Patna High Court
M/S Shiv Shakti Construction vs The State Of Bihar on 31 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1596 of 2024
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M/s Shiv Shakti Construction (a duly registered Class-IA Contractor and
company under the Company Act), having registered office at A-142, OMEX
NRI City, Near Pari Chowk, Greater Noida, at P.O. and P.S.- Greater Noida,
District- Gautam Budha Nagar (U.P.) PIN- 201308, through its authorized
signatory namely Yugesh Kumar, male, aged about 34 years, Son of Budhu
Yadav Resident of Road No. 9, Shashtri Nagar, P.S.- Rampur, District- Gaya.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Water Resources
Department, Govt. of Bihar, Sinchai Bhawan, Patna, Bihar.
2. The Principal Secretary, Water Resources Department, Govt. of Bihar
Sinchai Bhawan, Patna, Bihar.
3. The Engineer-in-Chief, Water Resources Department, Govt. of Bihar,
Sinchai Bhawan, Patna, Bihar.
4. The Chief Engineer, Water Resources Department, Govt. of Bihar, Sinchai
Bhawan, Patna, Bihar.
5. The Executive Engineer, Sone High Level Canal Division, Aurangabad P.O.
and P.S. and District- Aurangabad, Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Parijat Saurav, Advocate
For the Respondent/s : Mr. Anjani Kumar, AAG-4
Mr. Shailendra Kumar, AC to AAG-4
Mr. Alok Kumar Rahi, AC to AAG-4
Mr. Utkarsh Bhushan, AC to AAG-4
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 31-01-2024
The petitioner, who submitted a tender in
pursuance of Notice Inviting Tender No. 01SBD/2023-24 is
aggrieved with the disqualification of his tender in the
Technical Bid Evaluation carried out by the Tender Technical
Patna High Court CWJC No.1596 of 2024 dt.31-01-2024
Committee.
2. The learned counsel for the petitioner pointed
out from the NIT that the bidders were required to give the
details of the personnel with adequate experience as per
Annexure-II. The petitioner had submitted the experience of
the persons as per Annexure-II, in the format as required in
the NIT, which format is pointed out from Annexure-P6.
Therein all the Site Engineers in the employment of the
petitioner available for the work were shown to have
experience far beyond that required in Annexure-II. The
learned counsel would also refer to Annexure-P-3, which was
the disqualification in the technical evaluation communicated
to him. The e-mail speaks of the proceedings of the Technical
Tender Committee attached to it, which was never attached.
The petitioner sought a clarification as per Annexure-P-4 and
in response to which Annexure-P5 was received. Only from
Annexure-P-5, the petitioner was informed that the certificate
establishing the requirement of 3 years' experience in
irrigation work for the post of Site Engineer was not attached.
The petitioner specifically refers to Annexure-P-7 series of
certificates which more than establishes the experience of the
personnel in irrigation works.
Patna High Court CWJC No.1596 of 2024 dt.31-01-2024
3. The learned AAG-4, on the other hand, argues
that there was no substantiation of specification as required in
Annexure-P-II. The document does not establish the
experience of the Site Engineer in irrigation works.
4. Annexure-P-1 is the NIT and clause 4.5B(b)
requires the availability of personnel with adequate
experience as specified in Annexure-II. Annexure-II specifies
the experience of key personnel to be deployed on contract
work from which the Site Engineer (Civil) has to have the
following:- B.E. Civil + 07 years' experience (3 years'
experience of irrigation works) or retired A.E. Hence, any
Site Engineer should have an overall experience of 07 years
and an experience of irrigation works of 3 years. Annexure-P-
6 is the affidavit submitted by the petitioner wherein 4 site
engineers have been shown, all with B. Tech (Civil)
qualification. Their year of experience, generally and
particularly in the 'proposed position', as is available from the
format, are shown identically ranging from 13 years to 29
years.
5. The certificates of the respective Officers are
also produced along with Annexure-P-6 series. The affidavit
of the concerned Officers are identical in all the four cases
Patna High Court CWJC No.1596 of 2024 dt.31-01-2024
and it reads as follows:-
1. That I am a Civil Engineer, having Degree in
Civil Engineering.
2. That I am engaged full time with M/s Shiv
Shakti Constructions having its registered office at
A142, Omaxe NRI City, Near Pari Chowk, District
Gautam Buddh Nagar, Greater Noida (UP) 201308 to
look after the Civil Contracts site of the firm.
3. That I am currently not engaged with any other firm.
We cannot but say that this does not declare any experience in
the specified irrigation work for 3 years, which is the
'proposed position', if the tender is awarded to the petitioner.
6. Now, we come to Annexure-P-7 series which
are the experience certificate relied on by the petitioner. The
experience certificate indicates the petitioner herein, the firm
which bid under the NIT, having experience in irrigation
works between 2015-16 to 2021-22. There is nothing in the
said certificates to show the personnel for the 'proposed
position', having been deployed by the petitioner in such
irrigation works. It is also pertinent that there is not even a
declaration that the petitioner is engaged in only irrigation
works or the exact period in which the personnel 'proposed'
were employed with the petitioner. The declarations in the
affidavit as extracted by us hereinabove, only indicates that
currently the said personnel are working with the petitioner
Patna High Court CWJC No.1596 of 2024 dt.31-01-2024
firm and they are not engaged in any other firm, which is
superfluous insofar as the specific declaration required as per
Annexure-P-II.
7. The learned counsel for the petitioner has also
produced a translated copy of Annexure-P9 and pointed out
that the guidelines issued by the Water Resource Department
read with clause 22.4 (ii) enables the respondent authority to
call for clarifications and the bidder to rectify any mistakes.
The guidelines in clause 22.4 (ii) reads as under: -
(ii) After receipt of confirmation of the bid
security, the bidder will be asked in writing (usually
within 10 days of opening of the Technical Bid) to
clarify or modify his technical bid, if necessary, with
respect to any rectifiable defects.
8. We have to notice that the clarification and the
modification of the technical bid as spoken of in the NIT is only
with respect to rectifiable defects. Read with the guidelines, it has
to be emphasized that the opportunity given to the tenderers for
clarification and modification is regarding the eligibility criteria,
which can be based only on those documents or records before the
date of receipt of the tender bid. The petitioner does not plead of
any document before the tender bid which clearly specify the
experience in irrigation works of the four proposed Site Engineers.
Patna High Court CWJC No.1596 of 2024 dt.31-01-2024
9. We find absolutely no reason to interfere with
the tender process on this ground also and dismiss the writ
petition in limine.
(K. Vinod Chandran, CJ)
( Rajiv Roy, J)
sharun/-
AFR/NAFR
CAV DATE
Uploading Date 06.02.2024
Transmission Date
