M/S Prasad Construction And ... vs The State Of Bihar
2023 Latest Caselaw 5413 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.3913 of 2023
     ======================================================

M/s Prasad Construction and Company, Lila Mohan Niwas Naisarai Biharshariff Nalanda through its Partner Laxman Prasad, aged about 55 years, Male, Son of Madan Mohan Sahu, Resident of House No. 702, Lalpur Tharphakna, Opposite Ajay Singh, Girls Hostel, Ranchi, P.S. Town District Ranchi (Jharkhand).

... ... Petitioner/s Versus

1. The State of Bihar through the Additional Chief Secretary, Home Police Department, Government of Bihar, Patna.

2. The Chairman-Cum-Managing Director, Bihar Police Building Construction Corporation, BSAP-05 Campus, Patna- 800014.

3. The Chief Engineer, Bihar Police Building Construction Corporation, Patna.

4. The Superintendent of Police, Nalanda.

5. The Superintending Engineer, Work Circle 1, Bihar Police Building Construction Corporation, Patna.

6. Realty Advance Structure Enterprises Pvt. Ltd., 2nd Floor, House No. 955, Maurya Path, Khajpura Near Pillar No. 15, Bailey Road, Patna.

7. M/s Dipanshu Promoter and Builder Pvt. Ltd., 2B, Vatika Apartment Line Tank Road, Ranchi.

8. Shree Balaji Engicons Ltd., Jharsuguda Orissa.

9. M/s GC-AK (JV)/M/S Govinda Construction, at Sheo Govinda Construction Pvt. Ltd., 65 Gandhi Nagar, West Boring Canal Road, P.S.- Sri Krishna Puri, Patna.

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

For the Petitioner/s : Mr.Ranjeet Kumar, Advocate Mr. Ayush Kumar, Advocate Mr. Yogesh Kumar, Advocate Mr. Mohit Srivastava, Advocate For the BPBCC : Mr. Prasoon Sinha, Advocate For the State : Mr. Manish Kumar, G.P.-4 Mr. Deepak Kumar, AC to GP-4 For the respondent no. 7 : Mr. Amish Kumar, Advocate Mr. Krishna Chandra Jha, Advocate For the respondent nos. 8 & 9 : Mr. Prabhat Ranjan, Advocate Mr. Chandan Kumar, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA CAV JUDGMENT Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

(Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)

Date : 18-10-2023

I.A. No. 1 of 2023

The present interlocutory application has been filed

for amendment in the instant writ petition by adding one another

prayer, i.e., prayer no. 1 (v) which is as under :

"1.(v) For setting aside the Letter no.1994 dated

06.02.2023 issued with the signature of the Chief

Engineer, Bihar Police Building Construction

Corporation, Headquarter, Patna whereby the

work in question arising out of Tender No.15 SBD

2022-23 dated 10.11.2022 with respect to

construction of 4,000 constable barrack building

and class room at Bihar Police Academy, Rajgir

in the District of Nalanda has been allotted"

2. For the reasons stated in the interlocutory

application, the same is allowed and the averments made therein

will be treated to be a part of the writ petition.

CWJC No.3913 of 2023

3. Learned counsels for the respective parties have

been heard on the previous dates of hearing.

4. Instant writ petition has been filed by the petitioner Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

seeking the following reliefs :-

"i. For setting aside the decision of the Technical Bid Committee dated 24.01.2023 headed by Superintending Engineer, Work Circle 1, Bihar Police Building Construction Corporation, Patna whereby the private respondents No.7, 8 and 9 have been declared qualified in Re-tender No.15/SBD/2022-23 dated 26.10.2022 on receiving of either additional documents which were not submitted with the BID documents or by ignoring submission of relevant documents required in the NIT and SBD.

ii. For setting aside the Financial Bid of the said work and consequential declaration of L1 to the contractor namely M/S GC-AK (JV)/M/S Govinda Construction (Respondent No.9). iii. For that the petitioner further prays that after setting aside the aforementioned two impugned documents, the respondents authority be directed to award the work to the petitioner on the basis of the decision of the Technical Bid Committee Dated 10.01.2023 wherein only the petitioner was declared responsive/qualified.

iv. For any other relief/reliefs for which the petitioner may be deemed entitled too".

