Delhi High Court
Ashwani Garg vs Government Of Nct Of Delhi on 30 April, 2019
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th April, 2019
+ W.P.(C) 12240/2018 & CM APPL. 47433-47434/2018
ASHWANI GARG ..... Petitioner
Through: Mr.Sanjay Sharawat, Mr.Divyank
Rana & Mr.Ashok Kumar,
Advocates
versus
GOVERNMENT OF NCT OF DELHI ..... Respondent
Through: Mr.Satyakam, Addl.Std.Cousnel with
Mr.D.A.Dewan, Ex.Eng., PWD
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
%
1. This petition concerns nine Notices Inviting Tender [hereinafter
referred to as "NIT"] dated 06.09.2018, issued by the respondent
[Government of NCT of Delhi] for the construction of additional
classrooms in various schools.
2. The petitioner submitted his bid pursuant to the NIT on 29.09.2018.
The respondent rejected the technical bid of the petitioner on the ground
that it had failed to score minimum marks in the "Time Over Run" criteria
(explained in greater detail herein below). The petitioner represented to the
respondents vide letters dated 02.11.2018 and 05.11.2018. The lack of a
satisfactory response has led to the present proceedings.
3. The tender was open to contractors enlisted in the appropriate
category by the Central Public Works Department [hereinafter referred to as
"CPWD"] as well as those not so listed. The petitioner being undisputedly
not enlisted in the appropriate category, Clause 1.2.1(a) required
establishment of its past performance in the following manner:
"1.2.1 Conditions for other eligible agencies who are not
enlisted under appropriate composite category of CPWD
only,
(a) Three similar works each of value not less than Rs 16.08
crore or two similar works of value not less than
Rs. 24.12 crore or one similar work of value not less
than Rs 32.16 crore in last 7 years ending previous day
of last date of submission of bids.
Similar work shall mean "C/o RCC framed structure
building including water supply, sanitary installation
and internal electrical installations".
The value of executed works shall be brought to current
costing level by enhancing the actual value of work at
simple rate of 7% per annum, calculated from the date
of completion to the last date of submission of bid.
Note: While considering any similar work executed by
applicant Firm under joint venture, the experience of
the applicant Firm in that works shall be restricted to
its share/responsibilities as reflected in the
Memorandum of Understanding (MoU), signed
between the parties, while forming joint venture for
that work, attested copy of which shall be submitted
along with the technical bid."
4. Eligible bidders were thereafter to be evaluated in accordance with
criteria specified in clause 8.0 of Section II of the tender document. Clause
8.1.2 thereof provided as follows:
"8.0 EVALUATION CRITERIA
xxxx xxxx xxxx xxxx
8.1.2 The bidders qualifying the initial criteria as set out in
para 7.1 to 7.9 above will be evaluated for following criteria
by scoring method on the basis of details furnished by them.
(a) Financial strength (Form „A‟ &
„B‟) Maximum 20 Marks
(b) Experience in similar nature of
work during last Seven years
(Form „C‟) Maximum 20 Marks
(c) Performance on works (Form
„E‟)- Time over run Maximum 20 Marks
(d) Performance on works (Form
„E‟)- Quality Maximum 15 Marks
(e) Personnel and Establishment
(Form „F‟ & „G‟) Maximum 10 Marks
(f) Plant & Equipment (Form „H‟) Maximum 15 Marks
Total 100 Marks
(Evaluation of marks shall be done as per Annexure -„A‟ at
Sheet attached hereinafter)
To become eligible for short listing the bidder must secure at
least fifty percent marks in each and sixty percent marks in
aggregate.
The department, however, reserves the right to restrict the list
of such qualified contractors to any number deemed suitable
by it."
5. As stated above, the methodology for evaluation of marks against the
above criteria was contained in Annexure-A, which was part of the tender
documents. This methodology was admittedly derived from the CPWD
Works Manual, being Annexure-I to Appendix-20 thereof. We are
concerned, in the present case, with the evaluation of "Time Over Run"
["TOR"] under Clause 8.1.2(c) above. As far as this is concerned, the
methodology for evaluation of marks contained in Annexure-A was as
follows:
"CRITERIA FOR EVALUATION OF THE
PERFORMANCE OF CONTRACTOR FOR PRE-
ELIGIBILITY
Attributes Evaluation
xxxx xxxx xxxx xxxx
(c) Performance (20
Works (time marks)
over run)
Parameter Calculation Score Maximum
for points marks
(i) Without levy of
compensation 20 15 10 10
(ii) With levy of
Compensation 20 5 0 -5
(iii) Levy of compensation
not decided 20 10 0 0
TOR = AT/ST, where AT = Actual Time; ST = Stipulated Time.
