M/S Umang Infrastructure ... vs The State Of Bihar
2023 Latest Caselaw 341 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.13790 of 2022
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M/s Umang Infrastructure Awadhesh Rai (JV) through Anil Kumar Singh, proprietor of leading partner, Umang Infrastructure, having its office and residence at 48/371, Teachers Colony, Bhatta Bazar, P.S.- Purnia, District- Purnia.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Urban Development and Housing, Govt. of Bihar, Patna.

2. The Principal Secretary, Urban Development and Housing, Govt. of Bihar, Patna.

3. The Managing Director, Bihar Urban Infrastructure Development Corporation Ltd. (Buidco)-Cum-Chairman of Tender Committee.

4. The Chief Engineer, Design, Planning and Monitoring, Buidco, Patna-cum-

Chairman of Technical Bid Evaluation Committee.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Satyam Shivam Sundaram, Adv. For the BUIDCO : Mr. Lalit Kishore, Sr. Adv.

Mr. Ravindra Kumar Priyadarshi, Adv. For the State : Mr. Subhash Pd. Singh (GA3) ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 24-01-2023

Heard Mr. Satyam Shivam Sundaram, learned

counsel for the petitioner and Mr. Lalit Kishore, Senior

Advocate assisted by Mr. Ravindra Kumar Priyadarshi for

the BUIDCO.

Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

The petitioner has challenged the decision taken

by the Tender Committee of Bihar Urban Infrastructure

Development Corporation Limited (hereinafter called

"BUIDCO") whereby the tender process, which was initiated

for the work of Design and Construction of Drinking Water

Supply Scheme for Aurangabad Nagar Parishad under

"AMRUT" and State Plan Scheme (Phase-II), was shelved

on the ground that none of the bidders, including the

petitioner, were found to be technically responsive.

A decision thereafter was taken for issuance of re-

tender on the revised rate.

The petitioner is a Joint Venture, the proprietor of

whom is the petitioner. The Notice Inviting Tender (in short

"NIT") for Drinking Water Supply Scheme for Aurangabad

Nagar Parishad was issued on 31.12.2021 by BUIDCO.

Be it noted that in the earlier tender process with

respect to the same scheme, there were no technically

responsive bidder, compelling the BUIDCO to issue a re-

tender. The petitioner had applied in the earlier tender Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

process also. In the instant tender, he has been found to be

technically unresponsive on four counts.

However, before that, Mr. Sundram has pointed

out that on 11.02.2022, when the technical bid was opened

for the first time, the petitioner and two others were found

to be technically responsive. This information is based on

the recommendation made by the Technical Bid Evaluation

Committee on 04.04.2022. However, the Tender

Committee, before which the report of the Technical Bid

Evaluation Committee was placed on 05.08.2022, did not

find the petitioner's bid to be responsive to some of the

conditions under the S.B.D.

The Tender Committee therefore took a decision

holding that all the bidders, including the petitioner, were

technically non-responsive. Since the Technical Evaluation

Tender Committee had earlier, as referred above, found

some of the bidders to be responsive, a re-evaluation was

made by it on 30.07.2022 which took note of the

evaluation of the Tender Committee in the first instance Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

and reiterated that none of the bidders were responsive,

which included the petitioner's bid as well.

A question has been raised as to the necessity of

re-evaluation by the Technical Bid Evaluation Committee.

Was it for the purposes of giving technical justification for

issuance of a re-tender or was it, in reality, an assessment

of the responsive nature of the bids offered.

Be that as it may, the Technical Bid Evaluation

Committee, according to the NIT requirement, asked for

objections on such issues on which the petitioner and others

were held to be non-responsive, which was submitted by

the petitioner but the decision of the Tender Committee

was affirmed.

The counsel for the petitioner asserts that the

explanations offered by the petitioner were good enough for

the Tender Evaluation Committee to reconsider their

decision regarding the petitioner being technically

unresponsive. Four of the conditions of the SBD which the

Technical Evaluation Committee did not find to have been Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

satisfied from the bid documents furnished by the petitioner

were that (i) the profit and loss statement for the last five

years, audited by a Chartered Accountant, had not been

given; (ii) the bid document was not signed on all pages

and signature were put only on the first and the last pages.

(iii) The bid document was not certified by a 1 st Class

Executive Magistrate but by a Notary Public. And lastly (iv)

that the experience certificate of high-yield tubewell was

not in accordance with the requirement under the NIT.

With respect to the documents not being signed on

each of the pages of the bid, the justification offered by the

petitioner was that the bid was submitted online under e-

Proc process where a license is generated for individual

bidders. The purpose for signing each page of the document

is to avoid any tampering. With e-Proc token, it is given

that the online bid is by the concerned bidder only. The

petitioner has come up with another reply that according to

the NIT, the signature on all pages of the bid was required Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

only under the circumstance if there was any correction

made in any one of the papers.

With respect to the second objection that the

documents furnished by the petitioner were are not certified

by Class-I Executive Magistrate, it was urged that such was

not the requirement in the NIT.

However, Mr. Lalit Kishore appearing for BUIDCO

has pointed out from one of the S.B.D. clauses that with

respect to this requirement, the decision of the Road

Construction Department would made applicable which

requires verification by Class-I Executive Magistrate.

