Dismissed

M/S. Gouri Construction, Nagpur through Proprietor Mr. Shriniwas Chandraidu Pedhabuddi v. State of Maharashtra, through Collector, Chandrapur and Others

Bombay HC2 Mar 2021WP/2252/2020

Case brief

AI extract

What is this about?

The Writ Petitioner challenged the disqualification in a tender process, arguing lack of hearing under a Govt Resolution. The Court found the bid rejected legally for non-compliance with essential conditions and dismissed the petition.

What did the court decide?

Writ Petition dismissed; no order as to costs.

What the court decided

M/S. Gouri Construction, Nagpur through… — Public Procurement and Tenders | Bombay HC (2021)

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

¶5

WRIT PETITION NO. 2252 OF 2020.

¶6

M/s. Gouri Construction, Nagpur …. Petitioner. - VERSUS- 1.State of Maharashtra and others. …. Respondents. …..... Shri A.R. Patil, Advocate for the Petitioner. Shri A.M. Deshpande, Additional Government Pleader for Respondent Nos.1 to 4. Shri N.C. Phadnis, Advocate for the Respondent No.5. Shri C.S. Samudra, Advocate for the Respondent No.6. ……... CORAM : NITIN JAMDAR AND ANIL S. KILOR, JJ. DATE : 2 MARCH 2021. P.C.

¶7

The disqualification of the Petitioner in the tender process floated by the Respondent no.4 – Executive Engineer, Public Works

Judgment

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Division No.1, Chandrapur, to execute a work of construction of major bridge, is the subject matter of the present petition.

¶12

We have heard the learned respective Counsel for the parties.

¶13

The brief facts of the present petition are as under :

¶14

The Petitioner is a Proprietary Business concern. The Government of Maharashtra, Public Works Department had issued a tender relating to road connectivity project for left wing extremist under Pradhan Mantri Gram Sadan Yojna (PMGSY) for “Construction of Major Bridge of (LANH River) Jungaon to Gangapur Tok Road in Pombhurna Taluka of Chandrapur District”. Pursuant to the said tender, the Petitioner submitted his offer on 11 August 2020.

¶15

Thereafter on 18 August 2020, the Petitioner received an e- mail informing the deficiencies in the technical document/bid submitted by the Petitioner, issued by the Respondent No.4. The said deficiencies were in respect of – non-compliance of Clauses 4.2 [g], 4.4 [B][b][i] and 4.6 of the tender document.

¶16

The Petitioner on 20 August 2020 informed the Respondent Nos. 3 and 4 that the details sought vide e-mail dated 18 August 2020 were already included in the tender offer and thereby the Petitioner clarified its position as regards the compliances.

Judgment

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The Respondent Nos. 3 and 4 after considering the clarification submitted by the Petitioner Firm, rejected the technical bid of the Petitioner on the ground of non-compliance of essential tender conditions relating to (1) Credit Facility Certificate; (2) Works Done Certificate and (3) Static Roller.

¶21

Thereafter upon finalization of tender process the work order was issued in favour of the Respondent No.5. Thus, the rejection of the technical bid of the Petitioner and issuance of work order in favour of the Respondent No.5, is under challenge in the present petition.

¶22

Shri Patil, the learned Counsel appearing on behalf of the Petitioner submits that in view of the provisions of the Government Resolution dated 17 September 2019, more particularly Clause 1 of the same, it is binding on the Respondent no.4 to grant opportunity of hearing to the Petitioner before rejection of its technical bid, which was not granted in violation of the principles of natural justice.

¶23

He submits that though there was substantive compliance made to each of the clause of the Tender, and though there were no deficiencies as alleged, the technical bid has been rejected on frivolous ground.

Judgment

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It is further submitted that the rejection of the technical bid of the Petitioner and award of the work order in favour of the Respondent No.5 is illegal and not sustainable in the eyes of law.

¶28

Shri Deshpande, the learned Additional Government Pleader appearing for Respondent Nos. 1 to 4, the State, draws attention to the tender conditions, more particularly conditions which relate to Credit facility certificate, Work done Certificate and Static roller. He submits that all these conditions are essential conditions and as per the terms and condition of the Tender, if bidder fails to comply with any of such essential conditions, the tender is liable to be rejected. Thus, he submits that the tender of the Petitioner was rightly rejected for non-compliance of conditions.

¶29

With regard the contention of the Petitioner that no opportunity of hearing was granted in view of the government resolution dated 17 September 2019, the learned Additional Government Pleader submits that Clause 1 is unambiguous as far as it says that in case of any doubt in respect of the details submitted by the bidder along with the technical bid, clarification should be sought from the bidder. It is submitted that as regards non fulfillment of essential conditions there was no doubt to the Respondent No.4 and therefore, there was no question of seeking clarification or giving hearing to the Petitioner.