Note: Marks for value in between the stages indicated above is to be
determined by straight line variation basis.
xxxx xxxx xxxx xxxx
[Emphasis supplied]
6. For evaluation of the agency's past performance, the TOR criteria is
incorporated in these provisions so that the timeliness of the agency's
performance can be factored in. In the clause above, the TOR in respect of
a particular project is calculated by dividing the "Actual Time" taken by the
"Stipulated Time". For a particular TOR, the marks awarded to the agency
is then determined by reference to the table above, and is thus also
dependent upon whether or not the contractor was subjected to levy of
compensation.
7. The petitioner's grievance in this writ petition turns on an
interpretation of the above provision of Annexure-A. Mr.Sanjay Sharawat,
learned counsel for the petitioner, contends that the "Stipulated Time (ST)",
which is one of the determinants of the "Time Over Run (TOR)" should not
be reckoned only on the basis of the time which had been originally
provided for performance of the project in question, but should also include
any extensions of time granted for which the contractor was not
responsible. He argues that a contractor ought not to be penalized for
delays in earlier projects for which it was not responsible and for which
extensions were granted by the contracting agencies without levy of any
compensation. In this connection, Mr.Sharawat submits that the CPWD
Works Manual [which is admittedly applicable to construction contracts
issued by the respondent] had been amended prior to the issuance of the
NIT to incorporate this understanding, which was arbitrarily and
unreasonably left out in the present NIT. He referred in this connection to
an Office Memorandum bearing No. DG/MAN/347 dated 13.04.2017, by
which the CPWD had made various modifications in the Works Manual.
The relevant provision of that memorandum is in Sr.No.14 thereof, which
defines TOR as follows:
Sl. Existing Provision Modified Provision
No.
xxxx xxxx xxxx xxxx
14. ANNEXURE-I OF ANNEXURE-I OF APPENDIX-20
APPENDIX-20 CRITERIA FOR EVALUATION OF
THE PERFORMANCE OF
xxxx xxxx CONTRACTORS FOR PRE-
ELIGIBILITY
xxxx xxxx
TOR = AT/ST, where AT=Actual
Time; ST=Stipulated Time in the
AGREEMENT plus (+) Justified
Period of Extension of Time.
xxxx xxxx
Mr.Sharawat submits that, if the petitioner's past performance had been
calculated in accordance with this revised guideline, justified periods of
extension granted to him would have been included in the quantum of
"Stipulated Time", leading to a reduced value of TOR and a consequential
award of higher marks under the TOR criterion.
8. Mr.Sharawat supported this argument by reference to various clauses
in the bid document by which the CPWD Manual was, according to him,
incorporated into the tender documents, along with all amendments and
modifications thereof. The clauses cited by him in this connection are as
follows:
Clause 2 of Invitation to Bid
"2. The intending bidder must read the terms and conditions
of CPWD-6 carefully. He should only submit his bid if he
considers himself eligible and he is in possession of all the
documents required."
Clause 2 of Tender Documents (CPWD-6)
"2. Agreement shall be drawn with the successful bidders on
prescribed Form No. CPWD 7 (or other Standard Form as
mentioned) which is available as a Govt. of India Publication
and also available on website www.cpwd.gov.in. Bidders shall
quote his rates as per various terms and conditions of the said
form which will form part of the agreement."
