Dismissed¶18

Rabindra Rout v. State of Odisha

Public tenders – rejection of technical bid

Orissa HC8 Oct 2024WP(C)/2145/2023

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Case brief

AI extract

What is this about?

W.P.(C) No.2145 of 2023, Orissa High Court, order dated 08.10.2024, Rabindra Rout v. State of Odisha: legality of rejecting a technical bid after L-1 declaration for 'NIL'/incorrect entry of existing commitments; Clause 26.2 and Clause 4.6 DTCN; curable versus non-curable defects in tender evaluation; Technical Evaluation Committee; RWSS Division, Balasore; TCN No.25/2022/23; petition dismissed.

What did the court decide?

Clause 26.2(ii) of the DTCN contemplates seeking clarification/subsequent submission where a bidder has not submitted listed documents with the bid; but the petitioner here had given incorrect information by mentioning 'NIL' in the relevant column, so the question of providing proof of eligibility subsequently does not arise. ¶14

Rabindra Rout Vs State of Odisha — Orissa HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶18

Issue for consideration

Whether the rejection of the petitioner's technical bid, which had initially been found responsive, through the letters dated 11.01.2023 and 12.01.2023 issued on account of the 'NIL' entry against the value of existing commitments, was legal. +2 more

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Court's answer

There is no illegality in the rejection of the petitioner's technical bid even after the petitioner had been declared L-1, because it was discovered subsequently that the petitioner had existing work commitments but had given wrong information in the bid document by mentioning 'Nil'.

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Ratio / Principle

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Key takeaways

The petitioner's contention that the non-submission of the documents/information regarding the value of existing commitments is a curable mistake is not acceptable.ratio¶14
The court makes no comment on the petitioner's allegation/complaints against the other bidders, as the work awarded to the successful bidder is not under challenge in this writ petition.obiter¶17

Detailed headnote1 paragraphs

Public tenders — rejection of technical bid — petitioner, though initially declared technically qualified and lowest (L-1) bidder for the Sl.No.5 package under TCN No.25/2022/23, had marked 'NIL' against the value of existing commitments and ongoing works to be completed within the next eleven months; following complaints, letters dated 11.01.2023 and 12.01.2023 disqualified him. Held: Clause 26.2(ii) of the DTCN permits cure only where listed documents were not submitted; furnishing incorrect information ('NIL') instead is not a curable mistake and the Clause-26.2 route does not avail the petitioner. No illegality in rejection of the technical bid after L-1 declaration. Writ petition dismissed; no comment made on complaints against other successful bidders as that award is not under challenge. (Orissa High Court at Cuttack, 08.10.2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.2145 of 2023

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Sri Rabindra Rout

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…. Petitioner

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Mr. Sameer Kumar Das, Advocate

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-versus-

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State of Odisha and others

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…. Opposite Parties Mr. P.P. Mohanty, A.G.A. Mr. S.R. Mohanty, Advocate ( For opposite party No. 5 )

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CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO

ORDER

Order No.

08.10.2024

This matter is taken up through Hybrid mode.

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The petitioner has filed the present writ petition challenging a letter dated 11.01.2023 issued by opposite party No.2 and also a letter dated 12.01.2023 issued by opposite party No.3, the effect of which is rejection of its technical bid which was initially found to be responsive. The consequential work order, which may be issued in favour of opposite party No.5 or 6, has also been challenged. The petitioner is also seeking, a direction to the opposite parties to settle the tender in question in its favour.

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The dispute arises out of a tender Call Notice TCN No.25/2022/23 dated 08.09.2022 where e-tender process was initiated by the Executive Engineer, RWSS Division, Balasore for online bidding in relation for five projects –

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Page 1 of 8

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Packag e no.	Name of the work	Appx.Valu e of Work (Rs.)	Cost of Bid Documents (Rs.)	Period of complet ion	Availability of tender online for bidder	Class of Contr actor
01	Execution of 5 Nos.New RPWS Schemes (Clubbed up)1.Parad eepapal, 2.Deepapal , 3.Kudia, 4.Nuapur, 5.Badasind hia under Balasore block with 5 Yrs OM of Balasore district	457.56	10000	33- days	From 16.00 hours of dt.13.09.2022 to 17.00 hours of dt.22.09.2022	A & Specia l
02	Execution of 3 Nos.Retrofi tting RPWS Schemes (Clubbed up), 1.Chhatrap ur, 2.Kaduani, 3.Gohira under Nilgiri block with 5 Yrs OM of Balasore district	356.72	10000	330 days	From 16.00 hours of dt.13.09.2022 to 17.00 hours of dt.22.09.2022	A & Specia l
03	Execution of 1 No.Retrofit ting RPWS Scheme	363.05	10000	330 days	From 16.00 hours of dt.13.09.2022 to 17.00 hours of	A & Specia l