5. Briefly stated, the case of the petitioner is that he is Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

a registered Class-I contractor, who participated in NIT

No.26/SBD/2021-22 which was floated under the signature of

Engineer-In-Chief, Bihar Police Building Construction

Corporation, Patna (in short 'BPBCC') for construction of four

thousand constable barrack building and class rooms at Bihar

Police Academy, Rajgir, Nalanda with electrification. In the said

tender, though a number of contractors participated, but except

for one, all were declared ineligible and for this reason, due to

single tenderer remaining in the fray, the said tender was

cancelled. Thereafter, the authorities issued a Re-tender

No.15/SBD/2022-23 dated 26.10.2022 with respect to the

aforementioned works. The date for uploading of the bid

documents was 12.11.2022 till 5:00 P.M. and the date for

opening of technical bid was 14.11.2022 at 04:00 P.M. The NIT

provided that bid was to be submitted through online mode and

not in any other manner. The requirement of submission of bid

documents has been prescribed in Clause 34 of the NIT. Apart

from the petitioner, four other contractors, namely, Realty

Advance Structure Enterprises Pvt. Ltd. (respondent no.6), M/s

Dipanshu Promoter & Builder Pvt. Ltd. (respondent no.7), M/s

Balaji Engicon Ltd. (respondent no.8) and M/s GC-AK (JV)

(respondent no.9) also participated in the tender process. The Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

Technical Bid Committee evaluated the technical bids of all the

five tenderers in its meeting dated 10.01.2023 and declared the

bids of four tenderers to be non-responsive and only the bid of

the petitioner was declared to be responsive.

6. Further case of the petitioner is that the minutes

dated 10.01.2023 of the Technical Evaluation Committee shows

that the bids of other participants were found to be non-

responsive due to non-submission of certain documents.

Thereafter, in a meeting held on 24.01.2023, the Technical Bid

Committee reconsidered the eligibility of three out of four

technically disqualified tenderers and declared the bids of the

respondent nos. 7, 8 and 9 to be responsive and, thus, they were

declared qualified along with the petitioner.

7. Further case of the petitioner is that this decision of

the respondent authorities is arbitrary, illegal and the result of

colourable exercise of power. The petitioner has further

submitted that the bid of the respondent no.7 was earlier

declared non-responsive because of non-submission of Tax

Audit Report in terms of Clause 4.5 (A) (a) of the SBD as well

as in terms of Clause 34 of the NIT. But the Technical Bid

Committee ignored the same and declared its bid to be

responsive as the respondent no.7 has submitted ITR of five Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

years mentioning the Audit Report UDIN Number which is

arbitrary, unfair and colourable exercise of power since the

Clause 4.5 (A) (a) of the SBD and Clause 34 of the NIT make it

mandatory to submit all the soft copies of the Audit Report of

five years and merely mentioning of the Audit Report UDIN

Number would not suffice for eligibility criteria. Similarly, the

bid of the respondent no.9 which was declared non-responsive

because of non-submission of experience certificate of one of

the joint venture partners M/S Arvind Kumar, was later on

declared responsive as the authorities took into account the fresh

certificate, which was not part of the bid document submitted by

the respondent no.9, which is in the teeth of the conditions of

the NIT, SBD and the Bihar Finance rules. Even the Hon'ble

Supreme Court in a number of decisions has held that tender

committee would decide the tender strictly on the basis of

documents submitted along with bid documents and on no other

documents submitted at the subsequent stage.

8. Further case of the petitioner is that the respondent

no.8 was also declared qualified though he was earlier

disqualified for not having minimum experience to work with

respect to brick work, RCC/PCC, stone tiles and pile

foundation. In this regard, the Technical Bid Committee Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

considered that the respondent no.8 had experience of pile

foundation on the basis of document already on record, but this

respondent was declared eligible without considering any other

document with respect to brick work, RCC/PCC, Stone tiles in

gross violation of the conditions of the NIT, SBD and the Bihar

Finance Rules. Thus, the petitioner has submitted that the other

three tenderers who were earlier declared ineligible were later

on declared eligible erroneously, maliciously and in connivance

with the authorities without availability of relevant

documents/certificates/reports and the respondent authorities

opened the financial bid wherein the respondent no.9 was

declared L-1 and the petitioner was declared L-2. Since the

other tenderers have been declared qualified against the express

condition of the NIT, SBD and the Bihar Finance Rules and in

aberration of the decisions of the Hon'ble Supreme Court, the

petitioner, being the only contractor, who was declared eligible

by the Technical Bid Committee in its meeting dated

10.01.2023, deserves to be awarded the contract of Re-tender

No.15/SBD/2022-23.

9. Two sets of counter affidavit have been filed; first

on behalf of the official respondent nos. 2, 3 and 5 and second

on behalf of the respondent no.9.

Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

10. In their counter affidavit, the official respondents

have submitted that there exists three categories of tenders. The

first category is 'Single Bid System' which is for works up-to

Rs.40 lacs. The second category is 'Two Bid System' which is

for works of more than Rs.40 lacs and up-to Rs. 2 crores. The

third category is 'Standard Bid Document (SBD)' which is for

works of more than Rs. 2 crores. The tenders were invited on e-

procurement portal, i.e., www.eproc.bihar.gov.in and since

October, 2022, the 'BPBCC' started using E-Proc2 portal and

the NIT No.15/SBD/2022-23 was the first tender which was

floated through E-Proc2. The E-Proc2 has advanced inbuilt

security features which makes the tender procedure safe and

secure, ensuring high level of transparency and it facilitates

healthy competition.

11. It has been further submitted on behalf of the

official respondents that NIT No.15/SBD/2022-23 is having

estimated cost of Rs.12,551.82 lacs and it comes under the third

category and the said tender was invited on the basis of SBD.

