WPMS/699/2020
2021 Latest Caselaw 4841 UK

 IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
     ON THE 1ST DAY OF DECEMBER, 2021
                          BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


     WRIT PETITION (M/S) No. 699 of 2020

BETWEEN:

M/s Dalip Singh Adhikari.                    .....Petitioner
     (By Mr. Shobhit Saharia, Advocate)

AND:
State of Uttarakhand & others.              ...Respondents

     (By Mr. M.S. Bisht, Brief Holder for the State of
     Uttarakhand/respondent no. 1; Mr. Shailendra Singh
     Chauhan, Advocate for respondent nos. 2 & 3; Mr.
     Sanjay Bhatt, Advocate for respondent no. 5 and
     Mr.    Hari     Om    Bhakuni,      Advocate     for    the
     interveners/applicants)


                       JUDGMENT

Chief Engineer, Uttarakhand Rural Road Agency, Dehradun issued a Notice Inviting Tender on 28.11.2019 for different road construction works, including the work of up-gradation of Binatoli-Kunjhali to Majkot Motor Road. As many as six bids were received pursuant to the said notice, including that of the petitioner.

2. A Procurement Evaluation Committee evaluated the bids and found four, out of six bids, to be non-responsive. Petitioner's bid was also found to be non-responsive. The bid accepting authority, namely,

Chief Engineer, PMGSY, Kumaon Zone, Almora accepted recommendation of the said committee and result of the bid evaluation was uploaded on the website. The bid evaluation report of Procurement Evaluation Committee is on record as Annexure-1 to the writ petition. The reason for rejecting petitioner's bid has been indicated in the said report, which is extracted below:-

"Bart chart submitted but not correct in which G-1 is additional added."

3. Petitioner filed a complaint against rejection of his bid, in which, he contended that his bid has been wrongly rejected; in his bar chart, at item no. 5 WBM work has been mentioned, which includes GSB, G-1, G- 2, G-3, however, his bid has been rejected only on the ground that G-1 is mentioned in the bar chart, which is not justified. Petitioner further contended in his complaint that a bid could have been rejected for not mentioning some item but under no circumstance, a bid could have been rejected for mentioning all items, which are used in construction of road. He further contended that while constructing road over marshy/muddy land, G-1 is used, therefore, all the items of GSB were indicated in the bar chart, thus, decision to reject petitioner's technical bid needs to be re-considered.

4. The complaint made by the petitioner was rejected by the Tender Technical Committee on the ground that as per BOQ of the bid, only such works, which are required to be done are to be mentioned in the construction programme/bar chart, while petitioner has mentioned G-1 in the construction programme, which is not to be done.

5. By means of this writ petition, petitioner has challenged the order passed by the bid accepting authority and also the decision taken by the Tender Technical Committee on petitioner's complaint.

6. Paragraph no. 7 of the counter affidavit filed on behalf of respondent nos. 2 & 3 would be relevant for understanding employer's objection regarding petitioner's technical bid, which is reproduced below:-

"7. That the contents of para no. 8, 9 and 10 of the wit petition are not admitted. In reply it is stated that in the construction of motor road the work of GSB, G-2, G-3 is to be done, which is included in the 'bill of quantity' of the tender, but the work programme/bar chart which the petitioner has uploaded, he has submitted the work programme/ Bar chart of GSB, G-1, G-2, and G-3, therefore, the same is not acceptable for the reason that he has given the work of G-1 in addition to G-2 and G-3. Whether the part of the road is boggy/marshy (nynyh) or not it comes to know only after working and therefore the decision in regard to the same is taken later on, but the road in question for which the tender has been invited no part of the road is boggy/marshy (nynyh) and apart from above as the G-1 'head' is not a part of the bar chart, therefore, it cannot be included in the same."

7. Bar chart/Bar Graphs are the pictorial representation of data in the form of vertical or horizontal rectangular bars on straight lines whose length is proportional to the measure of data. Bar chart are one of the means of data handling in statistics. Bar charts are also used for project scheduling in civil construction work, in which, a bar chart is drawn with a list of activities, specifying the start date, duration of the activity and completion date on vertical axis and the

time schedule is depicted on the horizontal axis. Thus a bar chart is a graphical tool that can be used to present data in easy to read, easy to understand manner and it provides for easy comparison for all provided data. It can be used to provide the project team and all those looking for project related information, data from the individual scheduled activity and work break-down structure components.

8. The bar chart submitted by petitioner with his technical bid is on record as Annexure-5 to the writ petition, in which, time is indicated on the horizontal axis and seven different activities are given on the vertical axis. As per the bar chart, entire work was to be completed within 12 months and different timelines were indicated for different works. In item no. 5 of the vertical axis of the bar chart, petitioner has mentioned WBM work (GSB), G-1, G-2, G-3 and as per the indicated timeline, WBM work was to commence from third month and was to be completed upto eleventh month.

