Orissa High Court
M/S. Jay Jagannath Contract Works vs Union Of India & Others on 21 January, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WRIT PETITION (CIVIL) No. 13939 OF 2020
(An application under Articles 226 and 227 of the Constitution of
India.)
M/s. Jay Jagannath Contract Works ...... Petitioner
Versus
Union of India & Others ....... Opposite Parties
Advocate(s) who appeared in this case by video conferencing mode:-
For Petitioner : Mr. Biplab Mohanty, Advocate
For Opposite Parties : Mr. P.K. Parhi,
Assistant Solicitor General
For Opposite Party No.1
Mr. Aurovinda Mohanty
Central Government Counsel
For Opposite Party No.2
Mr. P.K. Jena, Advocate
For Opposite Party Nos.4, 5 & 6
CORAM : THE CHIEF JUSTICE
MR. JUSTICE C.R. DASH
JUDGMENT
21st January, 2021
Dr. S. Muralidhar, CJ.
1. The Petitioner, a partnership firm, whose main object is to carry on
agricultural operation works and execute work orders in connection
therewith for different Government and other organizations, has come
forth with the present petition challenging the action of the ICAR-
National Rice Research Institute, Cuttack (NRRI) (Opposite Party
No.2) by an e-publication notice dated 23rd May, 2020, declaring the
Opposite Party Nos.4, 5 and 6 as L1 bidders pursuant to a tender floated
for the work of Job/Work contract for providing "Various Seasonal
Agricultural/farm operation works".
2. In the bid documents, there were total 109 items of work in two
categories : (A) and (B). Individual price and financial quotations were
invited in the e-tender-cum-bid documents. The parties were expected
to quote individually for all 109 items of work separately. The
Petitioner as well as the Opposite Party Nos.4, 5 and 6 participated in
the tender process and submitted their technical and financial bid for all
categories and items of work.
3. The grounds on which the Petitioner challenges the declaration of
Opposite Party Nos.4, 5 and 6 as L1 bidders is that they did not have
work experience for the last two years for which duly certified copies of
certificates of satisfactory services were to be included with the bid
documents/quotations.
4. Mr. Biplab Mohanty, learned counsel for the Petitioner refers to the
letters individually written by the Opposite Party Nos.4, 5 and 6 to the
Director, ICAR-NRRI, Cuttack admitting that in the last two years none
of them had undertaken any agricultural operation works as the work
has been awarded to another contractor although each of them had
satisfactorily undertaken agricultural operation work for NRRI over a
period of 12 to 14 years earlier. Each of them submitted certificates of
satisfactory completion of the earlier work orders prior to the immediate
preceding two years and requested that they be taken into consideration
while examining the tenders. According to Mr. Mohanty, if none of the
Opposite Party Nos.4, 5 and 6 could produce satisfactory completion of
works in the immediate two years preceding the tender, they should not
have been declared qualified, much less L1 bidders.
5. The second ground on which the challenge is raised is that the sole
authority for taking a decision in this regard was the Director, ICAR-
NRRI who, in terms of clause 19 of the terms and conditions set out in
the bid documents, was to take the final decision which was binding on
the parties. However, in the counter affidavit filed by the Opposite
Party No.2, it is mentioned that the opinion of a 'Farm Advisory
Committee (FAC) has been taken. The FAC in its opinion dated 2nd
June, 2020 had taken the view that farm operations are highly variable
with respect to the time-based requirement of individual scientists and,
therefore, the whole year quantification of volume of work would not
be possible. In the circumstances, the practice of allocation of work to
L1 bidder for item wise work had been followed by the Institute. It is on
the advice of the FAC, which had recommended placing orders for item
of works, that the respective bidders quoted rates, which were approved
by the competent authority. Accordingly work orders were issued on
19th June, 2020 in favour of all participating bidders. Mr. Mohanty
contends that there is no FAC envisaged in the bid documents and
therefore, the procedure followed was illegal.
6. The above submissions have been considered. Column (c) of the
Technical Bid of Schedule-I mandates that "Duly certified copies of the
satisfactory services where the Tenderer is providing the services for
the last two year." In the counter affidavit of Opposite Party No.2 it is
rightly pointed out that there were practical difficulties that had to be
taken into account. Given the scope of the work, it is not possible for
one bidder to execute the work within the agricultural season. It was
further found that the parties had quoted excess price against some of
the items. It was for this reason that the opinion of the FAC was sought.
7. Even as regards the work experience, a report dated 12th May, 2020
was given by the FAC which examined the experience certificates
produced by Opposite Parties No.4 to 6 in light of the balance sheet for
the year 2019 duly certified by a Chartered Accountant. This showed
that they had done the work of NRRI satisfactorily till 2019. They had
previously worked for NRRI satisfactorily from 2008 to 2018 for which
the certificates had been enclosed with the respective tenders. It is in the
above context that the stand taken by the Opposite Party No.2 that the
expression 'last two years' in the tender document should be understood
the work for at least two years, not be confined to the immediate
preceding two years, appears plausible.
8. The Court also notes that while Clause 19 mandates that the
Director's opinion would be final, the tender conditions do not prohibit
his seeking the opinion of the FAC, comprising of experts
knowledgeable in the area. Secondly, when the work order was issued
to the Opposite Party Nos.4 to 6 on 19th June, 2020 another work order
was simultaneously issued to the Petitioner who accepted it. This is not
denied by Mr. Mohanty, learned counsel for the Petitioner.
9. In the considered view of the Court, the stand taken by the Opposite
Party No.2 regarding experience certificate for the last two years not
necessarily being the immediate preceding last two years is an entirely
plausible one to take in the facts and circumstances of the case.
Considering that the Petitioner has also been awarded work, it cannot be
said that any serious prejudice has been caused to it on account of
Opposite Party Nos.4 to 6 being declared L1 bidders for the other works
included in the tender. Lastly, the fact that Opposite Party Nos.4 to 6
did not suppress the fact that they had not worked for NRRI in the
immediately preceding past two years but had carried out the work
satisfactorily in the past 10 to 12 years, speaks well for Opposite Party
Nos.4 to 6. They did not suppress any facts and should not be made to
suffer for no fault.
10. In the circumstances, the Court is not persuaded to interfere in the
matter and grant any relief as prayed for by the Petitioner.
11. The writ petition is accordingly dismissed. However, there shall be
no order as to costs.
12. As the restrictions due to the COVID-19 situation are continuing,
learned counsel for the parties may utilize a soft copy of this
order/judgment available in the High Court's website or print out
thereof at par with certified copy in the manner prescribed, vide Court's
Notice No.4587 dated 25th March, 2020.
............................
S. Muralidhar
Chief Justice
......................
C.R. Dash
Judge
21st January, 2021
//S.K. Jena, P.A.//