The SBD was first published in the year 2006 and subsequently

revised in the year 2008 by the Road Construction Department

(RCD), Govt. of Bihar and also some guidelines were issued

vide letter no. 6/Niyam-02/2010-8131 (S)w dated 24.07.2012 Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

which is applicable to all Works Departments and State Public

Sector Undertaking. The technical evaluation of bids is done as

per the conditions and procedure mentioned in the SBD and the

technical bids of all five bidders were opened on the stipulated

date, i.e., 14.11.2022. Having downloaded all the documents,

the same were scrutinized and a comparative evaluation chart

was prepared. The Technical Evaluation Committee evaluated

the technical bids of all the five bidders in its meeting dated

10.01.2023. The official respondents admitted that during the

primary evaluation, only the document of the petitioner was

found to be in order, whereas the documents submitted by the

remaining four bidders were not found in order for want of

information as contained in their documents. The Committee

recommended to upload its proceeding on the website as well as

to inform the bidders on their E-mails. The whole exercise was

done under Clause 22.4 of the SBD. A corrigendum was

published by the Technical Bid Evaluation Committee vide

letter no.1889 dated 11.01.2023 mentioning therein that a copy

of the bid evaluation sheet along with the proceedings of the

Technical Bid Evaluation Committee pertaining to NIT

No.15/SBD/2022-23, Gr.No. 01 was uploaded on the website

but due to typing error, the bid evaluation sheet of M/s Gobinda Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

Construction & Arvind Kumar (Joint Venture) at Sl.No.23 was

inadvertently typed as Responsive instead of Non-responsive

and hence, it should be read as Non-responsive. After the

decision of the Technical Bid Evaluation Committee was

communicated to the respondent nos. 6 to 9, only the respondent

nos. 7 to 9 submitted their objections, clarifications and

explanation within the stipulated period before the Chief

Engineer, BPBCC, Patna. Thereafter, the Technical Bid

Evaluation Committee in its second meeting held on 24.01.2023

examined the clarifications/explanations received from the

bidders and after assigning reasons, the Committee accepted the

clarifications/explanations submitted by the three bidders

(respondent nos. 7, 8 & 9) as valid and thus, the bid of the

petitioner and these three respondents were declared responsive

in the technical bid evaluation.

12. The official respondents have further submitted

that the respondent no.9 was declared unsuccessful in the first

technical bid evaluation meeting as one of the partners, namely,

M/s Arvind Kumar was found to have not done the minimum

required work of pile foundation by the Committee. However,

initially the bidder-respondent no.9 had uploaded two

experience certificates with the tender documents. One has been Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

issued under the signature of the Executive Engineer,

Construction Division No.1, Building Construction Department,

Bihar, Patna bearing letter no. 1423 dated 08.10.2022 and

second experience certificate has been issued by letter no.1434

dated 28.09.2022 under the signature of Deputy General

Manager, Bihar State Building Construction Corporation

Limited, Patna. In the experience certificate dated 08.10.2022,

the quantity of pile foundation word done by M/S Govinda

Construction is described as 27775.00 meter which is more than

the minimum quantity of pile work which was required to be

executed in one year, i.e., 2020-21 as prescribed in Clause 4.5A

(c) read with Appendix G to ITB of the SBD. In the experience

certificate dated 28.09.2022, the quantity of pile foundation

work done by M/S Gobinda Construction was shown as

13788.00 meter for the year 2019-20, i.e., the proposed

construction of Multi-storied Residential Quarters (G+7) for

Presiding Officers of this Court at Chhajubagh, Patna.

Thereafter, pursuant to E-mail dated 11.01.2023, the bidder-

respondent no.9 submitted its explanation with regard to re-

evaluation of tender committee dated 11.01.2023 before the

Chief Engineer, BPBCC, Patna along with the certificate issued

by the Deputy General Manager, BSBCCL, Patna, certifying Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

that Arvind Kumar, a Sub-contractor of M/S Gobinda

Construction has completed 6894 meters pile work in

connection with the proposed construction of Multi-storied

Residential Quarters for Presiding Officers of this Court at

Chhajubagh, Patna against Agreement No.09/SBD/2019-20. The

official respondents have further submitted that the certificate in

this regard dated 28.09.2022 as contained in letter no.1434 had

already been uploaded along with the bid documents by the

bidder-respondent no.9 in connection with the present NIT,

which is more than 25% of the minimum pile foundation work

prescribed under Appendix-G to ITB in the financial year 2019-

20 read with the guidelines issued by the Road Construction

Department by letter dated 24.07.2012 in connection with the

conditions for participating as Joint Venture in the tenders based

on Standard Bidding Documents. Clause 5.2 of the aforesaid

guidelines prescribes the following criteria:

"5.2 Each of the remaining partners shall meet not less than 25% of all the qualifying criteria given in Sub-clause 4.2, 4.5A, 4.5B, 4.7 and 4.8 of ITB".

