M/S Si- Skt Jv vs Union Of India
2022 Latest Caselaw 4441 Chatt

                                    1

                                                                      NAFR


             HIGH COURT OF CHHATTISGARH, BILASPUR
                         WPC No. 2469 of 2022

M/s SI- SKT JV, Having Office At L-2, Vinoba Nagar, Near Amba Tower,
Bilaspur Chhattisgarh-495001 Through its Authorised Signatory Mr. Uday
Nath Jha, S/o Late Shri Sadanand Jha.

                                                              ---- Petitioner

                                 Versus

1.   Union of India Through General Manager, South East Central
     Railways, Office of General Manager, South East Central Railways,
     Bilaspur Chhattisgarh.

2.   Senior DEN/Co-ord/Raipur, having office at South East Central
     Railways, Raipur Chhattisgarh.

3.   M/s Madhusudan Agrawal JV Having Office at Gwala Para Road,
     Jugsalai, Jamshedpur, Jharkhand- 831006

                                                          ---- Respondents

(Cause-title taken from Case Information System)

For Petitioner : Mr. Abhishek Vinod Deshmukh, Advocate For Respondents No.1&2 : Mr. Ramakant Mishra, Assistant Solicitor General For Respondent No.3 : Mr. Mahendra Dubey, Advocate

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Parth Prateem Sahu, Judge

Judgment on Board

Per Arup Kumar Goswami, Chief Justice

13.07.2022

Heard Mr. Abhishek Vinod Deshmukh, learned counsel for the

petitioner. Also heard Mr. Ramakant Mishra, learned Assistant Solicitor

General for Union of India, appearing for respondent Nos. 1 & 2 and Mr.

Mahendra Dubey, learned counsel, appearing for respondent No. 3.

2. The petitioner is a joint venture of M/s. Shubham Infrastructures and

M/s. Shree Karni Traders.

3. The petitioner had submitted tender in response to a Notice Inviting

Tender (NIT) bearing E tender No. E-R-T-82-21-22 dated for the work of (i)

Construction of RUB at Km. 800/ 21-23 in lieu of manned level crossing

No.403 between Baikunth-Silyari section in Howrah-Mumbai main line. (By

Box Pushing technique) (ii) Construction of RUB at Km. 802/21-23 in lieu of

manned level crossing No.404 between Baikunth-Silyari section in Howrah

Mumbai main line. (By Box Pushing technique) (iii) Construction of RUB at

Kn. 814/14-16 in lieu of manned level crossing No.407 between Silyari-

Mandhar section in Howrah Mumbai main line.(By Box Pushing technique).

4. The bid was submitted by the petitioner on 17.03.2022 and its

techno-commercial bid came to be rejected on 26.05.2022 with the remarks

"not qualifying in technical criteria as mentioned in similar nature of work".

5. When the matter was taken up for consideration on 02.06.2022, it

was submitted by Mr. Mishra that financial bid has already been opened on

26.05.2022 and M/s. Madhusudan Agrawal JV has been declared L-1 and

that further proceedings are going on in respect of issuance of Letter of

Award. By the order dated 02.06.2022, this Court had stayed issuance of

Letter of Award till the next day of hearing, if the same had not been issued

till then. Subsequently, the petitioner had filed an amendment application

to array M/s. Madhusudan Agrawal JV as respondent and it was impleaded

as respondent No.3 by an order of the Court dated 14.06.2022. Another

application for amendment, being I.A. No. 6 of 2022, was allowed by an

order dated 05.07.2022.

6. Mr. Deshmukh submits that the sole ground on which tender of the

petitioner has been rejected was on account of the petitioner having not

uploaded the self-certificate mentioning "Running Railway Line", as

required under Clause 4.1.1 of the tender document. He has further

submitted that the petitioner had uploaded two numbers of work experience

certificates and therefore, assuming that self-certification certificate was not

uploaded, the same is not material, as the same cannot be construed as a

mandatory condition. He further submits that though the petitioner wanted

to upload the self-certification certificate, it could not be uploaded as,

against 'Document Uploading' in respect of Clause 4.1.1, it is mentioned

'Not Allowed'. He has submitted that if the petitioner was required to

upload a self-certification certificate, such document should have been

allowed to be uploaded, but when the respondents had themselves not

allowed uploading of the document by mentioning 'Not Allowed', no fault

can be attributed to the petitioner.

7. Mr. Mishra submits that the petitioner had uploaded 27 files of

documents containing 194 pages along with the offer, but the petitioner had

not uploaded the self-certification certificate. He has also submitted that

the statement of the petitioner that the document uploading is not allowed

is not correct and he contends that one M/s. Jhajharia Nirman Limited had

submitted the work experience certificate without mentioning "Running

Railway Line", but he had uploaded the self-certificate mentioning name of

work/CA No./Work Order No. etc. He has contended that Clause 4.1.1 is

only by way of guidance and clarification and therefore, in Clause 4.1.1 of

the tender document it was mentioned that documents uploading is not

allowed. He submits that relevant provision is Clause 4.1 and not 4.1.1 as

is sought to be contended by Mr. Deshmukh. He submits that the petitioner

has taken a false plea that he was prevented from uploading the self-

certification certificate, which was required to be mandatorily uploaded if

the work experience certificates do not contain the words "Running Railway

Line".

