Chattisgarh High Court
M/S. S. Square Cargo Movers ... vs South Eastern Coalfields Limited on 6 September, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 1702 of 2022
• M/s. S. Square Cargo Movers Pvt. Ltd. Having Office At 29/9,
Nehru Nagar (East), Bhilai, District Durg (Chhattisgarh)
Through its Director- Sanskar Agrawal S/o. Shri Rajesh Kumar
Agrawal, aged about 21 years, Having Address At House No.
C-86, VIP Estate, Opposite Ashoka Ratan, Shankar Nagar,
Raipur, District : Raipur, Chhattisgarh
---- Petitioner
Versus
1. South Eastern Coalfields Limited Through its Chairman-cum-
Managing Director, Having Office at SECL Bhawan, Seepat
Road, Bilaspur, District : Bilaspur, Chhattisgarh
2. General Manager (Contract Management Cell) / Tender
Inviting Authority, South Eastern Coalfields Ltd. Having Office
at SECL Bhawan, Seepat Road Bilaspur (Chhattisgarh).
3. Jalaram Transport through its Partner Shri Bharat Khanderia
Having Office at CMD Square, Link Road, Bilaspur (CG).
---- Respondents
For Petitioner : Mr. Shishir Dixit, Advocate
For Respondents No.1 & 2 : Mr. VR Tiwari, Sr. Advocate
assisted by Mr. Vinod Kumar
Deshmukh, Advocate
Order Reserved on 28.6.2022
Order Delivered on 06/09/2022
2
DB: Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. Parth Prateem Sahu, Judge
CAV Order
Per Parth Prateem Sahu, J
1. Rejection of technical bid of petitioner company by respondent
No.2 considering that petitioner company does not fulfil the
'work experience' criteria as prescribed under Clauses 6 & 7.2
of the Notice Inviting Tender (NIT), made the petitioner
company to approach this Court by way of filing this writ
petition, seeking following relief:-
"10.1. That, this Hon'ble Court be pleased to set aside
the Technical Bid Evaluation Summary dated
28.3.2022 issued by Respondent No.4 (Annexure-
P/4) whereby the petitioner has been declared to be
disqualified in Technical Bid for not fulfilling the Work
Experience criteria.
10.2. That, this Hon'ble Court be pleased to quash the
tender proceedings from the stage of considering the
price bids.
10.3. That, this Hon'ble Court be pleased to direct the
respondents to reprocess the tender from the stage of
price bid considering the petitioner to be a qualified
bidder in Technical evaluation having proper work
experience.
10.4. Any other relief which this Hon'ble Court may
deem fit be granted."
2. Facts
relevant for disposal of this writ petition are that
respondent SECL issued NIT bearing No.SECL/ BSP/CMC/
RGH/e-Tender/491 dated 04.12.2021 for "Hiring of suitable
capacity surface miner and allied equipment for mechanical
excavation/cutting of coal/coal measure strata & deployment
of dozer on hiring basis of removal of ridges, left out coal /
coal measure strata while working coal seam in the mine" at
Baroud OCP, Raigarh Area, District Raigarh. Estimated value
of the work is Rs.24,22,45,023.42, inclusive of GST, and
period of completion of work is 730 days. Clause-6 of the NIT
specified the criteria for eligibility of bidders. The bids were
required to be submitted by the bidders in two separate
envelopes by 15.12.2021. First envelope is to contain
'technical bid', whereas second envelope is to contain 'price
bid'. As per Clause (6) of NIT, technical evaluation is to be
made by the system. Pursuant to aforementioned NIT, the
petitioner company and four others submitted their bids. Upon
evaluation of technical bids submitted by tenderers, the
Technical Bid Evaluation Committee sought legal opinion on
the documents relating to work experience submitted by
petitioner company and after due deliberation, arrived at a
conclusion that petitioner did not fulfil eligibility criteria as
provided in Clause 6 (A) & 7(2) of the NIT and accordingly
declared petitioner company to be ineligible to participate in
tender process.
3. Learned counsel for the petitioner would submit that the
Technical Bid Evaluation Summary (Annexure P-4) of the
petitioner company prepared by respondent No.2, is
erroneous. Petitioner submitted all relevant documents in
support of work experience of two similar nature of works
executed by M/s S.S. Cargo Movers Private Limited, Bhilai,
District Durg (CG), a partnership firm, and M/s Godawari Deify
SSCM JV, a joint venture firm, in which two Directors of
petitioner company namely, Shri Shailesh Kumar Jaiswal and
Shri Sukhdev Singh Sidhu were partners and having 60%
share and therefore, 60% of work experience in M/s S.S.