13. The official respondents have further submitted

that the financial bids of the bidders who qualified in the

technical bid in the second meeting held on 24.01.2023, were Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

opened on 25.01.2023. The work was awarded to the lowest

bidder, namely, respondent no.9 as L-1, who has quoted the rate

5.33% below the estimated cost. The respondent no.7 was

declared L-2 who has quoted rate 3.99% below the estimated

cost and the rate quoted by the petitioner was 3.51% below the

estimated cost. Thus, the official respondents have submitted

that everything was done in a transparent and competitive

environment providing the opportunity to all eligible and willing

bidders.

14. The official respondents have further submitted

that the first meeting was held on 10.01.2023 in which bids of

four bidders were declared non-responsive in technical bid

evaluation. The allegations made by the petitioner are not

correct and the action has been taken by the respondent

authorities in accordance with the provisions of the SBD and the

guidelines issued by the Road Construction Department. The

averments made by the petitioner contain distorted and

misleading facts. No fresh certificate of M/S Arvind Kumar was

considered by the Technical Bid Evaluation Committee, rather

letter no.GC-AK/2022-23/121 dated 01.10.2022 was attached

by M/S Gobinda Construction with its clarification which was

an explanation of experience certificate which had already been Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

attached with the technical bid and was uploaded on the

website. Similarly, the respondent no.7 was declared as qualified

after comprehensive bid evaluation and this is reflected from

perusal of the report of the Committee dated 24.01.2023.

15. Thus, the official respondents have submitted that

all the averments and submissions made by the petitioner are

misconceived, imaginary, baseless and devoid of merit and the

same are not sustainable in the eyes of law.

16. In its counter affidavit, the respondent no.9 has

admitted that only the petitioner's bid was declared responsive

in the meeting dated 10.01.2023 and the respondents have

invited objection from bidders through E-mail on 11.01.2023

and the respondent no.9 had explained about experience of pile

foundation work duly signed by the Engineer-in-Charge for

remaining partner which was reconsidered in the meeting. The

respondent no.9 submitted its clarification under Clause 22.4 of

the SBD in the aforesaid tender which allows to get the

clarification about tender documents from the bidders. The

respondent no.9 submitted its explanation with evidence based

on documents already submitted and this fact was reconsidered

in the meeting dated 24.01.2023 of the Tender Committee and

the bid of the respondent no.9 was declared responsive. The Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

respondent no.9 had not submitted extra document but earlier

submitted documents were explained to the Tender Committee,

which examined the bids under the clause of NIT & SBD. After

opening the financial bids of all bidders, the bid of the

respondent no.9 was found lowest and it was awarded the work.

The bid of the petitioner was found to be L-3, so the petitioner is

raising the dispute which is not maintainable. The respondent

no.9 has further submitted that it has already commenced the

work.

17. Reiterating the contention of the petition, learned

counsel for the petitioner submitted that the official respondents

acted against the provisions of NIT/SBD and declared the

technical bids of the respondent nos. 7, 8 and 9 to be responsive.

The learned counsel pointed out that in case of the respondent

no.7, though the requirement was for submission of character

certificate of all the contractors and Tax Audit Reports, but due

to non-furnishing of these documents, the bid of the respondent

no. 7 was earlier declared non-responsive. The explanation of

the Technical Bid Evaluation Committee that the respondent no.

7 produced some letter of the Road Construction Department

wherein it has been mentioned that there was no requirement of

furnishing character certificate of the contractors at the time of Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

submission of bid and the same could be done prior to execution

of agreement, was taken into consideration which was

completely extraneous material and beyond the last date of

submission of bid. Similarly, the submission of Tax Audit

Report has been waived as it has been said that Audit Report

with UDIN No. along with ITR of five years have been

submitted. Obviously, these documents could not substitute the

requirement of Tax Audit Report. Still the bid of the respondent

no.7 was found to be responsive.

18. Similarly, in case of the respondent no.8,

explanation regarding pile foundation work seems to be

satisfactory. But regarding other criteria like brick work,

RCC/PCC, stone tiles, the Technical Bid Evaluation Committee

did not offer any explanation and just stated that the respondent

no. 8 was having sufficient experience in other criteria. The

aforesaid facts have not even explained in the counter affidavit

of the official respondents.

19. The learned counsel for the petitioner further

assailed the action of the authorities in finding the technical bid

of the respondent no.9 to be responsive, but such recording of

finding is based again on extraneous material as is apparent

from Annexure-R-2/J which is letter dated 13.01.2023 which Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

shows the respondent no.9 has submitted the experience of pile

work of Arvind Kumar with covering letter dated 13.01.2023.

That means a subsequent document was taken into

consideration. The learned counsel relied on Clause 22.4 of the

SBD under the heading of 'Bid Opening and Evaluation' to

stress the fact that the opportunity given to the bidders was only

to clarify or modify the technical bid whenever necessary with

respect to any rectifiable defects and after receipt of such

clarifications, the Evaluation Committee was required to finalize

the list of responsive bidders with existing materials as on the

last date of submission of bid. The said clause does not provide

for submission of any document subsequent to submission of

bid and the same could not be taken into consideration.