8. Mr. Dubey endorses the submission of Mr. Mishra.

9. We have considered the submissions of the learned counsel for the

parties and have perused the materials on record.

10. Clause 4 is relevant and the same reads as follows :

"4. ELIGIBILITY CONDITIONS

Important : All documents uploaded and remarks / confirmation entered by the bidders against any eligibility condition shall be opened as part of technical bid only

Standard Technical Criteria

S. Description Confirmation Remarks Documents No. Required Allowed Uploading

The tenderer must have successfully completed any of the following during last 07 (seven) years, ending last day of month previous to the one in which tender is invited : Three similar works each costing not less than the amount equal to 30% of advertised value of the tender, or Two similar works each costing not less than the amount equal to 40% of advertised value of the tender, or One similar work each costing not less than the amount equal to 60% of advertised value of the tender. NOTE : Work experience certificate from private individual shall not be considered. However, in addition to work experience Allowed 1 certificates issued by any Govt. No No (Manda-

Organization, work experience tory) certificate issued by Public listed company having average annual turnover of Rs. 500 crore and above in last 3 financial years excluding the current financial year, listed on National Stock Exchange or Bombay Stock Exchange, incorporated/

registered atleast 5 years prior to the date of opening of tender, shall also be considered provided the work experience certificate has been issued by a person authorized by the Public listed company to issue such certificates. In case tenderer submits work experience certificate issued by public listed company, the tenderer shall also submit along with work experience certificate, the relevant copy of work order, bill of quantities, bill wise details of payment received duly certified by Chartered Accountant, TDS certificates for all payments received and copy of final/last bill paid by company in support of above work experience certificate.

Definition of Similar Work :- Construction of "Road Over Bridge on running Railway Line" and/or "Road under Bridge/Limited Height Subway on running Railway line" Note : (i) If the certificate submitted by the tenderer does not contain mention of Running Railway Line", the tenderer 1.1 shall have to certify separately and No No Not upload on IREPS portal along with Allowed offer as follows : Work for which certificate submitted (duly mentioning name of work / CA No./W.O. No. etc) has/have carried out on Running Railway Line." (ii) The cost component of the qualifying bridge work in completion certificate should at least be as per technical eligibility criteria.

Emphasis supplied by Court"

11. Perusal of the affidavit filed by the respondents goes to show that

Indian Railways Electronic Procurement System (IREPS) portal is being

used for online tendering process and that where the document uploading

is required for evaluation and scrutiny of the documents uploaded by the

bidders, there are provisions for uploading the documents indicating

"document uploading allowed mandatory" or "allowed optional". However,

where certain clauses are inserted for guidance, clarification, instruction,

the same are to be read and followed by the intending tenderer and in

respect of such clauses, documents uploading is noted as "not allowed" by

the software itself and accordingly, the same is reflected in the NIT.

12. We are in agreement that Clause 4.1.1 is in the nature of guidance.

Apart from defining what is "similar work", taking note of the fact that even

though in some cases a tenderer might have completed similar work, but

certificates may not have reflected "Running Railway Line", over which

construction of Road Under Bridge (RUB) is to be made, in order not to

cause any prejudice to such tenderers whose work experience certificates

do not contain expression "Running Railway Line", the tenderer was

allowed to certify separately indicating "Work for which certificate submitted

(duly mentioning name of work / CA No./W.O. No. etc) has/have carried out

on Running Railway Line" with offer.

13. It is an admitted position that the experience certificates submitted by

the tenderer do not mention of "Running Railway Line", and therefore, the

necessity for self-certification as mentioned in Note 1 of Clause 4.1.1

arises.

14. In Clause 4.1.1, it is made very clear that the certificate has to be

uploaded along with the offer on IREPS portal. Evidently, the documents

are to be uploaded in terms of Clause 4.1. We are of the considered

opinion that the plea taken by the petitioner that because of the expression

"not allowed" as against Clause 4.1.1, he could not upload self-certification

certificate, cannot be accepted. Having regard to the requirement of self-

certification with regard to "Running Railway Line", in case of work

experience certificates not containing the words "Running Railway Line",

would go to show that the words "Running Railway Line" was of crucial

importance in the context of the tender and therefore, we are of the opinion

that it cannot be construed that such self-certification is only directory in

nature.

15. In view of the above discussion, we find no merit in this application

and, accordingly, the same is dismissed.

16. Interim order stands vacated.

                         Sd/-                                       Sd/-
                (Arup Kumar Goswami)                      (Parth Prateem Sahu)
                     Chief Justice                                Judge


Chandra