Dismissed

Ujjwal Singh Joint Venture v. State of Hp and Others

Himachal Pradesh HC2 Jul 2024CWP/999/2024

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of the petitioner's technical bid in a public tender for road works under PMGSY. The Court held that the work was not satisfactorily completed as required by the tender and dismissed the petition.

What did the court decide?

The writ petition was dismissed with no order as to costs.

What the court decided

Ujjwal Singh Joint Venture Vs State… — Public Procurement and Tenders | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:4280 )

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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CWP No.999 of 2024.

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Reserved on : 26th June, 2024. Date of Decision : 2nd July, 2024.

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Ujjwal Singh Joint Venture . ...Petitioner. Versus State of H. P. & Ors. ... .Respondents.

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Coram:

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The Hon’ble Mr. Justice M. S. Ramachandra Rao, Chief Justice. The Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting? No.

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For the Petitioner: Mr. Deepak Kaushal, Senior Advocate with Mr. Sameer Thakur and Mr. Aditya Chohan, Advocates. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Sidharth Jalta, Deputy Advocate General.

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Satyen Vaidya, Judge.

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Petitioner has filed the instant petition for following

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substantive reliefs:-

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(i) That the impugned bid evaluation report/result dated 05.02.2024 may kindly be set aside to the extent it rejects the Part-I bid of the petitioner as non-responsive;

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(ii) That the respondents may kindly be directed to reevaluate the Part-I technical qualification bid of

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…2…

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the petitioner strictly as per the terms and conditions of the tender document and the petitioner may kindly be declared as technically qualified as per the parameters laid down in clause 4.4.A(b) read with clause 4.4 D of the instructions to bidders;

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(iii) The petitioner’s Part-II bid may also be opened along with the two other bidders;”

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The 3^rd respondent herein invited bids for execution of civil

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works for upgradation of following roads:-

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(i) Nagrota Baldhar Sihund Paddar Road Km 0/0 to

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7/300 Package No. HP-04-423;

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(ii) Thanda Pani Jagni to Khabbal Kholi Kharat Road

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Km 0/0 to 8/030 Package No. HP-04-424;

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(iii) Kandi to Saroot Roard Km 0/0 to 7/780 Package

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No. HP-04-431;

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(iv) Dehrian to Kandi Road Km 0/0 to 9/545 Package

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No. HP-04-436 and their maintenance for five years

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for an estimated cost of Rs.2485.72 lakhs, ‘in short; the contract work’.

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The contract work was required to be executed under

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“Pradhan Mantri Gram Sadak Yojana” (PMGSY) and the standard

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terms of contract under PMGSY were made applicable.

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Two-part bids were required to be submitted i.e. technical and financial. The bidders qualifying technical bid were to be considered for participation in financial bid.

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The petitioner was one of the bidders, however, could not qualify the technical evaluation and its bid was held to be nonresponsive. Petitioner claims that his technical bid has wrongly been held to be non-responsive notwithstanding the fact that he fulfilled the entire technical criteria.

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Per contra, the respondents have defended their action by alleging that the technical bid of the petitioner was rightly rejected as it did not comply with clause 4.4. A (b) of instructions to bidders (ITB).

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We have heard learned counsel for the parties and have also gone through the entire record carefully.

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It has been contended on behalf of the petitioner that its technical bid was fully in compliance with clause 4.4 A (b) of ITB; as the work in terms of said clause was duly certified by the competent authority vide certificate dated 19.12.2023, Annexure P-2. On the strength of this document, it has been submitted that the total award amount of the work done by the petitioner in terms of clause 4.4 A (b)

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of the ITB was 5,75,40,036/-. The commencement of work was

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…4…

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25.03.2023 with stipulated date of completion as 24.09.2024. The petitioner had completed the work worth Rs.5,21,00,000/- till the date of issuance of certificate i.e. 19.12.2023. It is further contended that the respondents have adopted the norm to relax the condition of clause 4.4 A(b) of ITB and the cases where the work was still in progress but substantially completed were considered compliant with said clause. To quote precedents, the petitioner has referred to instances by submission of documents viz . Annexure P-5 and Annexure P-8 (Colly.). It has specifically been submitted that one of the partners of petitioner had been awarded four civil works on the basis of certificate dated 17.08.2016 issued by the competent authority, where also the work was still in progress. On such basis, the petitioner has claimed that its work as per certificate Annexure P-2, though shown to be still in progress, was compliant with clause 4.4. A (b) of ITB.

