Hans Raj Dhankar vs New Delhi Municipal Council And ...
2009 Latest Caselaw 5245 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Judgment delivered on: 16.12.2009

+      WP(C) 13902/2009


HANS RAJ DHANKAR                                              ...      Petitioner

                                        - Versus -


NEW DELHI MUNICIPAL COUNCIL AND ORS                           ...      Respondents

Advocates who appeared in this case:-

For the Petitioner : Mr Sanjay Jain, Sr Advocate with Mr Arjun Mitra and Ms Prabhsahay Kaur For the Respondent No.1 : Ms Madhu Tewatia

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in Digest?

BADAR DURREZ AHMED, J (ORAL)

1. The petitioner had participated in the tender process pursuant to a

notice inviting tenders dated 27.10.2009. The said notice inviting

tender was issued under the e-procurement scheme. The grievance of

the petitioner is that his technical bid was rejected and he has not been

permitted to participate any further in the tender process inasmuch as

his financial bid was not opened. Initially, the case of the petitioner

was that no reasons were known to the petitioner as to why the

technical bid was rejected, but after hearing the counsel for the

respondent and on examining the file that has been produced by the

learned counsel appearing for the NDMC, it is apparent that the reason

for rejection of the technical bid was that the similar works that had

been indicated by the petitioner in his bid, did not match the eligibility

criteria as stipulated in the notice inviting tender.

2. On this aspect of the matter, the learned counsel for the petitioner

submitted that if there any clarification was required, the NDMC ought

to have sought the clarification from the petitioner, who would have

then clearly indicated the extent of similar works done by the petitioner

which, according to the learned counsel for the petitioner, were in

excess of the eligibility conditions stipulated in the notice inviting

tender.

3. The work involved in the said notice inviting tender was of

"strengthening and resurfacing of roads in NDMC area during 2009-

10" under the sub-head "resurfacing of main roads of colonies in R-III

Division". The estimated cost of the work was Rs 6,54,60,764/-. Apart

from other requirements, clause 2 of the notice inviting tender provided

that there must be definite proof of the bidder owning a Hot Mix Plant.

As per clause 2(d), the bidder should have also satisfactorily completed

during the last seven years ending on the last date of the month

preceding the month in which the tender was called --

"(i) Three similar completed works costing not less than the amount equal to 40% of the estimated cost put to tender.

Or

Two similar completed works costing not less than the amount equal to 60% of the estimated cost put to tender.

Or

One similar completed works costing not less than the amount equal to 80% of the estimated cost put to tender.

(ii) One completed work of any nature (either part of (i) or a separate one) costing not less than the amount equal to 40% of the estimated cost put to tender with Central/ State Government Organization/ Central Autonomous Body/ Central Public Sector undertaking.

(iii) Similar work shall mean works of "S/R of roads using Hot Mix Technology (Dense Bituminous Macadam/ Dense Bituminous Concrete / Stone Matrix Asphalt)".

(iv) The value of executed works shall be brought to currents costing level by enhancing. The actual value of work at simple rate of 7% per annum, calculated from the date of completion to last date of receipt of applications for tenders."

4. The last date and time for downloading tender documents was

13.11.2009 upto 3 pm and the last date and time for submission of the

bids was 13.11.2009 upto 3.30 pm. During that period, only three

parties, namely, the petitioner (H. R. Builders), Satya Prakash &

Brothers Private Limited (respondent No. 3) and Suraj Bhan Goel &

Company had submitted their bids. The date and time of opening of

the technical bid was stipulated as 13.11.2009 upto 4 pm and the date

and time of opening of the financial bid was indicated as 20.11.2009 at

3 pm subject to the rider that the same would be opened after the

technical evaluation of the bid was completed. Clause 7 of the notice

inviting tender indicated that the tenders (technical bids and financial

bids) would be received online through the e-tendering portal

(http://delhi.govtprocurement.com) upto 3.30 pm on 13.11.2009 and

the technical / techno-commercial bids would be opened by the

executive engineer or by his authorized representative in his office on

13.11.2009 at 4 pm. The said clause also provides that after evaluation

of the technical bid/ techno-commercial bids, the financial bid of

successful contractors/ agencies would be opened at a later date

(20.11.2009 at 3 pm).