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Page 2 of 8

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	Sardang & Adj. villages under Kharia block with 5 Yrs. OM of Balasore district				dt.22.09.2022
04	Execution of 1 No.Retrofit ting RPWS Scheme Tudigadia & Adj.villages under Kharia block with 5 Yrs OM of Balasore district	358.04	10000	330 days	From 16.00 hours of dt.13.09.2022 to 17.00 hours of dt.22.09.2022	A & Specia l
05	Execution of 3 Nos.Retrofi tting RPWS Scheme (Clubbed up) 1.Jirtal, 2.Kasabaja ypur, 3.Mulakud ei under Bahanga block with 5 Yrs OM of Balasore district	323.25	10000	330 days	From 16.00 hours of dt.13.09.2022 to 17.00 hours of dt.22.09.2022	A & Specia l

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Page 3 of 8

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The petitioner had submitted his bids for the works as Sl. No.2, 3 and 4. Seven bidders had applied and uploaded their documents including the petitioner. The petitioner was found to be technically qualified and the lowest bidder in respect of the work at Sl.No.5 in relation to - Retrofitting Rural Piped Water Schemes (Clubbed up) 1. Jirtal, 2. Kasabajaypur, 3.Mulakudei under Bahanaga Block including operation and maintenance for five years.

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Certain documents were found to be wanting in respect of some of the bidders including the value of all the existing commitment and ongoing works to be completed in next eleven months as per Appendix-1 (1.3 Format). Such bidders including the petitioner were requested to furnish the said documents. The Technical Evaluation Committee in its meeting held on 10.11.2022 declared the petitioner technically qualified.

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It is noteworthy that the petitioner had shown ‘NIL’ against the “value of all existing commitments and ongoing work to be completed during next 11 months”. The financial bids were opened of the bidders who were successful in the technical bid including that of the petitioner.

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As complaints were received against the bidders who were declared L-1 (the petitioner) and L-2 to the effect that they had deliberately withheld and submitted false documents to mislead the Department as regards the value of their existing commitments. It is noteworthy that the petitioner had shown ‘NIL’ against the “ value of all existing commitments and ongoing work to be completed during next 11 months ”.

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Page 4 of 8

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The Technical Evaluation Committee vide its letter dated 11.01.2023 (impugned) communicated to the Additional Chief Engineer, RWSS Circle, Balasore that Suchitra Construction, the petitioner and one Goutam Dwary had not submitted the updated value of existing commitment and tried to hide the facts relating to the existing commitment. Another meeting of the Technical Evaluation Committee was held on 12.01.2023 where the petitioner, Goutam Dwary and Suchitra Construction, who had earlier been declared as technically qualified were declared to be disqualified. This is the background in which the letters dated 11.01.2023 and 12.01.2023 were issued.

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Mr. Sameer Kumar Das, learned counsel appearing on behalf of the petitioner has vehemently argued that the terms of Clause26.2 of the DTCN lay down the circumstances in which a tender can be rejected. Referring to the said Clause, he has argued that nonsubmission of existing commitment could not be a ground for rejecting the petitioner’s technical bid. He has further argued that it is true that the petitioner had mentioned ‘NIL’ against the existing commitment. But the same was unintentional and it was a mistake and such mistake was curable. At no time had the petitioner been asked to submit the deficient documents, which could have been done under Clause-26.2 of the tender call notice .Since his bid has been rejected without notice, it should be accepted and work order issued in his favour.

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Counter affidavit has filed on behalf of opposite parties No. 1 to 4 and rejoinder filed by the petitioner.

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Page 5 of 8

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Learned counsel representing the State and opposite party No.5 have argued that the petitioner had deliberately suppressed the material information as regards its existing commitment which is one of the considerations for an effective evaluation of a technical bid. They have submitted that therefore, there is no illegality in rejecting the petitioner’s technical bid, which had initially been found to be responsive.

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It is an admitted fact that (after having considered the pleadings on record and the submissions advanced, we noticed that) in terms of the DTCN, the bidders were required to disclose their existing commitments which information the petitioner had admittedly withheld by marking ‘NIL’ in the relevant column. It was only after certain complaints were received and examined that the authorities could know about the petitioner’s existing commitment, for which the petitioner who had been declared to be technically qualified initially was disqualified.

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It is the specific case of the State-opposite parties that as per the provisions laid down in Clause-4.6 of the DTCN, only those bidders meet the eligibility criteria if their available bid capacity is more than total bid value. The “ value of the existing commitment and ongoing works to be completed during next 11 months ” is an important component for determining as to whether the bidders meet the eligibility criteria or not in terms of Clause-4.6 of the DTCN.

