Madhya Pradesh High Court
Vaishno Associates vs M.P. Rural Road Development ... on 20 September, 2022
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 20th OF SEPTEMBER, 2022
WRIT PETITION No. 15248 of 2021
BETWEEN:-
VAISHNO ASSOCIATES THROUGH ITS PARTNER
OM NARAYAN SINGH, S/O SHRI RAJENDRA SINGH,
AGED ABOUT 36 YEARS, R/O INFRONT OF
VAISHALI ENCLAVE, SHAKTI NAGAR UMARI,
DISTRICT SATNA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ALOK KUMAR GUPTA - ADVOCATE)
AND
1. M.P. RURAL ROAD DEVELOPMENT
AUTHORITY THROUGH CHIEF EXECUTIVE
OFFICER BLCOK-2, 5TH FLOOR, PARYAVAS
BHAWAN, ARERA HILLS, BHOPAL (MADHYA
PRADESH)
2. CHIEF GENERAL MANAGER (T AND e-G) MP
RURAL DEVELOPMENT AUTHORITY, BLOCK-
2, 5TH FLOOR, PARYAVAS BHAWAN, ARERA
HILLS, BHOPAL (MADHYA PRADESH)
3. GENERAL MANAGER, M.P. RURAL
DEVELOPMENT AUTHORITY, PIU, SATNA,
DISTRICT SATNA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAHUL DESHMUKH - ADVOCATE FOR RESPONDENT NO.3)
-----------------------------------------------------------------------------------------------------------------
2
This petition coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
Aggrieved by the order dated 30.07.2021 passed by the respondents
rejecting the bid of the petitioner, the instant writ petition is filed.
2. It is his case that petitioner being a registered partnership firm
incorporated under the Indian Partnership Act and registered contractor with
M.P. PWD. Notice Inviting Tender (NIT) was issued by the respondents on
18.05.2021 for work of construction/up-gradation of rural roads under the
Pradhan Mantri Gram Sadak Yojana (PMGSY) including maintenance of five
years after construction, in various districts of Madhya Pradesh. Petitioner's
fulfilling the qualifying criteria, applied for the same. In terms of Clause 4.6 of
Section 2, "Instructions to Bidders" (ITB), according to which the bidder should
meet the minimum qualification criteria, only if their available bid capacity for
the construction work is equal to or more than the bid value excluding
maintenance duly calculated as per the formula. Petitioner submitted tenders for
six packages, which were opened on 06.07.2021 and on further dates. Four
tenders were opened by the respondents. The petitioner informs the respondents
on 09.07.2021 regarding non inclusion of the bid capacity and the work
undertaken by the petitioner due to mistake and the same was unintentional.
Therefore, requested the respondents to take into account the bid capacity of the
petitioner, which is more than the required bid capacity. Vide e-mail dated
12.07.2021 and 16.07.2021, he was informed that the bid for package reference
no.MP 34715 and MP 34725 were opened and admitted. Thereafter, he has
received a letter on 30.07.2021 rejecting the bid of the petitioner during
technical evaluation for the reason "Non-responsive".
3. It is his case that despite intimation being sent to the respondents
regarding revised bid capacity of the petitioner vide letter dated 09.07.2021, the
same was not taken note of and bid was rejected on technical grounds. It is his
case that the information regarding the bid capacity was already furnished prior
to finalization of the bid. Therefore, the authorities were under an obligation to
consider the same. Therefore, the petition has been filed. By way of an
amendment in the writ petition with further relief to quash the Notice Inviting
Tender dated 11.08.2021 with respect to package MP 44707.
4. Per contra, learned counsel appearing for the respondents by filing reply
has denied all the averments and has contended that in terms of Section 3 of
PMGSY, which talks about qualification, information and clause 1.3.3. of
Section 3 regarding information required to be submitted by the bidder on Bid
Capacity (works for which bids have been submitted and works which are yet to
be completed) as on the date of applying for NIT. Clause 8 of the NIT deals with
the disqualification which says that even if the bidder qualified the criteria but
has mislead or given a false representation in forms, statements, affidavits and
attachments submitted in the proof of the qualification requirements, he is
always subjected to disqualification. The security of bidder will also to be
forfeited. It is submitted that the cogent reading of clause 15, clause 1.3.3. of
Section 3 and 8 makes it clear that the bidder while submitting the bid has to
submit the details of the existing commitment and ongoing works, failing which
or suppressing the same, he is always liable for disqualification. Merely, putting
up information on subsequent dates does not fulfill the requirements of the NIT.
The authorities have refused to accept the bid of the petitioner owing to the
suppression made by him with respect to existing commitment and ongoing
work. He has prayed for dismissal of the writ petition.
5. Heard the learned counsel for the parties and perused the record.
6. Admittedly, in pursuance to the advertisement inviting tender, the
petitioner participated in the same for six packages. It is not disputed that in
terms of contract, he was required to submit the bid capacity and details
regarding ongoing work undertaken by him. The aforesaid information was not
submitted by the petitioner at the time of applying the bid. Clause 1.3.3. is
relevant, which reads as under:-
"Clause 1.3.3. - The bidder has to submit the
information on Bid Capacity (works for which bids
have been submitted and works which are yet to be
completed) as on the date of the bid."
7. The aforesaid information was not submitted by the petitioner at the
relevant time. Subsequently, the same was placed before the authorities. But the
fact remains that it was required to be submitted at the time of submission of the
bid documents. Section 8 deals with disqualification, which reads as under:-
"Section 8 - Even though the bidders meet the
above qualifying criteria, they are subject to be
disqualified if they have made misleading or false
representation in the forms, statements, affidavits
and attachments submitted in proof of the
qualification requirements. In addition to
disqualification Bid Security of bidder will also be
forfeited."
8. From the aforesaid, it is clear that in case of any suppression of material
information the candidate is always liable for disqualification. It is not in dispute
that the information as required in terms of Clause 1.3.3. was not furnished by
the petitioner.
9. Being a matter relating to the contract, the terms and conditions in the
NIT are required to be fulfilled at the time of furnishing of bid documents. The
assessment is to be made by considering these documents, which is being done
by the committee of expert. Such decision taken by the committee of expert
cannot be interfered while exercising jurisdiction under article 226 of the
Constitution of India, which amounts to virtually exercising power of a judicial
review. The aforesaid aspect was considered in the case of Sunflag Iron and
Steel Co. Ltd. vs. State of M.P. (2019) 1 MPLJ 689.
10. The Hon'ble Supreme Court in the case of Master Marine Service (P) Ltd.
Vs. Metcalfe & Hodgkinson (P) Ltd. (2005) 6 SCC 138 has held that while
exercising the power of judicial review in respect of contracts, the Court should
concern itself primarily with the question, as to whether there has been any
infirmity in the decision making process. By way of a judicial review, Court
cannot examine details of the terms of contract, which have been entered into by
the public body of the State.
11. In view of the aforesaid judgments, it is only required to see that whether
the process adopted by the authorities is just and proper while dealing with the
case of the petitioner. It is not disputed that at the time of submitting the bid
documents, necessary information as required in terms of Clause 1.3.3. of the
NIT was not furnished by the petitioner. Hence, no illegality is committed by the
technical experts in rejecting the bid of the petitioner. Furnishing of information
subsequently is of no help to the petitioner. In such circumstances, no relief can
be extended to the petitioner.
12. This writ petition sans merit and is accordingly dismissed. No order as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
Irf.
Digitally signed by MOHD
IRFAN SIDDIQUI
Date: 2022.09.24 11:22:57
+05'30'