20. Thus, learned counsel for the petitioner submitted

that the respondent nos. 7, 8 & 9 have been wrongly declared

qualified finding their technical bid to be responsive.

21. The learned counsel appearing on behalf of the

official respondents vehemently contended that there is no merit

in the submission made on behalf of the petitioner. The learned

counsel submitted that the Technical Bid Evaluation Committee

has properly evaluated the documents and did not rely on any

subsequent document as alleged by the petitioner. The learned Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

counsel further submitted that the SBD itself provides for

submission of clarification/modification under Clause 22.4 and

only explanation submitted by the respondent nos. 7, 8 & 9 were

considered by the Technical Bid Evaluation Committee and the

same could not be said to be wrong. The learned counsel further

submitted that so far as the claim of the petitioner about the

Committee considering the subsequent document in case of the

respondent no.9 is concerned, the same was merely an

explanation as the respondent no.9 has already completed the

pile foundation work to the tune of 27775.00 meters which was

much more than the minimum requirement of 21114.75 meters

and when the defect was pointed out that experience of other

partners M/S Arvind Kumar has not been submitted, the

respondent no.9 just furnished the certificate which was prior to

the date of bidding showing that M/S Arvind Kumar worked as

a sub-contractor and was also involved in pile foundation work

for M/S Govinda Construction. The learned counsel further

submitted that as the NIT was governed by letter no.6/Niyam-

02/2010-8131 (S)w dated 24.07.2012, the joint venture partners

were required to furnish their respective experience and for

considering their eligibility, the respective experience of the

joint venture partners were required to be added. In the facts and Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

circumstances, no illegality has been committed by the official

respondents.

22. Supporting the contention of learned counsel for

the official respondents, the leaned counsel for the respondent

no.9 vehemently contended that there is no infirmity in allowing

the technical bid of the respondent no.9 as responsive. The

learned counsel submitted that proper explanation has been

furnished in the proceedings of the Technical Bid Evaluation

Committee dated 24.01.2023 wherein it has been specifically

mentioned that the decision was taken on perusal of the

documents which were submitted with the bid and prior to the

date of bid.

23. The learned counsel for the respondent no. 9

further submitted that the explanation was furnished in terms of

Clause 22.4 and bid evaluation sheet shows one of the partners

on his own was fulfilling the eligibility clause of minimum

requirement towards the pile foundation work. The learned

counsel further submitted that there was no requirement for

furnishing the experience of the other partners in this joint

venture since clause 4.5 (A) (c) of the SBD did not provide that

each of the partners were required to furnish the experience

certificate as it only mandates each bidder should have executed Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

in any one year the minimum quantities of the items of work as

indicated in Appendix to the ITB. The learned counsel further

submitted that the aforesaid letter dated 24.07.2012 is not part

and parcel of the SBD and the Clause 15 of the Invitation for

Bid makes it amply clear that disposal of the tender was to be

done according to the SBD Rules. The learned counsel further

submitted that the petitioner has wrongly submitted in paragraph

21 that the contract has not been awarded to L-1, i.e.,

respondent no.9 as letter of award was issued on 06.02.2023 to

the respondent no.9 and subsequently, the contract was signed

on 07.03.2023 and the work is in full swing. Thus, learned

counsel submitted that there is no merit in the submission of the

petitioner and the instant writ petition be dismissed with cost.

24. Perused the record.

25. The issues arising out from the rival contention

appear to be as follows :

(i) Whether the letter no. 8131 dated 24.07.2012 could be considered as part and parcel of SBD of NIT No.15/SBD/2022-23 dated 26.10.2022?

(ii) Whether the official respondents could have considered the waiver of furnishing character certificates of Directors on the basis of some letter and could have accepted Audit Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

UDIN No. with return of five years in place of Tax Audit Report in respect of disqualification of technical bid of respondent no.7?

(iii) Whether in the case of respondent no.8, the official respondents could have taken U-turn and put aside their objection regarding experience in the field of brick work, RCC/PCC, stone tiles by merely saying that the concerned respondent was having sufficient experience?

(iv) Whether the official respondents could have accepted the explanation of respondent no.9 based on furnishing of certain document which was apparently not filed at the time of submission of bid with regard to work of pile foundation done by the joint venture partner M/S Arvind Kumar?

26. Generally, the Writ Courts are not required to look

into the nitty-gritty of the administrative decisions related to

work contract/tender matter as has been held by the Hon'ble

Supreme Court in the case of N.G. Projects Ltd. v. Vinod

Kumar Jain, reported in (2022) 6 SCC 127.

