Patna High Court
Ram Naresh Ray vs The State Of Bihar on 9 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10983 of 2023
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Ram Naresh Ray S/o Sri Maheshwar Ray, R/o - Ward No. - 1, Jathmalpur,
Post - Jathmalpur Tira, P.S. - Kalyanpur, Dist - Samstipur - 847301.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Bihar State Rural work
department, Bishweshraiya Bhavan, Bailey road, Patna.
2. The Engineer in chief, Bihar State Rural work department, Bishweshraiya
Bhavan, Bailey road, Patna.
3. The Chief Engineer-3, RWD, Patna.
4. The Superintending Engineer, RWD, Work Circle, Darbhanga.
5. The Executive Engineer, RWD, work division- Phulparas, Dist - Madhubani.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Prabhat Ranjan, Advocate
Mr. Shashi Bhushan Singh, Advocate
Mr. Chandan Kumar, Advocate
Mr. Ansh Prasad, Advocate
For the Respondent/s : Mr. Archana Meenakshee (GP-6)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 09-01-2024
The petitioner is aggrieved with the cancellation
of his tender by an order dated 17.04.2023 produced as
Annexure-6.
2. The petitioner participated in the tender with
requisite documents on 16.08.2022 and got the bid
acknowledgment on 18.09.2022. The Tender related to the
construction of bridge on 'Panchi Nadi' in the road from
Patna High Court CWJC No.10983 of 2023 dt.09-01-2024
Mathaur Goth to Kodihar Laukhai under the RWD Work
Division-Phulparas. The petitioner is said to have quoted
26.11% below the tender value of Rs.4,28,07,000/-, for which
he deposited EMD of Rs.8,45,000/-. The petitioner's technical
bids along with others were found to be qualified and financial
bids were also opened. The lowest, was of the petitioner among
the eleven bidders, based on which the committee demanded a
rate justification on 01.02.2023 as per Annexure-4. The same is
said to have been recommended by Annexure-5 which was sent
to the Chief Engineer for approval. However, tender committee
held on 17.04.2023 found that there is no justification for
accepting rates quoted by the petitioner and directed re-
tendering of the work.
3. The learned counsel would take us to Clause 27.4
produced along with supplementary counter affidavit of the
respondent to contend that the only exercise possible on
inconsistency being found in the prices quoted is to increase the
performance security to a level sufficient to protect the
employer. There is, hence, no reason for the tender to be
cancelled.
4. We specifically notice clause 27.4 and 27.5, as
pointed out by the learned counsel from the Standard Bidding
Patna High Court CWJC No.10983 of 2023 dt.09-01-2024
Document for Procurement of Civil Works issued by the
Government of Bihar for all Works Department, which is given
below:-
27.4 - If the Bid of the successful Bidder is
seriously unbalanced in relation to the Engineer's
estimate of the cost of work to be performed under the
contract, the Employer may require the Bidder to
produce detailed price analyses for any or all items of
the Bill of Quantities, to demonstrate the internal
consistency of those prices with the construction
methods and schedule proposed. After evaluation of the
price analyses, the Employer may require that the
amount of the performance security set forth in Clause
31 be increased at the expense of the successful Bidder
to a level sufficient to protect the Employer against
financial loss in the event of default of the successful
Bidder under the Contract.
27.5 - A bid, in the opinion of employee which
contains several items in the Bill of Quantities which
are unrealistically priced low and which cannot be
substantiated satisfactorily by the bidder, may be
rejected as non-responsive.
5. True, 27.4 speaks of enhancement of
performance security in the event of inconsistency in the prices
quoted. However, it has to be noted that clause 27.5 specifically
empowers the awarder to reject a tender, which is unrealistically
priced low. We do not find any reason to accept the contention
of the petitioner that reference in clause 27.5 to the 'employee'
and not the 'employer' is relevant. In fact, reading of the entire
document would indicate that the awarder is referred to as
Patna High Court CWJC No.10983 of 2023 dt.09-01-2024
'employer' and awardee is referred to as 'the bidder' and there is
no context in which reference to an 'employee' has to be made.
The word 'employee' is a typographical error and it has to be
read as 'employer'.
6. The committee has in its proceedings enclosed
with Annexure 6 stated the percentage below which the
petitioner has quoted and also observed that the petitioner had
not attached the rate analysis description along with the rate
justification submitted. Rate justification is specifically sought
when there is a lower bid, far lower to the estimated cost,
making it unrealistic and impractical of the work undertaken
being completed for the bid amount. This was what prompted
the Committee to interfere with the tendering process and direct
a re-tender. We find the same to be perfectly in order, insofar the
power being conferred on the Committee as per the provision
referred above.
7. We would, however, not look at whether the
quote is un-realistic since we have no technical expertise. We
rely on Union of India v Kushala Shetty (2011) 12 SCC 69
wherein the Hon'ble Supreme Court has held that this Court
would not interfere in matters where expertise is required. The
subject matter of cancellation is a purely technical matter.
Patna High Court CWJC No.10983 of 2023 dt.09-01-2024
Judicial review as is trite (Federation of Railway Officers
Association v. Union Of India (2003) 4 SCC 289) is a review of
the decision-making process and not an examination or review
of the decision taken.
8. The writ petition, hence, would stand dismissed.
(K. Vinod Chandran, CJ)
Rajiv Roy, J.
(Rajiv Roy, J)
sharun/-
AFR/NAFR
CAV DATE 12.12.2023
Uploading Date 11.01.2024
Transmission Date
