac. Similarly, while
furnishing list of machinery available with him, which is to be
deployed exclusively for tendered work, bidder has to also
submit proof of ownership of those vehicles. In order to avoid
possibility of any interpolation in the certificates issued by the
competent authority about completion of building or then in
ownership documents of vehicles, Respondent No. 1 - A.P.M.C.
has inserted the condition that such documents must be
scanned from the original. The certificate to be issued by the
Executive Engineer or equivalent authority has to be in relation
to completion of a work of "building". Hence, such certificate
produced by the tenderer must not be in relation to other work
and cost thereof cannot be less than Rs.384.00 lac. Caution &
precaution taken by the APMC bring forth a full proof scheme &
show that both these conditions are essential eligibility
conditions to verify the creditability of bidder. Respondent No.
1 - A.P.M.C. has cautioned tenderers that it would first verify
their documents, get itself satisfied about it and thereafter only
steps to open envelop No. 2 of those who clear this scrutiny,
would be taken.
38. The Architect of Respondent No. 1 has on
08.02.2016 prepared a comparative chart analyzing the
documents produced by the petitioner, Respondent No. 2,
Respondent No. 3 and Respondent No. 4. Insofar as the
documents submitted by Respondent No. 2 are concerned, he
has put a remark that said respondent has attached a certificate
signed by the Sub-Divisional Engineer, Public Works
Department, Anjangaon Surji. We find that this certificate is in
fact a handing over note of construction of residential school
building at Pandhari, Tahsil - Anjangaon Surji. The Sub-
Divisional Engineer has handed over School building to the
Head Master of that residential school. The administrative
approval for said work is given by the Department of Social
Welfare & Justice on 17.02.2012 and its value is
Rs.4,42,00,212/-. The revised administrative approval date for
excess amount of Rs.2,30,01,000/- as shown in it is
19.10.2010. Thus, this date is prior to the date of
administrative approval mentioned supra. The amount put to
tender is disclosed to be Rs.3,59,19,092/-. The agreement date
is not mentioned but its number is of the year 2012-13 and
date of work order is 15.10.2012. Date of completion is stated
to be 31.12.2013 while drawing is adopted on 10.11.2014.
The total expenditure on this work is shown to be Rs.672.00
lac. There is a completion certificate also in relation to this
work issued by the Sub-Divisional Engineer only. The other
document produced by Respondent No. 2 is about construction
of RCC pavement at Main yard of A.P.M.C., Anjangaon Surji.
The total cost of this work is Rs.1,18,74,723/- and this
certificate is issued by the Architect. There is a space on it
earmarked for signature of Chairman or Secretary of A.P.M.C.,
Anjangaon Surji, but that space is left blank.
39. Said certificate of architect or the other documents
produced by Respondent No. 2 do not show completion of
single/one work of "a building" valued at Rs.384.00 lac in three
financial years as required by the tender documents. We need
not, therefore, dwell more upon these documents. If the
respondent No. 2 was satisfied with the certificate issued by
the sub divisional engineer, it was not necessary for it to file
certificates issued by the architects about his contractual works
with APMC, Anjangaon Surji. If respondent No. 1 APMC was
satisfied with certificate issued by the sub divisional engineer in
favour of respondent No. 2, it was not necessary equally for it
to ascertain correctness or otherwise of the other certificates
issued by the architect. Respondent No. 1- tender inviting
authority does not state that it verified the certificates issued by
the sub divisional engineer & found it proper. In the light
apparent anomalies in the said certificate, we find that
respondent No. 2 did not qualify for the participation in tender
process.
40. This brings us to the documents submitted by the
petitioner. It is not in dispute that the petitioner did not provide
the ownership documents of the vehicles which it offered
exclusively for the work of respondent No. 1 - APMC. It has
supplied the same later on and not in envelop 1. Question
whether the certificate of completion of building signed by the
Chief (Civil) of MOIL used by the petitioner or the alleged
supremacy of said Chief (Civil) over the Executive Engineer,
therefore need not detain us here.