27. However, the writ jurisdiction can always be

invoked if official action in the matter of tenders is seemingly

arbitrary and violates fair play in action. The Hon'ble Supreme

Court in the case of Reliance Energy Ltd. & another v. Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

Maharashtra State Road Development Corporation Ltd. and

others, reported in (2007) 8 SCC 1 has held in paragraphs 36

and 38 as under :

"36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of "non- discrimination". However, it is not a free-standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to "right to life". It includes "opportunity". In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho v. State of T.N. [(2007) 2 SCC 1] , Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life. "Level playing field" is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g)

confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of "level playing field". We may clarify that this doctrine is, however, subject to public interest. In the world of globalisation, competition is an important factor to be kept in mind. The doctrine of "level playing field" is an important doctrine which is embodied in Article 19(1)(g) of the Constitution.

This is because the said doctrine provides space within which equally placed competitors are allowed Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

to bid so as to subserve the larger public interest. "Globalisation", in essence, is liberalisation of trade. Today India has dismantled licence raj. The economic reforms introduced after 1992 have brought in the concept of "globalisation". Decisions or acts which result in unequal and discriminatory treatment, would violate the doctrine of "level playing field" embodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle of "equality" should not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of "level playing field". According to Lord Goldsmith, commitment to the "rule of law" is the heart of parliamentary democracy. One of the important elements of the "rule of law" is legal certainty. Article 14 applies to government policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test of "reasonableness", then such an act or decision would be unconstitutional.

38. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This "legal certainty" is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of "level playing field".

28. In the instant case, the NIT was issued on Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

26.10.2022. The modalities have been provided in the Standard

Bidding Document (SBD) of the aforesaid NIT. Clauses 4.2,

4.5A, 4.5B, 4.7 and 4.8 of ITB of the SBD provide as under :-

"4.2 All bidders shall also furnish the following information in Section 2.

(i) Evidence of access to or availability of credit facilities (minimum 10% of estimated cost) certified by the bankers.

(ii) Undertaking that bidder would be able to invest a minimum of cost upto 25% of the contract value of work, during implementation of contract.

(iii) Proposals, if any, for sub contracting of elements of work, costing more than 10% of the bid amount. (for all contracts over Rs. 2 crore)

(iv) Power of attorney, if any.

4.5 A To qualify for award of the contract, each bidder in its name should have in the last five years as referred to in Appendix:-

(a) Achieved in any one year a minimum annual financial turnover (in all classes of civil engineering construction works only) volume of construction work of at least the amount equal to the 50% (fifty percent) estimated cost of works for which bid has been invited. The turn over will be indexed at the rate of 8% for a year.

(b) Satisfactorily completed as a prime contractor (or as a nominated subcontractor, where the subcontract involved execution of all main items of work described in the bid document, provided further that all other qualification criteria are satisfied) at least one similar work of value not less than amount indicated in Appendix (usually not less than 50% (Fifty pecent) of estimated value of contract);

(c) Executed in any one year, the minimum quantities of the following items of work as indicated in Appendix.

cement concrete (including RCC and PSC) ......... cum

-

Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

-

-

(usually 80 % of the expected peak rate of construction) * To be deleted for projects costing Rs. 10 crores or more.

*(d) The contractor or his identified sub-

contractor should possess required valid electrical license for executing the building electrification works and should have executed similar electrical works for a minimum amount as indicated in Appendix in any one year.

*(e) The contractor or his identified sub-

contractor should possess required valid license for executing the water supply/sanitary engineering works and should have executed similar water supply/sanitary engineering works for a minimum amount as indicated in Appendix in any one year.

B. Each bidder should further demonstrate:

(a) availability (either owned or leased or by procurement against mobilization advances) of the following key and critical equipment for this work:

Based on the studies, carried out by the Engineer the minimum suggested major equipment to attain the completion of works in accordance with the prescribed construction schedule are shown in the Annexure-1.

Availability of the testing equipment required for establishing field laboratory to perform mandatory tests e.g. those stated in Appendix to ITB.

The bidders should, however, undertake their own studies and furnish with their bid, a detailed construction planning and methodology supported with layout and necessary drawings and calculations (detailed) as stated in clause 4.3(1) above to allow the employer to review their proposals. The numbers, types and capacities of each plant/equipment shall be shown in the proposals along with the cycle time for each operation for the given production capacity to match the requirements."

(b) availability for this work of personnel with adequate experience as required; as per Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

Annexure-II.

(c) liquid assets and/or availability of credit facilities of no less than amount indicated in Appendix (Credit lines/letter of credit/certificates from Banks for meeting the fund requirement etc- usually the equivalent of the estimated cash flow for months in peak construction period.) C. To qualify for a package of contracts made up of this and other contracts for which bids are invited in the IFB, the bidder must demonstrate having experience and resources sufficient to meet the aggregate of the qualifying criteria for the individual contracts.

4.7 Bidders who meet the minimum qualification criteria will be qualified only if their available bid capacity is more than the total bid value. The available bid capacity will be calculated as under:

Assessed Available Bid capacity = (A*N*3-

B) Where A = Maximum value of civil engineering works executed in any one year during the last five years (updated to the price level of the year Indicated in Appendix) taking into account the completed as well as works in progress.