9. WBM mentioned in the bar chart is an abbreviation for Water-Bound Mcadam, which is a technique used for road construction named after Scottish Engineer, John Loudon Mcadam. The wearing surface of WBM road consists of clean and crushed aggregates, which are mechanically interlocked by rolling operation. The material is bound with filler material (which are also called as screenings) and water laid on base coarse. There are mainly three types of materials, which are used in construction of WBM roads, namely:-

(a) Coarse Aggregate- Consisting of a mixture of hard and durable crushed aggregate and broken stones;

(b) Screenings- The material, which is used to fill the void or space left between aggregate particles after compaction is done, which consists of aggregates of smaller size; and

(c) Binding Material.

10. The expression "GSB" mentioned in item no. 5 in the vertical axis of the bar chart submitted by petitioner, stands for Granular-Sub-Base, which is a natural or designed construction material used for road construction as a sub-base layer. Granular-Sub-Base is a layer in road foundation just above the compacted sub-grade layer. It works like a drainage layer where water can pass through without damaging other road layers. The expression "G-1", "G-2" & "G-3" refers to the size of the aggregate/stone grit in which G-3 is smallest in size.

11. The objection against petitioner's bar chart is that he has mentioned G-1, which is bigger size stone grit, which is not to be used in the work of up-gradation of road.

12. From perusal of the bar chart, it is apparent that it gives a timeline for completing different activities involved in road construction. The objection raised by respondent nos. 2 & 3 against petitioner's bar chart is not that depiction of timeline is incorrect, but, the sole

objection is that G-1, which was not to be used in the work of up-gradation of road, has been included.

13. A specific query was put to Mr. Shailendra Singh Chauhan, learned counsel appearing for respondent nos. 2 & 3 as to whether there is any condition in the Tender Document/Instruction to Bidders, which forbids a bidder from mentioning G-1 in the bar chart or using G-1 in the work of up-gradation of road. Mr. Chauhan fairly submitted that there is no such condition in the Instruction to Bidders, which forbids mentioning of G-1 in the bar chart or use of G-1 in up-gradation of road.

14. In the absence of any condition in the Tender Document/Instruction to Bidders which prohibits mentioning of G-1, in the bar chart, rejection of petitioner's bid merely for the reason that he has mentioned G-1 in his bar chart, would not be justified.

15. Moreover, mere mention of G-1 in the bar chart neither causes any financial gain to the contractor nor any financial loss to the employer, as the contract is awarded for the whole work based on the price bid and contractor is not to be paid separately for different items used in the work. In other words, upon execution of contract, a successful bidder will not be paid price for the inputs used in up-gradation of road, separately, but, he will be entitled to receive only the amount quoted by him in his price bid.

16. Clause 25.3 of the Instruction to Bidders provides that a bid, which is not substantially responsive alone will be rejected by the employer.

Substantially responsive bid has been explained in clause 25.2. The bid submitted by petitioner cannot be said to be non-responsive merely on account of mentioning of G-1 in the bar chart, as it does not amount to material deviation or reservation, as it will not affect in any substantial way the scope, quality and performance of the work. In the bar chart, bidders were required to indicate the timeline for different activities to ensure that different activities in the project are completed as per the time schedule indicated in the bar chart, therefore, merely by mentioning G-1 in the bar chart, petitioner's bid will not become substantially non- responsive. As stated earlier, G-1, G-2 and G-3 denote stone grit aggregate of different sizes and it is not that G-1 is never used in road construction. The objection of the employer is that G-1 is not to be used in up- gradation of road. A material is used in construction activity as per requirement and it is nobody's case that petitioner will use G-1, even if, it is not required or warranted. This Court finds substance in the submission made by learned counsel for the petitioner that G-1 is integral part of the material used for construction of WBM Road, therefore, as a matter of abundant caution, petitioner had mentioned G-1 in the bar chart, but it does not mean that petitioner will use G-1, even if not required. As stated earlier, purpose of bar chart is to indicate the start date and completion date of different activities. Thus, bar chart is meant for scheduling different activities in the project. There is no condition in the tender document/Instruction to Bidders that only such material has to be mentioned in the bar chart, which is actually to be used in the project. Thus, in the absence of any guidelines in the tender

document/Instruction to Bidders, on this aspect of the matter, rejection of petitioner's bid cannot be justified.

17. Even otherwise also, the work of up-

gradation of road is done by a contractor under direct supervision and control of Engineers/Experts of the employer, therefore, mere mentioning of G-1 in the bar chart will make no difference to the quality of work. Even otherwise also, use of stone/grit of bigger size (G-

1) in up-gradation of road will lead to laying thicker layer of bituminous road, which will involve use of more material and would result in more expenditure for the given work, to the contractor.

18. Thus, in the humble opinion of this Court, rejection of petitioner's bid only on account of mentioning G-1 in the bar chart would be unjust and improper.

19. Having regard to the aforesaid facts and reasons, rejection of petitioner's technical bid only on account of mentioning of G-1 in the bar chart is unsustainable in the eyes of law.

20. Accordingly, the writ petition is allowed, the impugned orders dated 03.02.2020 & 27.02.2020, are liable to be quashed and are hereby quashed.

(MANOJ KUMAR TIWARI, J.) Navin