41. The NIT itself envisages the works completed by the
contractor with the various departments or authorities like that
of State Government or other authorities which may qualify as
the semi-government bodies. Work done with private bodies
are not eligible. Word "semi-government bodies" is wide
enough to include the Municipal Corporations, Municipal
Councils, Zilla Parishads, APMCs, University etc. which are
"State" within Art. 12 of the Constitution of India. Even MOIL
qualifies as such. All of these may have an Engineer or an
Architect on their role to undertake or to supervise the
construction work. But his designation may not be always the
same. The terms & conditions of employment also vary due to
difference in financial resources or staff approval. But then the
responsible technical officer with them who has supervised the
job will be competent to issue the certificate in relation thereto.
Such an officer may be their salaried employee or contractual
one, working on job work or piece work. Hence in cases where
the executive engineer is on role, the certificate must be
essentially issued by him. But if such an officer is not there, the
certificate may be issued by officer with any other designation
but with same powers qua the work mentioned in that
certificate. Word "equivalent" here means not an officer with
same salary or same status in society, but an officer exercising
the same powers qua the certified work. Here, the respondent
No. 2 could have produced the certificate of the Executive
Engineer about work of construction of a residential school
building. Certificate issued by the Sub-divisional Engineer to it
is found to be not free from doubt. Respondent No. 2 has not
explained why it could not get the certificate of Executive
Engineer and Respondent No. 1 also has not pointed out
whether it got the anomalies therein mentioned supra,
clarified. Though the tender inviting authority viz. Respondent
No. 1 APMC has filed an affidavit explaining why it became
essential for it to relax the conditions for all the participants
and pointing out that it made due inquiries and got itself
satisfied about the correctness of the certificates issued to
Respondent No. 2 by the Architect, it has not made any such
statement about the handing over note and the certificate
issued by the Sub-divisional Engineer to the respondent No. 2.
42. It is seen that the financial bid was opened on
22.02.2016. Technical bid was opened on 27.01.2016 itself.
Hence list of qualifying bidders needed to be drawn
immediately thereafter. It can be seen that after downloading
the technical bid documents, the same were sent to its architect
by respondent No. 1 APMC. Said architect Shri Chichmalatpure
submitted his evaluation report dated 10.2.2016. As disclosed
by the respondent No. 1 in paragraph 4 of its reply, said
architect separately on 11.02.2016 submitted a letter about
absence of ownership documents with the tender of Petitioner.
Thus till then, no shortlisting of eligible contractors could have
been done. It appears this short listing was not done at all & it
is not pointed out by respondent No. 1. Document at Annex. R-
5 filed by APMC reveals that due to directions of the Chairman
of respondent No. 1 APMC, all the financial bids were decided
to be opened. This document Annex. R-5 is the resolution No.
5 of the Board of Directors of respondent 1 APMC passed on
29.02.2016. It does not refer to the date on or the proceedings
in which the relaxation was ordered by the Chairman. In any
case, the shortlisting was not done immediately, was not &
could not have been notified on 8.02.2016 or before
11.02.2016. It appears from the stance of the respondent No. 1
APMC that the stage of shortlisting itself was dispensed with.
