Dismissed

Dsp Construction Company v. Vadnagar Nagar Palika

Gujarat HC28 Nov 2022SCA/7882/2022

Case brief

AI extract

What is this about?

The Court dismissed a Special Civil Application challenging the rejection of the petitioner's technical bid in a public tender. Holding that the tender authority's discretion regarding contract terms was not flawed and noting that substantial work was already executed, the Court found no merit in reopening the bids.

What did the court decide?

Special Civil Application rejected; Notice discharged; No order regarding costs.

Dsp Construction Company Vs Vadnagar Nagar… — Public Procurement and Tenders | Gujarat HC (2022)

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 7882 of 2022

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============================================= DSP CONSTRUCTION COMPANY

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Versus VADNAGAR NAGAR PALIKA

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============================================= Appearance:

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MR NL RAMNANI(2400) for the Petitioner(s) No. 1 for the Respondent(s) No. 2,3,4 MS NIMAL CHAUHAN FOR MR MEHUL H RATHOD(701) for the Respondent(s) No. 1

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=============================================

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

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and

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HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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Date : 28/11/2022 ORAL JUDGMENT

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(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

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Mr.Mehul Rathod, learned counsel appearing for the respondent has circulated leave-note. However, learned counsel appearing for petitioner has opposed any adjournment being granted. Hence, leave-note circulated by learned advocate for respondent stands rejected. However, we note that respondent is represented by Ms.Nilam Chauhan, learned advocate, who is present before the Court and she assures the Court to address the arguments on behalf of Mr.Mehul H. Rathod.

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Page 1 of 9

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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Since the matter lies on a narrow compass, we have taken up this matter for final disposal with consent of learned advocates appearing for the parties.

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Respondent invited e-tenders for the work of construction of CC road, divider, grill, plantation and storm waterline in various area at Vadnagar under SJMMSVY - Sadak Yojana, District Mehsana by tender notice dated 12.02.2022. Said tender was under two tier basis namely technical and financial. Petitioner is a proprietory concern and duly registered as ‘A’ Class contractor with the Government of Gujarat. He participated in the subject tender by submitting his bid. As per the tender conditions, technical bid was required to be opened on 02.03.2022 and final bid or financial bid was required to be opened on 04.03.2022. Accordingly, it was opened and in the technical bid, petitioner came to be disqualified. As such, his financial bid was not opened and on opening the financial bid, respondent No.2 was found to be L1 bidder and accordingly, contract has been awarded by issuance of work order dated 28.04.2022.

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Page 2 of 9

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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Being aggrieved by not opening of his tender, petitioner has approached this Court and sought for a direction to respondent No.1 to open the bid submitted by petitioner. The prayer sought for by petitioner reads :

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“(B) Your Lordship will be pleased to allow this petition by issuing a writ of Mandamus or Certiorari or any other appropriate writ in the form of order of directions to the respondent No.1 Nagarpalika directing them to open bid which of the petitioner, and after scrutiny of all the bids, L-1 bidder may be awarded the work order of the work in question.”

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On being notified respondent has appeared and filed its reply affidavit whereunder the averments made in the petition has been denied except to the extent admitted thereunder. It is contended that first respondent has adhered to the terms and conditions stipulated under the notice inviting bid and there is no illegality or irregularity and by relying upon Clause-6 of the notice inviting tender, it is contended that petitioner has not fulfilled said criteria and as such, bid offered by petitioner came to be disqualified and question of opening financial bid submitted by petitioner did not arise at all.

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Page 3 of 9

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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We have heard the arguments of Shri N.L. Ramnani, learned counsel appearing for the petitioner and Ms.Nilam Chauhan, learned counsel appearing for respondent.

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It is the contention of Mr.Ramnani, learned counsel appearing for the petitioner that respondents had committed a serious error in rejecting the bid of the petitioner namely technical bid and it was without any basis. He would draw parallel to the claim of respondent No.2 who had also purportedly not fulfilled condition No.6 stipulated under the notice inviting tender and yet his bid was accepted and he has been offered the bid and as such, contending that the acts of respondent No.1 is tainted with malafides and there are not bonafides, he seeks for Special Civil Application being allowed. He would also submit that reasons assigned for rejection of the bid as indicated in the reply affidavit were never informed to the petitioner and as such, he prays for grant of prayers made in the Special Civil Application.