Judgment

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Shri Phadnis, the learned Counsel appearing for the successful bidder – Respondent No.5, reiterated the submissions of the learned Additional Government Pleader and prays for dismissal of the Writ Petition.

¶34

We have considered the rival contentions of the parties and perused the record. The main thrust of the Petitioner is on noncompliance of Clause 1 of the Government Resolution dated 17 September 2019. However, before going into that we will first consider whether the Petitioner fulfills the necessary conditions.

¶35

The Petitioner is not disputing that the conditions incorporated in Clauses 4.2 [g], 4.4 [B][b][i] and 4.6 are the essential conditions, and if those are not fulfilled, the technical bid is liable to be rejected.

¶36

The tender clause No.4.2 [g] stipulates that all bidders shall submit Evidence of access to line[s] of credit and availability of other financial resources / facilities [20 percent of the contract value] certified by banker [the certificate being not more than three months old].

¶37

The said conditions specifically ask for a certificate by the Banker as regards credit and availability of the resources and other facilities. Undisputedly the Petitioner has submitted Chartered Accountant’s certificate and not of Banker along with his offer. The

Judgment

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Banker’s certificate which was produced by the Petitioner is dated 19 August 2020 i.e. subsequent to last date of submission of offer. Thus, on the face of record there is violation of the tender condition No. 4.2 [g].

¶42

As regards tender condition in Clause 4.6, it states that the bidders who meet the minimum qualification in criteria will be qualified only if their available bid capacity for construction work is equal to or more than the total bid value excluding maintenance. The said clause further states how the available bid capacity shall be calculated. For the purpose of this Petition the sub-clause ‘B’ is relevant which says that value at the current price level, of existing commitments and on-going works to be completed during the period of completion of the works for which bids are invited.

¶43

At the bottom of the aforesaid Clause, there is a ‘note’ which mentions that the statement showing the value of existing commitments and on-going works as well as the stipulated period of completion remaining for each of the works listed should be countersigned by the Engineer in charge, not below the rank of an Executive Engineer or equivalent, in the prescribed format with relevant document.

¶44

As per the above referred condition, the requirement was that the certificate shall be countersigned by the Engineer in-charge not below the rank of an Executive Engineer or equivalent.

Judgment

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Undisputedly, a certificate submitted by the Petitioner was signed by the authorized signatory of the Petitioner and not by the Engineer as stipulated in the said Clause. Thus, there was non-compliance of Clause 4.6

¶49

In relation to compliance of condition 4.4(B)(b(i), a document submitted by the petitioner shows that it is a sale deed on stamp paper showing that the ‘Static roller’ was purchased by him from one Shri Purushottam K. Katri. Undisputedly, the relevant documents of ownership of Static Roller were not produced by the Petitioner. Thus, there was no compliance of the said condition also.

¶50

Having considered the documents submitted by the Petitioner along with its technical bid in compliance of tender conditions in Clauses 4.2 [g], 4.4 [B][b][i] and 4.6, it is clear that none of the said essential conditions were fulfilled by the Petitioner.

¶51

At this juncture, it will be appropriate to refer to Clause 1 of the Government Resolution dated 17 September 2019 to consider the contention of the Petitioner that the Respondent Authorities have not given him hearing before rejection of his technical bid, which reads as under :

¶52

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Judgment

wp2252.20

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¶57

On bare reading of the above referred clause it is clear that in case of any doubt as regards the details submitted along with the technical bid by a bidder, a clarification may be sought from the bidder to eliminate such doubt. As we have already observed that the three essential conditions have not been fulfilled by the Petitioner, therefore, in this matter there is no question to seek any clarification from the Petitioner or to grant him hearing by the Respondent No.4, as argued. Hence, we reject the said contention of the Petitioner.

¶58

For the reasons recorded herein above we do not find any error in rejecting the technical bid of the Petitioner and awarding the work to the Respondent No.5 as the lowest one amongst the successful bidder.

¶59

In the circumstances we do not find any merit in the matter, and pass the following order.

Judgment

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ORDER

The Writ Petition is dismissed. No order as to costs.

¶65

(ANIL S. KILOR, J) (NITIN JAMDAR, J)

¶66

Rgd

M/S. Gouri Construction, Nagpur through Proprietor Mr. Shriniwas Chandraidu Pedhabuddi v. State of Maharashtra, through Collector, Chandrapur and Others

Case brief

What is this about?

What did the court decide?

What the court decided

M/S. Gouri Construction, Nagpur through Proprietor Mr. Shriniwas Chandraidu Pedhabuddi v. State of Maharashtra, through Collector, Chandrapur and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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