Cargo Movers and M/s Godawari Deify SSCM JV, was to be
taken into consideration, which was in accordance with sub-
clause (viii) under heading 'Technical Evaluation by System'
under Clause-6 of the NIT. First similar nature of work was
issued by the Project Officer, Lingaraj OCP MCL in favour of
M/s S.S. Cargo Movers for the period 01.10.2020 to 30.9.2021
for Rs.19,47,52,327.43. Second work of similar nature was
issued by the Project Officer, Lingaraj OCP MCL in favour of
Godavari Deify SSCM JV for the period 16.10.2020 to
30.9.2021 of the work value of Rs.28,99,93,164.16. As per
requirement of NIT, a bidder is required to have work
experience of 50% of the tender value. The work experience
submitted by petitioner company is more than the criteria
fixed. He contended that as per technical bid evaluation
summary dated 28.3.2022, technical bid of the petitioner
company was rejected on extraneous considerations.
Respondent No.2 had rejected technical bid of petitioner
company considering that experience of partners of petitioner
company is the experience of a partnership firm and not of a
limited company. Said consideration of work experience
submitted by the petitioner in technical bid evaluation
summary is contrary to the law laid down by Hon'ble Supreme
Court in case of New Horizons Limited & another Vs. Union
of India & ors, reported in (1995) 1 SCC 478.
He also contended that rejection of technical bid of
petitioner is contrary to sub-clause (viii) of Clause-6 of the NIT
which clearly provides that experience in proportion to actual
share of bidder as a partner in a Joint Venture firm/
Partnership firm will be taken into consideration against
eligibility. Similar documents of work experience submitted by
petitioner company in other NIT issued by Kusmunda OCP
Area of respondent No.1-SECL have been considered and
technical bid of petitioner was opened. Terms and conditions
of NIT issued by respondent No.2 and one issued by
Kusmunda OCP Area under respondent No.1 were one and
the same and therefore, rejection of technical bid of petitioner
by respondent No.2 in NIT in question and accepted in
another NIT on the basis of similar documents of work
experience, is unjust and arbitrary.
He contended that in sub-clause (viii) of Clause-6 of NIT
there is specific mention that value of experience is to be
assessed in proportion to the actual share of bidder in any
joint venture / partnership firm against eligibility. Respondent
No.2 while preparing technical bid evaluation summary
(Annexure P-4) had not considered the work experience of
two Directors of petitioner company as partners in a joint
venture / partnership firm to the extent of 60% and thereby
erred in evaluating work experience criteria of petitioner
company. Respondent No.2 further erred in not calculating
value of 60% towards work experience by Godawari Deify
SSCM JV, a joint venture firm, in which S.S. Cargo Movers is
the lead firm. Two Directors of the petitioner company were
having 60% share in S.S. Cargo Movers, partnership firm.
4. Learned Senior Counsel for respondent Nos.1 & 2 opposed
the submissions of learned counsel for petitioner and
submitted that respondent No.2 had evaluated technical bid of
petitioner company strictly in accordance with eligibility criteria
prescribed in the NIT. Petitioner cannot be permitted to take
benefit of mistake, if any, committed by the Area Level Tender
Committee of respondent No.1 in any other tender
proceedings. An illegality cannot be allowed to be
perpetuated. Case law relied upon by the petitioner is on
different facts because issue for consideration in that case
was of 'non-consideration of technical/financial worth of
Joint Venture constituents'. The Tender Committee upon
evaluation of technical bid, in order to bring clarity, sought
opinion from Legal Cell and after due deliberation came to the
conclusion that petitioner does not meet the work experience
criteria and therefore, it cannot be said that there is arbitrary
exercise of powers by respondents. Rejection of technical bid
of petitioner is supported by reasons and as such, judicial
review will apply in restricted sense as to whether the reasons
assigned are germane or irrelevant.
5. Learned counsel for the petitioner submitted that the Tender
Inviting Authority while preparing summary i.e. Technical Bid
Evaluation Summary (TBOS) on the deliberation/
recommendation for work wherein the Tender Committee
recommended not to open the bid of petitioner, had taken note
of the judgment in case of New Horizons Ltd. (supra). The
authority considering the legal opinion, held that the petitioner
does not satisfy eligibility criteria based on work experience.
In legal opinion the learned Senior Advocate misinterpreted
the judgment in case of M/s New Horizons Ltd. (supra).
6. We have heard learned counsel for the parties and perused
the record of writ petition.
7. Question involved in present case for consideration is whether
Tender Committee while preparing Technical Bid Evaluation
Summary has rightly considered the work experience of the
petitioner company or not to satisfy Clause-6 of the NIT.
Relevant portion of Clause-6 of the NIT, which deals with
eligibility criteria, is quoted below for ready reference:-
"viii. In case the experience has been earned by
the bidder as an individual or proprietor of a
proprietorship firm or an entity registered as
company under the Companies Act, then 100%
value of the experience will be considered against
eligibility. But if the experience has been earned by
the bidder as a partner in a Joint Venture firm /
Partnership firm then the proportionate value of
experience in proportion to the actual share of
bidder in that Joint Venture firm / Partnership firm
will be considered accordingly.
