Uttarakhand High Court
M/S Kunwar Construction vs State Of Uttarakhand And Others on 12 September, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAKESH THAPLIYAL
12TH SEPTEMBER, 2023
WRIT PETITION (M/S) No. 3352 OF 2022
M/s Kunwar Construction.
...Petitioner
Versus
State of Uttarakhand and others.
...Respondents
Counsel for the petitioner. : Mr. Jitendra Chaudhary, learned
counsel.
Counsel for the State of : Mr. B.S. Parihar, learned Standing
Uttarakhand. Counsel for the State of Uttarakhand.
Counsel for respondent no. 2. : Mr. S.S. Chauhan, learned counsel.
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
We have heard learned counsels, and proceed to
dispose of the Writ Petition.
2. On 19.04.2023, while passing our order, we had
recorded the history of this case. The relevant paragraphs
read as follows :-
"5. This matter has a chequered history. The
petitioner had participated in the bidding process.
Petitioner's technical bid was cleared. Objections raised
by the competitors were considered, and rejected.
Petitioner's financial bid was found to be L1.
6. Thereafter, the petitioner's bid was sought to be
rejected on the technical ground that the affidavit
submitted by the petitioner was not in the correct
format. The petitioner assailed that decision by
preferring Writ Petition (M/S) No.1426 of 2022, which
was allowed by this Court on 14.11.2022 by holding that
the respondents could not have reviewed their earlier
decision of 14.06.2022, qua the petitioner's technical
bid, particularly, when the objections of the competitors
were examined and rejected.
7. Thereafter, the respondents have proceeded to
again hold that the petitioner does not meet the
technical criteria, inasmuch, as the bid capacity of the
petitioner is much below than that is required in the
tender, in question. The bid capacity of the petitioner is
stated only to be Rs.12.00 lakhs, as against the
minimum bid capacity of over Rs.4.00 crores required
for award of the contract.
3. The respondents were called upon to place on
record the complete exercise undertaken by the Evaluation
Committee, when the petitioner's technical bid was
examined, and was found to be in order. The respondents
were, specifically, required to disclose as to how the
petitioner's bid capacity was held to be acceptable in the
first round of evaluation. The further evaluation
undertaken, while examining the objections raised by
other competitors, was required to be placed on record.
4. The respondents have filed their counter
affidavit in pursuance of the said order.
5. In the said counter affidavit, reliance has been
placed on the Standard Bidding Document and Manual on
Procurement and Contract Management for PMGSY Rural
Roads Projects, which, according to the respondents,
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states that "the Procurement Evaluation Committee will
check the compliance with bid capacity requirements as
stipulated in ITB clause 4.6/ 4.4 D(v) as applicable during
evaluation of Part II bids."
6. Mr. Chauhan points out that when Part I
evaluation was done, the Committee had recommended
that "the Procurement Evaluation Committee will check the
compliance with bid capacity requirements as stipulated in
ITB Clause 4.6/ 4.4 D (v) as applicable during evaluation
of Part II bids".
7. The logic behind this methodology being
adopted was explained by Mr. Chauhan, to say that the
respondents decided to make sure that the successful
bidder has the bid capacity, as on the date of evaluation of
the financial bid, to execute the work in question
8. However, Mr. Chauhan has submitted that the
bid capacity of the petitioner was evaluated as on the date
of the issuance of the tender, i.e. 07.05.2022.
9. We find that the respondents have actually
acted contrary to their own understanding of the bid
evaluation process. Pertinently, the petitioner was issued
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a communication on 29.11.2022, requiring the petitioner
to provide the list of works being executed by the
petitioner, so as to assess his bid capacity before the
award of the contract. The petitioner had responded to
that communication on 30.11.2022. However, while
declaring the petitioner's technical bid to be disqualified -
on the ground of lack of bid capacity, the current
information provided by the petitioner on 30.11.2022 was
ignored, and the petitioner's bid capacity was assessed by
examining the position, as it existed, with regard to his bid
capacity, on 07.05.2022.
10. Mr. Chauhan does not dispute the fact, on
instructions, that, if the bid capacity of the petitioner were
to be evaluated as on the date of evaluation of the
financial bid, which is 16.12.2022, the petitioner had the
bid capacity to execute the work in question.
11. Mr. Chauhan has submitted that the work in
question was started way back in the year 2016, which
comprised of construction of a road, admeasuring about
14.5 kms. Out of the aforesaid work, about 10 kms. road
was constructed by the erstwhile contractor, and the
contract in question was to be awarded for completion of
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the balance work of the road. He has also pointed out that
there was a huge difference of nearly 50% between the
bids given by the petitioner and the L2 bidder, i.e. M/s
Bhagwan Singh Deopa.
12. The petitioner has placed on record the
Standard Bidding Document for PMGSY. The document
placed as Annexure No. 2 shows that it is for "Balance
Work of Ailagar to Jumma Motor Road Stage-I (0.000 to
14.500), Package No.RIDF- XXI/09/10 (based on Model
SBD June, 2020)", issued by Uttarakhand Rural Roads
Development Agency, Ministry of Rural Development,
Government of Uttarakhand.
13. Aforesaid being the position, the rejection of the
petitioner's technical bid on 16.12.2022 was, ex facie,
erroneous. Therefore, the respondents are bound to
consider the petitioner as technically qualified, since no
other reason for petitioner's technical bid disqualification
was found, or pointed out by the respondents. In fact, the
petitioner had earlier been declared to be technically
qualified by the respondents themselves.
14. Consequently, we allow this Writ Petition, and
direct the respondents to award the work to the petitioner
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forthwith, who, admittedly, was the L1 bidder. The steps,
with regard to award of the contract to the petitioner be
taken, subject to the petitioner complying with all other
conditions of the tender, and subject to his meeting the
bid capacity as on date.
15. The Writ Petition stands disposed of in the
aforesaid terms.
16. Consequently, pending application(s), if any,
also stand disposed of accordingly.
________________
VIPIN SANGHI, C.J.
__________________
RAKESH THAPLIYAL, J.
Dt: 12th SEPTEMBER, 2023
Rahul