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Clause 26.2 of the DTCN is extracted hereunder :-

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“26.2 (i) A tender shall be rejected if;

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Page 6 of 8

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a) Price Bid is enclosed with the technical bid.

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b) Proof for payment of Cost of tender document through on-line payment is not enclosed.

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c) Bid Security Declaration on EMD (Schedule-J) as per DTCN is not enclosed.

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d) Proof of eligibility and qualifications i.e. annual turn-over as well as experience certificate in execution of works similar nature or Civil Engg. Works are not uploaded

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(ii) In case if the bidder has not submitted following document with the bid due to any reason, clarification may be sought and queries may be issued to the bidders for submission of the same with a stipulated perid, failing which their offer shall be liable for rejection.

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e) Proof of eligibility and qualifications is not enclosed.

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f) There are any criminal cases pending.

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g) PAN is not enclosed.

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h) Affidavit is not enclosed.

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i) Power of Attorney is not enclosed.

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j) Record of litigation and arbitration is not enclosed.

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k) Other documents as required as per DTCN not enclosed.

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l) GST Registration Certificate not enclosed.”

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In Clause-26.2, (ii) the list documents which can submitted earlier and subsequently have been given, which includes proof of eligibility and qualification. But in the present case, the petitioner had given incorrect information and mentioned ‘NIL’ in the relevant column and so the question of providing proof of eligibility subsequently does not arise. The petitioner’s contention that the nonsubmission of the documents/information regarding value of existing commitments is a curable mistake is therefore not acceptable to us.

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Page 7 of 8

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We do not find any illegality in rejection of the petitioner’s technical bid after the petitioner had been declared as L1 as it was discovered subsequently that the petitioner had existing work commitment but had given wrong information in the bid document by mentioning “ Nil”.

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Mr. Das, learned counsel appearing on behalf of the petitioner has submitted that complaints had also been made against the bidders who were declared successful.

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We are not making any comment in the present proceeding as regards the allegation of the petitioner against other bidders as the work awarded to the successful bidder is not under challenge in this writ petition.

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As we are of the view that there is no illegality in rejection of the petitioner’s technical bid, we do not find any merit in the writ petition , which are accordingly dismissed.

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(Chakradhari Sharan Singh) Chief Justice

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(Savitri Ratho) Judge

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S.K. Guin/PA.

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Page 8 of 8

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Signature Not Verified

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Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Jan-2025 18:00:41

Procedural history

How this case reached the court

AI extract

Order under challenge
Letters dated 11.01.2023 (issued by opposite party No.2) and 12.01.2023 (issued by opposite party No.3), the effect of which is rejection of the petitioner's technical bid which had initially been found responsive; consequential work order in favour of opposite party No.5 or 6 also challenged.¶2
Technical Evaluation Committee · 11.01.2023 and 12.01.2023
Prior proceeding
Tender Call Notice TCN No.25/2022/23 dated 08.09.2022; e-tender process initiated by the Executive Engineer, RWSS Division, Balasore for online bidding for five projects.¶3
Prior proceeding
Petitioner submitted bids for the works at Sl. No.2, 3 and 4; seven bidders had applied.¶4
Prior proceeding
Petitioner found technically qualified and lowest bidder for the work at Sl.No.5 (retrofitting RPWS schemes at Jirtal, Kasabajaypur, Mulakudei, Bahanaga Block, with 5 years OM).¶4
Prior proceeding
Certain documents (including value of all existing commitments and ongoing works to be completed in next eleven months per Appendix-1 (1.3 Format)) were found wanting; bidders were asked to furnish them; the Technical Evaluation Committee in its meeting held on 10.11.2022 declared the petitioner technically qualified.¶5
Prior proceeding
Petitioner had marked 'NIL' in the column for existing commitments, thereby withholding the information; financial bids of successful bidders were opened.¶12
Prior proceeding
Complaints received against the bidders declared L-1 (the petitioner) and L-2 alleging deliberate withholding and submission of false documents as regards value of existing commitments.¶7
Prior proceeding
By letter dated 11.01.2023 the Technical Evaluation Committee informed the Additional Chief Engineer, RWSS Circle, Balasore that the petitioner, Suchitra Construction and Goutam Dwary had not submitted updated value of existing commitment; by further meeting on 12.01.2023 the petitioner, Goutam Dwary and Suchitra Construction, earlier declared technically qualified, were disqualified.¶8
Prior proceeding
Counter affidavit filed on behalf of opposite parties No.1 to 4; rejoinder filed by the petitioner.¶10

Rabindra Rout v. State of Odisha

Case brief

What is this about?

What did the court decide?

Rabindra Rout v. State of Odisha

Case brief

What is this about?

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