N= Number of years prescribed for completion of the works for which bids are invited.

B= Value (updated to the price level of the year indicated in Appendix) of existing commitments and on-going works to be completed during the next...... years (period of completion of the works for which bids are invited) Note : The statements showing the value of existing commitments and ongoing works as well as the stipulated period of completion remaining for each of the works listed should be countersigned by the Engineer in charge, not below the rank of an Executive Engineer or equivalent.

4.8 Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have:

Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

made misleading or false representations in the forms, statements and attachments submitted in proof of the qualification requirements; and/or have record of poor performance such as abandoning the works. not properly completing the contract, inordinate delays in completion, litigation history, or financial failures etc; and/or participated in the previous bidding for the same work and had quoted unreasonably high bid prices and could not furnish rational Justification to the employer".

29. The bidders were required to furnish the

information as sought under the aforesaid clauses, but there has

been no mentioning about the manner in which a joint venture

was required to furnish the particulars like experience etc. in

terms of the aforesaid clauses. Here comes the aforesaid letter

no.8131 dated 24.07.2012 in play. It is the unequivocal

contention of the official respondents that this letter is part and

parcel of the SBD. Though the SBD does not mention about the

bids to be submitted in terms of aforesaid letter no.8131 dated

24.07.2012, yet it is obvious from the contention of the parties

that they were acting under the presumption that the letter dated

24.07.2012 is part and parcel of the SBD. The respondent no.9

submitted his bid in terms of the letter dated 24.07.2012 and

none of other bidders objected such submission and never

questioned the fact that there was no applicability of aforesaid

letter dated 24.07.2012 in the present NIT. Hence, the Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

contention of the petitioner on this account is devoid of any

merit. Even though the letter dated 24.07.2012 has not been

specifically made part and parcel of the SBD, but for all

practical purposes, it is there and could be considered as part of

the SBD. The petitioner and the respondent nos. 7, 8 and 9 were

bidders in the NIT No.15/SBD/2022-23 and only the respondent

no.9 is a joint venture and other bidders were not required to

comply the directions contained in the letter dated 24.07.2012

for joint ventures. The respondent no.9 acted upon the letter

dated 24.07.2012 and has furnished the details in terms of

paragraph 5 of the aforesaid letter wherever it was required.

Paragraph 5 of the letter dated 24.07.2012 reads as under :-

"5. If bidder is Joint venture, the partners would be limited to three (including lead partner). Joint venture firm shall jointly and severally responsible for completion of the project. Joint venture must fulfil the following minimum qualification requirement.

5.1. The lead partner shall meet not less than 50% (fifty percent) of qualification) criteria given in sub-clause 4.2, 4.5A 4.5B, 4.7 & 4.8 of ITB.

5.2. Each of the remaining partners shall meet not less than 25% (Twenty five percent) of all the qualifying criteria given in sub-clause 4.2, 4.5A, 4.5B, 4.7 & 4.8 of ITB.

5.3. However in case one of the joint ventures partner is proposed to be included primarily to provide financial strength to the joint venture, such joint venture partner shall have to commit to provide liquidity support to the project to the extent of 10% of the value of contract.

Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

5.4. The joint venture must also collectively satisfy the subject of the criteria of clause 4.2, 4.5A, 4.5B, 4.7 and 4.8 of ITB for this purpose the relevant figures for each of the partners shall be 100% or more.

5.5. In the event that the Employer has caused to disqualify under clause 4.8 of ITB and the constitutions stated below all of the Joint Venture partners will be disqualified.

5.6. Joint venture applicants shall provide a certified copy of the Joint venture Agreement in demonstration of the partners undertaking joint and several liabilities for the performance of any contract entered into with the bid.

5.7. The available bid capacity of the JV as required under clause 4.7 of ITB below will be applied for each partner to the extent of his proposed participation in the execution of the work. The total bid capacity available shall be more than estimated contract value."

30. On the conjoint reading of the Clauses 5.1, 5.2 and

5.4 of the aforesaid letter dated 24.07.2012, it is clear that the

lead partner is required to meet not less than 50% of

qualification criteria given in sub-clause 4.2, 4.5A, 4.5B, 4.7

and 4.8 of ITB and at the same time, each of the remaining

partners is required to meet not less than 25% of all the

qualifying criteria given in the aforementioned sub-clauses of

ITB. The joint venture is also required to collectively satisfy the

subject of the criteria of the aforementioned clauses of the ITB

for this purpose the relevant figures for each of the partners

shall be 100% or more.

Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

31. Now, under the pile foundation work, the relevant

experience of the joint venture partner of M/S Gobinda

Construction & Arvind Kumar has been shown to be 27775.00

meters against M/S Gobinda Construction, whereas, it has been

shown as '0 meter' against M/s Arvind Kumar, which means

there was no certificate in terms of paragraph 5.2 of the letter

dated 24.07.2012 at the time of submission of bid on behalf of

M/s Arvind Kumar to satisfy the minimum qualification for pile

foundation. The contention of the learned counsel for the

respondent no.9 that M/S Gobinda Construction on its own was

having more than the requisite qualification in respect of pile

foundation work cannot be appreciated since the said contention

will hold good for paragraph 5.4, but it does not meet the

qualification of paragraph 5.2 of the letter dated 24.07.2012.