8. There is no dispute that work experience submitted by
petitioner along with tender document was of similar nature of
work. The Tender Committee while preparing technical bid
evaluation summary of petitioner company has considered as
under:-
"d. Role/Shares of Partners:-
(i) M/s Godawari Natural Resources Limited with
participation share of 25% (Twenty Five
Percent).
(ii) M/s Defy Infrastructure Limited with participation
share of 25% (Twenty Five Percent)
(iii) M/s SS Cargo Movers (A Partnership Firm) with
Participation share of 50% (Fifty Percent).
Note:- In this particular case M/s SS Cargo Movers as a
partnership firm, comprise 5 Nos of parnters vis-a-vis
partnership shares as detailed below;-
a) Shri Shailesh Jaiswal - 30%
b) Shri Sukdev Singh Sidhu - 30%
c) Sidhjai Enterprises Pvt. Ltd. - 10%
d) Smt. Tanya Jaiswal - 15%
e) Smt. Simranjeet Kaur Sidhu - 15%
e. Experience submitted for getting benefit in consideration
of Eligibility Criteria in the name and style of Firm :- 50%
Participation share of Godawari Deify SSCM JV and then
60 Percent participation share of two partners namely Shri
Shailesh Jaiswal and Shri Sukdev Singh Sidhu (as
Directors of S Square Cargo Movers Private Limited)."
9. Value of work experience assessed by the Tender Committee,
as per document uploaded in official website, as
Rs.8,69,97,949.25/-, whereas the petitioner claimed valuation
at Rs.14,49,96,528.08/-. Estimated value of subject NIT is
mentioned as Rs.22,22,45,023.42/- (inclusive of GST). The
Tender Committee did not consider work experience of two
Directors of petitioner company with M/s SS Cargo Movers as
its partners on the ground that M/s SS Cargo Movers, a
partnership firm, was not taken-over by the petitioner
company. There is yet another reason assigned by
respondent for not considering experience of M/s SS Cargo
Movers in the account of petitioner company that it is not in
the name of bidder company M/s S. Square Cargo Movers,
rather it is in the name of 'M/s S.S. Cargo Movers' which is a
different firm.
10. In sub-clause (viii) of Clause-6 of the NIT under the heading
'Technical Evaluation by System' it is clearly mentioned that if
experience is earned by a bidder as partner in Joint Venture
firm or partnership firm, then the proportionate value of
experience in proportion to the actual share of bidder in that
joint venture firm/partnership firm will be considered against
eligibility. Two Directors of petitioner company were partners
in M/s SS Cargo Movers, which executed similar nature of
work, and thereafter these two Directors along with two new
Directors have formed the petitioner company.
11. Case of the petitioner is that two Directors of petitioner
company by name Shri Shailesh Kumar Jaiswal and Shri
Sukdhev Singh Sidhu, were partners in M/s S.S. Cargo
Movers. M/s S.S. Cargo Movers is also a constituent firm of
M/s Godawari Deify SSCM, a joint venture. It is M/s SS Cargo
Movers which was a constituent firm of aforementioned joint
venture. It is not only the aforementioned two Directors of
petitioner company were partners of M/s SS Cargo Movers but
there were three other partners also. In writ petition there is
no pleading with regard to present status of M/s SS Cargo
Movers whether it is still in existence or not and whether
above named two Directors of petitioner company have
separated themselves from the partnership firm M/s SS Cargo
Movers along with equipments and resources to the extent of
their shares with the said firm. It is not the case of the
petitioner that M/s SS Cargo Movers merged with petitioner
company with its experience and credentials.
12. In judgment of New Horizons Pvt. Ltd. (supra) relied upon by
learned counsel for petitioner, the Hon'ble Supreme Court has
observed as to what would be consideration while evaluating
the experience of the bidder, with company, joint venture and
partnership firm, and held thus:-
"23......The terms and conditions of such a
document have to be construed from the
standpoint of a prudent businessman. When a
businessman enters into a contract whereunder
some work is to be performed he seeks to assure
himself about the credentials of the person who is
to be entrusted with the performance of the work.
Such credentials are to be examined from a
commercial point of view which means that if the
contract is to be entered with a company he will
look into the background of the company and the
persons who are in control of the same and their
capacity to execute tile work. He would go not by
the name of the company but by the persons
behind the company. While keeping in view the
past experience he would also take note of the
present state of affairs and the equipment and
resources at the disposal of the company. The
same has to be the approach of the authorities
while considering a tender received in response
to the advertisement issued on 22-4-1993. This
would require that first the terms of the offer must
be examined and if they are found satisfactory
the next step would be to consider the credentials
of the tenderer and his ability to perform the work
to be entrusted. For judging the credentials past
experience will have to be considered along with
the present state of equipment and resources
available with the tenderer. Past experience may
not be of much help if the machinery arid
equipment is outdated. Conversely lack of
experience may be made good by improved
technology arid better equipment....."