Mr. Sundram however, in response, submitted that

this was not the major issue and it was capable of being

waived as it did not form part of the core eligibility

condition.

The profit and loss statement audited by the

Chartered Accountant was filed for four years, whereas for

the fifth year, since the financial year had not ended,

therefore no specific statement of profit and loss could be Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

deduced. However, the documents furnished by the

petitioner clearly indicates the financial strength of the

petitioner till the last financial year.

With respect to the basic eligibility criterion of a

bidder having experience in high-yield tubewell, a certificate

was furnished which was issued by another Government

department that the petitioner has an experience of

conducting ten such works of high-yield tubewell. The

objection in this regard of the Technical Evaluation

Committee was that the experience certificate furnished by

the petitioner was with respect to deep tubewell and not

high-yield tubewell which are essentially different.

The aforenoted assessment of the technical

committee has been questioned by Mr. Sundram on various

grounds; one being that for a deep tubewell, the

specifications are the same as the requirements in a high-

yield tubewell and a deep tubewell, in all circumstances, is a

high yield tubewell.

Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

Another ground in defence of the petitioner's bid

being held technically responsive was that when such

certificate was being evaluated by the Technical Evaluation

Committee, a clarification was sought from the Department

which had issued the certificate, which was replied affirming

the requisite experience of the petitioner/bidder.

Mr. Lalit Kishore, however, submits that the

evaluation was made on face of it and not by probing deep

into the issues.

It may however be stated here that when

clarification was sought from the concerned Department

with respect to correctness of the certificate of experience,

a specific poser was put whether such certificate was with

respect to high-yield tubewell, to which the response of the

concerned Department was in the positive.

At this stage, Mr. Lalit Kishore, learned Senior

Advocate raised objection that such decision of the

Technical Evaluation Committee and of the Tender

Committee need not be evaluated by this Court in such a Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

manner so as to question the wisdom of the Committee.

The Committee comprises technical experts whose opinion

cannot be substituted by a Court of law. In support of the

aforesaid argument, Mr. Kishore pointed out a few of the

judgments of Supreme Court and of this Court which

precluded a Court of law to substitute its opinion with

respect to a bid being technically responsive, in derogation

of the opinion of the Technical Committee.

There is no dispute about the position of law

postulated by Sri Kishore. Nonetheless, two facts have

weighed with us to hold that the Technical Evaluation

Committee had, all this while, been nit-picking and was

handling the matter in a captious manner without any

justification. However, we stop short at this for the reason

that the element of malafides could not be proved by the

petitioner. We say so because all the other five bidders

were also held to be technically unresponsive.

The other ground which has weighed with us to

doubt the correctness of the Technical Evaluation Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

Committee, for the present, is that when on such minor

issue, the entire tender process was shelved and a re-

tender for the third and fourth time had been issued, the

Department ought to have looked at the fiscal part of it as

well. Well then, the department knows its financial strength

and we have not been called upon to decide that.

We have straightaway, on these grounds, not

proceeded to set aside the decision of the Tender

Committee holding all the bids to be unresponsive, including

that of the petitioner and direct for a re-tender for the sole

reason that but for the petitioner, all other technically

unresponsive bidders have not challenged such decision,

leaving the petitioner only as the sole tenderer in the fray.

Mr. Lalit Kishore has rightly pointed out that

assuming every defence of the petitioner regarding its bid

being responsive is accepted, only the petitioner remains in

the field for the Government to take a decision.

True it is, it has been argued on behalf of

BUIDCO, on the response of the petitioner that in the past, Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

on many occasions, BUIDCO itself has accepted the tender

of the sole tenderer, which cannot be a bar in a second,

third or fourth re-tender, the decision has to be of the

Government. The Department cannot be forced to accept a

single tenderer, though if such a decision is taken, that may

not be faulted under the circumstances.

Precisely, for this reason, we are not setting aside

the decision of the Tender Evaluation Committee to hold

everyone non-responsive and order for a re-tender but,

under the circumstances, we direct that the petitioner be

also allowed to participate in the re-tender for which he

shall be given clear fourteen days (two weeks) to file his

tender papers, online and offline, as is the requirement

under the re-tender and his bid also shall be evaluated

impartially along with the other bidders and a final decision

shall be taken.

We are conscious of the fact that the work for

which the re-tender is to be issued is for providing potable

water, which is a very important work of the State falling Patna High Court CWJC No.13790 of 2022 dt.24-01-2023

under its sovereign functions. There ought not to be any

delay in executing such work for it impinges upon the basic

amenities of citizens of the State.

We, therefore, give a time-frame for the

Technical Evaluation Committee to consider the bid of the

petitioner and others within a reasonable period of time

preferably within a period of ninety days from the date of

submission of all the bids of the prospective bidders.

Mr. Lalit Kishore for the BUIDCO, with initial

hesitation, agreed for the same.

The writ petition is partially allowed and disposed

in accordance with what has been said above.

(Ashutosh Kumar, J)

(Satyavrat Verma, J) Rishi2/rishi-

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Uploading Date          30.01.2023
Transmission Date