WPMB/32/2023
2023 Latest Caselaw 1359 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

                      SRI JUSTICE VIPIN SANGHI, C.J.
                                  AND
                    SRI JUSTICE RAKESH THAPLIYAL, J.

17TH MAY, 2023 WRIT PETITION (M/B) No. 32 OF 2023 Between:

Khetwal Projects Pvt. Ltd. .......Petitioner

and

State of Uttarakhand and others. ....Respondents

Counsel for the petitioner : Mr. Devadatt Kamat, learned Senior Counsel assisted by Mr. Vikas Bahuguna.

Counsel for the respondents : Mr. J.C. Pande, learned Standing Counsel for the State of Uttarakhand. Mr. Abhijay Negi and Ms. Snigdha Tiwari, learned counsel for respondent Nos. 2 and 3.

Ms. Garima Thapa, learned counsel for the private Contractor.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT : (per Sri Vipin Sanghi, C.J.)

A Supplementary Counter Affidavit has been filed

by Mr. Abhijay Negi, learned counsel for respondent Nos. 2

& 3 in the Court. The same is taken on record.

2. We have heard learned counsel for the parties.

3. The petitioner has assailed the rejection of the

petitioner's technical bid on two grounds, namely that the

Experience Certificate submitted by the petitioner is of

another Firm, and secondly, that the work is not of similar

nature.

4. If either of these two grounds for rejection of the

technical bid is made out, in our view, this petition would be

liable to be dismissed.

5. Clause 2.4.2 of the Tender Document requires

specific construction experience to be shown by the bidders.

Requirement    Single                  Joint Venture                Submission

               Entity                                               Requirements


                          All    partners   One         Each
                          combined          Partner     Partner
Participation    Must meet Must       meet Not          Not         Form      given   in
as        prime requiremen requirement     applicable   applicabl   Section 4
contractor in t                                         e           EXP 2
at least One
contract that
was started
and         had
been
successfully
completed in
any one year
in last Five
years, with a
value of at
least 25% of
the
estimated
cost of the
work,       and
that         are
similar to the
proposed
works.        It
shall consist
of       Stone
masonry and
cement
concrete
work in any
natural        /
artificial
drainage.

6. The bidders had to show their experience in Form

EXP 2. As we have already noticed in our order passed

yesterday, the Form EXP 2 submitted by the petitioner only

related to road work, and did not relate to 'stone masonry

and cement concrete work in any natural / artificial

drainage'.

7. The submission of Mr. Kamat, learned Senior

Counsel for the petitioner, is that this Court should look at

the BOQ of the work in question, and if the same is

examined in the light of the work experience of the

petitioner, the petitioner would be found to be having the

requisite experience. We refuse to undertake any such

exercise.

8. Clause 2.4.2 is very specific. It lays down the

requirements, which the bidders have to meet. The last

sentence, namely "It shall consist of Stone masonry and

cement concrete work in any natural / artificial drainage"

cannot be read as mere surplus. Even without this

sentence, the requirement could have been complete.

However, the respondents have consciously included the

past experience, which the bidders should have in stone

masonry and cement concrete work in any natural / artificial

drainage. Admittedly, the petitioner does not have that

experience, as the petitioner has provided in Form EXP 2 the

work related to road construction.

9. Mr. Kamat has sought to draw our attention to the

experience certificate of the petitioner and related

documents to show that the petitioner has done the work of

constructing Kachcha drain and undertaking the cross-

drainage work.

10. Prima facie it appears to us that neither of these

two works can be equated with 'stone masonry and cement

concrete work in any natural / artificial drainage'. Even

otherwise, these are technical issues, which we are not in a

position to evaluate and assess. Such technical evaluation

can only be undertaken by a technically qualified person,

which has been done.

11. We, therefore, do not find any reason to interfere with the rejection of the petitioner's technical bid. Consequently, the writ petition is dismissed.

12. Consequently, pending application, if any, also stands dismissed.

13. Let certified copy of this order be issued today itself, on payment of the prescribed charges, as per rules.

________________ VIPIN SANGHI, C.J.

____________________ RAKESH THAPLIYAL, J.

Dt: 17th May, 2023 Rathour