5. On going through the file, which was produced by the learned

counsel for the NDMC, we find that the technical bids were opened, as

indicated in clause 7, on 13.11.2009 itself at 4 pm. However, the same

were evaluated by the Technical Evaluation Sub-Committee only on

24.11.2009 on account of the fact that one member of the said

Committee was not earlier available. As per the technical evaluation,

H.R Builders (the petitioner herein) and Suraj Bhan Goel & Company

were found to be technically non-compliant. The petitioner was found

to be non-compliant because it did not submit documentation to

indicate similar work as specified in clause 2 of the notice inviting

tender. In this context, the learned counsel for the petitioner drew our

attention to pages 42, 53 and 54 of the paper book to contend that

similar works had been done and that the petitioner met the eligibility

criteria specified in clause 2 of the notice inviting tender. The

document at page 42 of the paper book is a list of work in hand and

work in progress by H. R Builders as on 16.11.2009. The same reads

as under:-

LIST OF WORK IN HAND & WORK IN PROGRESS BY H. R. BUILDERS AS ON 16.11.2009

S. Description of work Contract No. Value of Stipulated Balance as No & Date Contract in period of on 23.10.09 Rs comp.

1    Construction of 4           F. No. (22) 28,22,74,783 Twenty        58,33,000
     Nos. Building Blocks        77/07/DAMB               one
     (5-8) for commission        Engg./449                Months
     agent shops, whole          0602/08
     seller shops, internal
     roads and internal
     electrification at fruit,
     vegetable and food
     grain market IFC,
     Gazipur.
2    Construction of Govt.       DSIIDC/EE      12,89,32,213 Twenty 7,70,84,995
     Sr. Sec. School at          (CD)-XXII/                  One
     Jahangirpuri Site No.       School/    754              Months
     5, Block A, Delhi           dated
                                 19.01.2009
3    Construction of 5552         DSIIDC/EE     10,58,09,475 Ten     5,65,23,790
     houses     (Composite       CD-XVII/                    Months
     work)     with    cost      Award
     effective technologies      Baprola-Infra/
     at Baprola, Delhi           08-09/
                                 345/02.03.09
                                                    Total           13,94,41,785

6. The document at page 53 is a copy of a performance report issued

by the Delhi Agricultural Marketing Board indicating that the petitioner

had completed the work indicated in serial No. 1 in the above table.

The document at page 54 is a letter dated 14.10.2008 issued by the

Delhi Metro Rail Corporation indicating that the petitioner had

executed "miscellaneous works such as dismantling, construction of

building, development, road works, diversion of utilities etc." to the

tune of Rs 5.23 crores. It was the contention of the learned counsel for

the petitioner that the aforesaid three works mentioned in the table

given above and the work indicated in the letter dated 14.10.2008 were

sufficient to indicate that the petitioner had complied with condition

2(d) of the notice inviting tender and that if there was any doubt in the

minds of the NDMC or the Technical Evaluation Sub-Committee,

clarifications could have been sought from the petitioner. The learned

counsel submitted that the same would have been clarified by the

petitioner. He also submitted that merely because there existed some

doubts in the minds of the Technical Evaluation Sub-Committee, the

petitioner‟s technical bid ought not to have been rejected. It was

contended that in similar matters it was the invariable practice of the

NDMC to call for clarifications from the parties.

7. The learned counsel appearing on behalf of the NDMC, first of

all, submitted that in the case of e-tendering, clarifications are not

sought by the NDMC and the tenders should be complete in all respects

on the date of submission itself. She also drew our attention to the last

sentence of clause 7 of the notice inviting tender which reads as under:-

"The tender of the contractors, who do not submit complete tender documents online, through e-Tendering process, the same shall not be considered at all."

She also indicated that insofar as the three bids, which were received,

are concerned, the bid received on behalf of Suraj Bhan Goel &

Company was rejected because the said party did not provide definite

proof of owning a Hot Mix Plant. Insofar as the petitioner is

concerned, all other conditions were satisfied except the condition of

providing proof of carrying out a similar work as per the eligibility

criteria specified in clause 2(d)(i) of notice inviting tender.

8. We have examined the record and we have also heard the counsel

for the parties and we are of the view that this writ petition deserves to

be dismissed. The three similar works, which are said to have been

carried out by the petitioner, are as set out in the table given above.

The first work relates to construction of four buildings for commission

agent shops, whole seller shops, internal roads and internal

electrification at the fruit, vegetable and food grain market IFC,

Gazipur. There is no doubt that the construction of internal roads is

mentioned in the work as also in the certificate issued by the Delhi

Agricultural Marketing Board dated 01.09.2009, which had been placed

at page 53 of the paper book, but no breakup of the amount of road

work involved in the entire project has been given. Therefore, there is

no indication for the NDMC to ascertain the extent of the road work

involved in the said project. Insofar as item Nos. 2 and 3 are

concerned, a plain reading of the same would show that no road work is

involved in the said works. Therefore, the petitioner has failed to

provide documents to indicate that it had completed similar works as

stipulated in condition 2(d)(i) of the notice inviting tender. The learned

counsel for the petitioner had mentioned the document at page 54 to

indicate that the certificate issued by the Delhi Metro Rail Corporation

was also one such work. However, we find that this work is not

mentioned in the said table of three items which was submitted by the

petitioner under the head of „similar works‟. In any event, even this

item of work is a composite one in which road work is only a part. The

extent of the road work involved in the work of Rs 5.23 crores is also

not indicated.

9. The learned counsel for the petitioner had also sought to invoke

clause 2(d)(ii) of the notice inviting tender to submit that even if one

completed work of „any nature‟, costing not less than the amount equal

to 40% of the estimated cost put to tender, was done by the petitioner,

that would be sufficient compliance of the notice inviting tender. We

do not agree with the same because on a plain reading of clause 2 of

notice inviting tender, it is clear that clause 2(d)(i) and 2(d)(ii) are to be

independently complied with and they are not alternatives. Although

the completed work mentioned in 2(d)(ii) may be a part of the works

mentioned in clause 2(d)(i), the requirement of completing „similar‟

works as indicated in clause 2(d)(i), is mandatory and not an

alternative. Therefore, the plea raised by the learned counsel for the

petitioner is rejected.

10. In view of the foregoing discussion, we find that there is no

infirmity in the decision of the Technical Evaluation Sub-Committee of

the NDMC in rejecting the technical bid of the petitioner.

The writ petition stands dismissed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J DECEMBER 16, 2009 SR