Tender Summary Report print out dated 24.02.2016 obtained
by the respondent No. 2 from E-procurement system of the
Government of Maharashtra shows that technical bid file was
summary details are uploaded on 22.02.2016 at 02.00 PM
while scheduled time of opening of financial bid was declared
to be 02.05 PM i.e. just five minutes thereafter. Thus not a
single bidder was given advance notice of opening of the
financial bids that too by waiving any condition. No decision of
Board Directors of respondent No. 1 APMC relaxing any of the
conditions before the opening of the financial bids is either
pleaded or produced. Office note dated 10.02.2016 does not
reveal any consideration of failure of all bidders to qualify or
them need of relaxation in the interest of APMC. Note does not
contain any material to draw inference of any relaxation or
conscious consideration of need therefor by the Chairman of
the respondent No. 1 APMC. He has on 16 or 18.02.2016 only
ordered all bids received to be opened. Relaxation from any
condition of eligibility is a serious matter and that exercise
must be performed by the competent authority after
understanding the entire background. Application of mind by it
must show the basis therefor & need of such relaxation or
deviation. Respondent No. 1 APMC has failed to place on
record any such data. Architect Shri Chichmalatpure has not
recommended any such relaxation & no office note suggesting
that course of action after due evaluation of the situation exists.
43. Respondent No. 2 does not have any certificate which
shows completion of minimum one work of building costing not
less that Rs. 384.00 Lacs in years 2012-13, 2013-14 & 2014-
2015. Petitioner did not submit in envelop No. 1 the ownership
documents of vehicles which it proposed to use exclusively for
the work of the respondent No. 1 APMC. We have found both
these eligibility conditions essential. Respondent No. 1 has
urged that on 18.2.2016, it evaluated the minor or technical
lacunae in all tenders and its urgent requirement. Therefore, it
decided to overlook these lacunae and to open the financial
bids of all the participants. We have held that there was no
such pressing need to condone the lacunae. We also find
absence of any such self speaking decision reaching process on
record. We have also construed these conditions in NIT and
held that the same are not the ancillary conditions but essential
conditions of eligibility. The conditions as imposed are neither
arbitrary nor irrelevant. The purpose or object behind it is to
secure the best possible bid and safe execution of its work. In
absence of essential application of mind, the entire procedure
followed by the respondent No. 1 - APMC is faulty and bad. If
none of the bidders was complying fully with the prescribed
terms and conditions, the Respondent No. 1 - APMC ought to
have issued notice to all the bidders that it had granted
relaxation and was going to open the financial bids on
22.2.2016. It should have given an e-mail to all the bidders to
remain present on that date so that they cold have objected to
the relaxation given to each other. Not issuing such e-mail to
the all (short listed) contractors also renders the act of
accepting the bid of respondent No. 2 here, unsustainable.
Respondent No. 2 has not urged that it could not have procured
the certificate of the Executive Engineer in relation to single
completed building work or did not point out why it could not
comply with that condition. In any case, it could have requested
respondent No. 1 APMC to give it time to produce the same.
Petitioner also has also not explained why the documents of
ownership were omitted in first envelop. It has not even
pleaded an inadvertent omission. As there was no urgency and
no eligible bidder, public interest demanded that notice inviting
fresh tender with new or relaxed conditions and indicating the
possibility of relaxation if no bidder fulfills the terms, ought to
have been published again. In any case, if APMC knew that the
work was of urgent nature, likelihood of relaxation of
conditions as per law, should have been previously published
for the benefit of all. It is not the case that subject NIT was 2 nd
or 3rd attempt on the part of respondent No. 1 - APMC.
44. We, therefore, find that the entire processing of NIT
by the respondent No. 1 - APMC from the stage of opening of
envelop 1 is vitiated and unsustainable. Neither the tender of
petitioner nor that of respondent No. 2 can be accepted. The
respondent No. 1 - APMC has to publish fresh notice inviting
tenders with stable modifications and also communicating to all
that it may relax few terms & conditions, if the situation so
warrants.
45. We, therefore, quash and set aside the acceptance of
both the tenders of respondent No. 2 by the respondent No. 1
APMC. Similarly, prayer of petitioner to allot the works to is
also rejected. It is open to respondent No. 1 - APMC to issue
fresh NIT on suitable terms and conditions as per law.
46. Both the writ petitions are thus partly allowed by
making the rule absolute accordingly. However, in the facts
and circumstances of the case, there shall be no order as to
costs.
JUDGE JUDGE
******
*GS/dragon.