The explanation given by the official respondents as well as the

respondent no.9 that qualification certificate of M/S Gobinda

Construction was already on record and the Annexure R2/J

dated 13.01.2023 explaining the shortfall in terms of certificate

dated 01.10.2022 which has been attached with Annexure-R2/J

appears to be window dressing the shortcoming and to meet the

objection. If there were no requirement, then the respondent

no.9 could have merely submitted that it was fulfilling the Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

criteria of minimum requirement of pile foundation work

through one of the joint venture partners and there was no

requirement for furnishing certificate for the other joint venture

partners. Annexure R2/J reads as under :

"GOBINDA CONSTRUCTION- ARVIND KUMAR (JV) Date: 13.01.2023 To, THE CHIEF ENGINEER BIHAR STATE POLICE BUILDING CONSTRUCTION CORP. KAUTILYA NAGAR, PATNA-14.

Sub: -Request to accept our reply cum explanation with regard to the the evaluation of Tender Committee dated 11.01.2023. letter no-1889 dated 12.01.2023.

Sir, Most humble we have to reply with our best explanation with regard to your objection/quarry in our technical bid of Short re-tender NIT no- 15/SBD/2022-23, Group no.01.

1. That we reply your objection, now we are submitting experience of Pile work of Arvind Kumar, which may be accepted.

2. That we are thankful to you that you have given opportunity to explain and submit required papers. You are therefore requested to accept our reply cum explanation and declare our technical bid qualified and open our financial bid.

For GC-AK(JV) For GC-AK (JV) (Мunna Kumar) Authorised Signatory"

32. It is obvious that when the objection was raised,

the respondent no.9 submitted the experience of pile work of

Arvind Kumar and requested for its acceptance. Therefore, the

certificate of experience of M/S Arvind Kumar, one of the joint

venture partners of respondent no.9 is an ex post facto document Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

and the official respondents were not supposed to take into

consideration. The official respondents clearly committed an

error on this account when they accepted this document and

declared the bid of the respondent no.9 to be responsive.

33. Similarly, the respondent no.7 submitting a letter

of Road Construction Department dated 11.04.2022 seeking

waiver from furnishing character certificates of Director of the

company is against the provisions of NIT since the said letter

was never a part of the NIT and on its basis, the official

respondents could not have waived furnishing of character

certificates of the Directors in terms of Clause 32 of the NIT. On

the other hand, non-furnishing of Tax Audit Report with UDIN

No. along with ITR of five years be considered as an alternative

is also not appreciable.

34. Similarly, in the case of respondent no.8, without

explaining how the respondent no.8 was fulfilling the minimum

requirement of qualification regarding brick work, RCC/PCC,

stone tiles, it was declared eligible for technical bid though

earlier on the same documents the technical bid was found to be

non-responsive.

35. Further, there is no explanation on these issues by

the official respondents in their affidavit or in their submission Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

at the time of argument. Merely saying that on the basis of some

document, the respondent no.8 was initially declared

disqualified, would not suffice since no explanation is

forthcoming on this point.

36. It is well settled principle of law that the Writ

Courts must interfere if there appears manifest arbitrariness in

the administrative action. The Hon'ble Apex Court in the case of

Tata Cellular v. Union of India, (1994) 6 SCC 651 has laid

down the basic principles which still hold the field. Para 77 of

the said judgment reads thus :-

"77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1. Whether a decision-making authority exceeded its powers?

2. Committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696] , Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".

37. From the aforesaid discussions, we have no

hesitation in holding that the official respondents acted

arbitrarily and such action must be deprecated in strongest terms

and the same calls for interference by this Court.

38. Accordingly, Re-tender no.15/SBD/2022-23 dated

26.10.2022 (Annexure-2), the decision of the Technical Bid

Committee dated 24.01.2023 (Annexure-4) and the Letter

no.1994 dated 06.02.2023 (Annexure-7) are set aside. The Patna High Court CWJC No.3913 of 2023 dt.18-10-2023

respondent authorities are directed to proceed afresh in

accordance with law.

39. It goes without saying that pending bills of the

respondent no.9, if any, pursuant to re-tender no.15/SBD/2022-

23 and work order dated 06.02.2023 be paid to him by the

concerned authorities, as the respondent no. 9 has taken a plea

in its counter affidavit that the bills amounting to Rs.8.50 crores

for the work done by him have already been submitted for its

payment before the concerned authority.

40. With the aforesaid observations and directions, this

writ petition stands allowed.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) V.K.Pandey/-

AFR/NAFR                AFR
CAV DATE                11.10.2023
Uploading Date          18.10.2023
Transmission Date       N.A.