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Page 4 of 9

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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Per contra, Ms.Nilam Chauhan, learned advocate appearing for the respondent would contend that process adopted by first respondent for evaluating the tender in stricto sensu of the terms of the notice inviting tender and there is no error much less illegality committed by the respondent which would call for exercise of extraordinary jurisdiction by this Court. She would elaborate her submissions by contending that there being no flaw in the decision making process, the decision arrived at by the first respondent authority in rejecting the technical bid or in other words, petitioner being knocked out in the technical evaluation cannot be found fault with. Hence, she prays for rejection of the Special Civil Application.

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Having heard the learned advocates appearing for parties and on perusal of records, we are of the considered view that bid of the petitioner has been technically not accepted on account of petitioner having not conformed to Clause-6 of the condition stipulated

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Page 5 of 9

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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under notice inviting tender. It reads thus :

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“6. The Contractor have a fully automatic batching plant and transit mixer in 10 km transported to site of work.”

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Undisputedly, the tender which came to be invited was for the purposes of construction of road, divider, storm waterline, grill and plantation which involves civil work. Obviously keeping this aspect in mind, the tender inviting authority in its wisdom has thought fit to insist upon the tenderers to have or possess an automatic “batching plant” within the vicinity of 10 Kilometers of site and in this background, Clause-6 has been incorporated. This Court in exercise of power vested under Article 226 would not sit in the armchair of the tender inviting authority to evaluate as to whether the said condition ought to have been incorporated or not. The tender inviting authority is the best person to decide as to what is its requirement. The Courts not being experts and not having expertise in the field cannot substitute its view to that of experts. Same has to be

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Page 6 of 9

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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necessarily left to the discretion of the tender inviting authority or free play has to be extended to the tender inviting authority insofar as fixation of the terms of the contract or fixation of the terms of the tender supposedly to be met by the tenderers. This aspect having received the attention of the first respondent has resulted in technical bid of the petitioner having not been accepted and non-qualification of petitioner under the prescribed pre-qualification criteria having been web-hosted in the website of the first respondent authority on 04.03.2022 at 14:38:52 hours, it cannot be gainsaid by the petitioner that it was not aware of rejection of its technical bid, as is evident from Annexure-R/2. In fact, petitioner has not challenged Condition No.6 which it ought to have if at all it was aggrieved by said condition. Said exercise having not been undertaken, it is too late in the day for petitioner to find fault with the decision and we do not see any flaw in the decision making process calling for our interference.

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Page 7 of 9

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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Apart from the reasons aforestated, yet another reason which persuade us to dismiss this Special Civil Application is the fact that work order had been issued in favour of the second respondent way back on 28.04.2022 and it is submitted by learned counsel appearing for the respondent that 90% of the work has already been completed. Hence, at this juncture, issuing a writ of mandamus to first respondent to open the financial bid submitted by petitioner would only be an exercise in futility and as such, we do not see any other good reason to entertain the Special Civil Application.

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It is further contended that petitioner was never communicated the decision with regard to rejection of the bid namely the reasons assigned for such rejection. When bid submitted by the petitioner has been specifically knocked out at the stage of technical evaluation and bid of the petitioner was rejected due to technical flaw in its bid and same having been webhosted, there was no need or necessity for respondent No.1 to have intimated petitioner for reasons rejecting

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Page 8 of 9

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C/SCA/7882/2022 JUDGMENT DATED: 28/11/2022

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the bid separately. That apart, the communications placed on record particularly the communication dated 07.03.2022 does not indicate petitioner having demanded the respondent the reasons for having rejected the bid which had taken place according to first respondent on 04.03.2022 itself.

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For the reasons aforestated, Special Civil Application stands rejected as being devoid of merits. Notice stands discharged. There shall be no orders as to costs.

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(ARAVIND KUMAR, CJ)

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(ASHUTOSH J. SHASTRI, J)

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GAURAV J THAKER

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Page 9 of 9

Dsp Construction Company v. Vadnagar Nagar Palika

Case brief

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Dsp Construction Company v. Vadnagar Nagar Palika

Case brief

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