Clause 22.1.2 of Tender Documents (CPWD-6)
"22. For Composite Bids.
xxxx xxxx xxxx xxxx
22.1.2 The bid document will include following three
components:
Part A:- CPWD-6, CPWD-7 including schedule A to F
for the major component of the work, Standard General
Conditions of Contract for CPWD 2014 as amended/modified
up to the last date of submission of bid, including extension, if
any.
xxxx xxxx xxxx xxxx"
9. Mr.Satyakam, learned Standing Counsel for the respondent, opposed
the writ petition on the ground that the NIT was required to be evaluated on
the basis of the methodology provided in it and not by reference to the 2017
Amendment, which was not incorporated in the subject NIT. According to
him, a revised interpretation of the term "Stipulated Time" would require
re-evaluation, not only of the petitioner's bid, but also of all the bids which
had been submitted pursuant to the subject NIT. Factually, he stated that
the revised definition in fact has been incorporated by the respondent in
subsequent tenders, but submitted that this would not affect the construction
of the tender clauses in the present case. He further submitted that a pre-bid
meeting was held on 14.09.2018, at which the petitioner was also present,
but that he did not raise any query regarding the evaluation criteria nor
object to the definition of "Stipulated Time" contained therein, on the
ground that it did not incorporate the recommendation of 13.04.2017.
10. Having heard learned counsel for the parties, the principal question to
be determined is whether the revised definition of "Stipulated Time",
provided in the Office Memorandum of 13.04.2017, would ipso facto be
applicable to the tender in question. Significantly, although the NIT is
based upon the CPWD Works Manual, it does not automatically
incorporate all amendments thereto. The tender clauses cited by
Mr.Sharawat refer expressly to "the terms and conditions of CPWD-6" and
provide for the agreement to be drawn in terms of Form No.CPWD-7.
Clause 22.1.2 provides for incorporation of amendments made to these two
documents. Upon a perusal of copy of the CPWD Works Manual, 2014,
which was produced by Mr.Satyakam, we find that "CPWD-6" refers to a
format of the Notice Inviting Tender to be published for e-tendering. In
fact, the NIT in the present case followed that format. "CPWD-7" referred
to therein is the format of the agreement to be entered into with the
successful bidder. The methodology for evaluation of the performance
criteria, which is the subject matter of dispute in the present case, is not part
of these documents. As mentioned hereinabove, it is drawn from
Annexure-1 of Appendix-20 of the CPWD Manual. Appendix-20 bears
reference to paragraphs 15.7.1(4) and 16.5 of the Manual, which provide
that the eligibility and bid evaluation criteria would be finalized in
accordance therewith. The tender conditions do not expressly refer to
"Annexure-A" being incorporated along with its amendments and
modifications. In the absence of any reference to Appendix-20 in CPWD-6
or CPWD-7, we do not find any justification to read the amendment of
13.04.2017 into the subject NIT. The interpretation being placed on the
clause by the respondent is not only consistent with its terms, but also
reflects a "plain meaning" understanding, which other bidders may also
have taken. Further, in our view, this is exactly the kind of issue that could
have been raised in the pre-bid meeting. That is an appropriate forum for
resolution of any ambiguities in the tender documents. The petitioner's
failure to do so demonstrates that he submitted his tender without any
reservation, and the present dispute has been raised only after the technical
bids were evaluated, and he was disqualified.
11. In this situation, the respondent cannot be faulted for interpreting the
term "Stipulated Time" in the manner it did. This construction, even if it
excludes justified extensions granted to the contractor, cannot be the subject
matter of interference under Article 226 of the Constitution. In general, it is
the tendering authority which is responsible for interpreting the tender
conditions and the writ Court would interfere only if the construction is
manifestly arbitrary or malafide. This principle has been stated by the
Supreme Court in several judgments, including Afcons Infrastructure Ltd. v.
Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, wherein it was stated
as follows:-
"15. We may add that the owner or the employer of a project,
having authored the tender documents, is the best person to
understand and appreciate its requirements and interpret its
documents. The constitutional courts must defer to this
understanding and appreciation of the tender documents,
unless there is mala fide or perversity in the understanding or
appreciation or in the application of the terms of the tender
conditions. It is possible that the owner or employer of a
project may give an interpretation to the tender documents that
is not acceptable to the constitutional courts but that by itself is
not a reason for interfering with the interpretation given."
12. Any revision of the tender conditions at this stage would entail re-
evaluation of all the bids submitted and consequential delay in construction
of additional classrooms in government schools, which can also not be
justified in public interest.
13. In the facts and circumstances aforesaid, the writ petition is
dismissed, along with the pending applications, but with no order as to
costs.
PRATEEK JALAN, J.
S. RAVINDRA BHAT, J.
APRIL 26, 2019
„hkaur‟