13. While considering the challenge to tender proceeding, it is
only to be considered whether the 'decision making process'
suffers from any patent illegality or arbitrariness. The Hon'ble
Supreme Court in the matter of Tata Cellular v. Union of
India reported in (1994) 6 SCC 651 has laid down the grounds
on which the Court can exercise power of judicial review and
the same reads thus:-
"77. The duty of the Court is to confine itself to the
question of legality. Its concern should be;-
• Whether a decision-making authority
exceeded its power?
• Committed an error law;
• committed a breach of the rules of natural
justice.
• reached a decision which no reasonable
tribunal would have reached; or
• abused its power.
Therefore, it is not for the court to determine
whether a particular policy or particular decision
taken in the fulfilment of that policy is fair. It is only
concerned with the manner in which those
decisions have been taken. The extent of the duty
to act fairly will vary from case to case. Shortly put,
the grounds upon which an administrative action is
subject to control by judicial review can be classified
as under:
(i) Illegality: This means the decision maker
must understand correctly the law that
regulates his decision making power and
must give effect to it.
(ii) Irrationality, namely, Wednsebury
unreasonableness.
(iii) Procedural impropriety. The above are only
the broad grounds but it does not rule out
addition of further grounds in course of
time. As a matter of fact, in R. vs. Secretary
of State for the Home Department, ex
Brind, (1991) 1 AC 696, Lord Diplock refers
specifically to one development, namely,the
possible recognition of the principle of
proportionality. In all these cases the test to
be adopted is that the court should,
'consider whether something has gone
wrong of a nature and degree which
requires its intervention".
14. The Tender Committee Authority while deliberating upon the
Technical Bid Evaluation Summary, considered legal opinion
as also other materials for consideration, like there is no
merger of M/s SS Cargo Movers, a partnership firm in which
two of the Directors of petitioner company were partners.
15. In case of M/s New Horizons Pvt. Ltd. (supra) relied upon by
learned counsel for petitioner, the Hon'ble Supreme Court has
observed that while taking into consideration past experience,
present state of affairs, equipments and resources at the
disposal of the company are also to be considered to
evaluate capacity of bidder company to execute the work. It is
also observed by Hon'ble Supreme Court that for judging the
credentials past experience will have to be considered along
with the present state of equipment and resources available
with the tenderer. Past experience may not be of much help if
the machinery and equipment is outdated. From the above
observation of Hon'ble Supreme Court in the case of M/s New
Horizons Pvt. Ltd. (supra), it is clear that not only past
experience is to be added by the employer but credentials
along with present set of equipment and resources at the
disposal of company is also to be added.
16. In case at hand, the petitioner has not made any specific
pleading regarding present state of equipments or resources
available with petitioner company, more so when two of the
Directors of petitioner company were stated to be partners in
M/s SS Cargo Movers. Even the current status of partnership
firm 'M/s SS Cargo Movers' has not been specifically pleaded.
The tender floated by the respondent Company is commercial
in nature. The work under the tender document is for
extraction/ breaking of coal in slices/layers to lump size (100
mm) without resorting to drilling and blasting at Baroud OCM,
Raigarh Area with minimum quantity of 7483 cubic meter per
day. As it is commercial deal with per day specific target for
which respondents are engaging person/firm/company and
therefore, it is for the respondent employer to assess capacity
of tenderer to execute said work and being so, experience
clause under the eligibility criteria of tender document is
having significance. Respondents while considering technical
bid submitted by the petitioner company, particularly eligibility
criteria of work experience, has made deliberations, evaluated
the documents submitted by petitioner company and only
thereafter reached to the conclusion that petitioner does not
fulfil eligibility criteria.
17. In case of Central Coalfields Ltd. vs. SLL-SML (Joint
Venture Consortium) reported in (2016) 8 SCC 622 while
considering the scope of interference in tender matters has
held thus:-
"47....... Ordinarily, the soundness of the
decision taken by the employer ought not to be
questioned but the decision making process can
certainly be subject to judicial review. The
soundness of the decision may be questioned if
it is irrational or malafide or intended to favour
someone or a decision "that no responsible
authority acting reasonably and in accordance
with relevant law could have reached....."
18. If the facts of present case are considered in the light of
aforementioned decisions of Hon'ble Supreme Court, we do
not find any fault in decision making process undertaken by
the respondents. It is for the bidder to satisfy that it fulfils all
the eligibility criteria mentioned in the tender document, which
the petitioner failed to do.
19. In the result, the petition being sans merit is liable to be and is
hereby dismissed. No order as to costs.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
roshan/