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The contention so raised by the petitioner has been sought to be rebutted by respondents by alleging that the petitioner cannot claim any benefit on the basis of certificate dated 16.12.2022 Annexure P-5 as it was a solitary instance as a result of some mistake. As regards the award of works to one of the partners of petitioner on the basis of certificate dated 17.08.2016, it has been submitted that in that case

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100% work had been completed and for such reason the petitioner was not entitled to claim any parity. In addition, it has also been submitted by respondents that the certificate Annexure P-2 was otherwise also non-compliant with clause 4.4 A (b) of ITB as it did not certify the technical proficiency and quality of work.

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Clause 4.4 A(b) of instructions to bidders reads under:-

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“4.4 A To qualify for award of the Contract, each bidder should have in the last five:

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(a) ……..

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(b) Satisfactorily completed, as prime Contractor or subcontractor, at least one similar work equal in value to one-third (one fourth in case of Naxal/LWE affected districts) of the estimated cost of work (excluding maintenance cost for five years) for which the bid is invited, or such higher amount as may be specified in the Appendix to ITB. The value of road work completed by the bidder under Pradhan Mantri Gram Sadat Yojana is originally stipulated period of completion shall be counted as 120% for the purpose of this Subclause.”

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The plain reading of aforesaid condition clearly stipulates that the bidder should have satisfactorily completed one similar work equal in value to 1/3rd of the estimated cost of work (excluding maintenance cost for five years) for which the bid is invited. Further,

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the premium is available to the bidder by consideration of his work at

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120% in case the same has been completed under PMGSY in original stipulate period of completion.

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Petitioner has failed to establish that the respondents have adopted a practice or norm to consider the works in progress as completed for satisfaction of clause 4.4 A (b) of ITB. The certificate issued in favour of one of the partners of the petitioner on 17.08.2016 does not substantiate the plea raised by the petitioner. Evidently, the awarded amount in the contract relied upon by the petitioner vide certificate dated 17.08.2016 was Rs.1,51,22,331/- and the contractor had executed the work worth Rs.1,55,78,525/- which was certified as 100% of awarded components. Simply because in the certificate actual date of completion was remarked as “in progress” the same will not help the cause of the petitioner, since the concerned contractor had already achieved 100% completion of awarded components.

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As regards certificate Annexure P-5, the same cannot be made basis for holding that the respondents as matter of practice and norm have been allowing even incomplete works to be considered for the purpose of clause 4.4 A(b) of ITB for the reason that it is a solitary instance and has been admitted by respondents to be result of some mistake. The petitioner cannot seek negative parity.

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Certificate submitted by the petitioner in compliance to Clause 4.4 A(b) of ITB, Annexure P-2, clearly reflects that the work was in progress. The gross amount of work completed was reflected as 5,21,00,000/- against the award amount of Rs.5,75,40,036/-. The certificate was issued on 19.12.2023. As per the contention raised by the petitioner itself, one of the partners of the petitioner had completed the work to the extent of 98% as per the certificate Annexure P-2 after deducting the amount reserved for maintenance costs. Still, the petitioner did not qualify the requirement of “ satisfactorily completed ” work. Certificate Annexure P-2 further reveals that the work had not been certified to be satisfactory, therefore, for this reason also petitioner was not fulfilling the requirement of clause 4.4 A(b) of ITB in letter and spirit.

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This Court while exercising the jurisdiction under Article 266 of the Constitution of India cannot rewrite the terms of contract between the parties. Parties are bound by the contract and as noticed above; the petitioner has failed to establish that it had complied with clause 4.4 A(b) of the ITB.

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Petitioner has also not been able to plead or establish any malafide against the respondents.

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In result, we find no merit in the petition and the same is accordingly dismissed with no order as to the costs. Pending applications, if any, also stand disposed of.

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( M.S. Ramachandra Rao) Chief Justice.

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(Satyen Vaidya) Judge

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2^nd July, 2024. (jai)

Ujjwal Singh Joint Venture v. State of Hp and Others

Case brief

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Ujjwal Singh Joint Venture v. State of Hp and Others

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