Kalinga Warriors Vs State of Odisha

2. The petitioner has questioned the propriety of rejection of bid with respect to Tender No.1551 dated 22.02.2021 floated by the Odisha Water and Sanitation Mission, Bhubaneswar on the ground that the average annual turnover of the petitioner did not exceed Rs.10.00 lakhs, as required in view of clarification issued pursuant to the pre-bid consultation vide Letter No.2243 dated 12.03.2021 by way of invoking provisions of Articles 226 and 227 of the Constitution of India.

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3. Mr. Prabodha Chandra Nayak, learned Advocate submitted that „Key eligibility criteria‟ specified in the Request for Proposal (RFP) vide Tender dated 22.02.2021 though required „annual turnover of at least Rs.4.00 crores for last three financial years, i.e ., 2018-19, 2019-20 and 2020-21” as desired by

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Technical Evaluation Committee, a clarification was published by enhancing such criteria to Rs.10.00 crores. It is urged that the Schedule for Invitation of RFP indicated “publication of pre-bid clarification in the department website” was on “08.03.2021” in the Letter dated 05.05.2021 (Annexure-3) indicating rejection of bid of the petitioner specified such clarification was issued by Letter dated 12.03.2021, which is mentioned as pre-bid clarification. Therefore, it is submitted that this Court is approached by way of writ petition on the plea that the petitioner has complied with average turnover as specified in the “Key Eligibility Criteria” vide RFP. He went on to argue that whereas the petitioner had the turnover of more than Rs.653.00 lakhs visà-vis Rs.4.00 crores required under “Key Eligibility Criteria” as per RFP vide Annexure-1, by way of clarification, the said amount could not have been increased to 10.00 crores in a fiat of pre-bid consultation.

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4. A counter affidavit has come to be filed on behalf of opposite party Nos.2 and 3 wherein a specific stand is taken that Letter No.2243 dated 12.03.2021 (pre-bid clarification) being not assailed in the writ petition, the petitioner is not entitled to any relief in the present writ petition.

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5. Mr. Bibhu Prasad Tripathy, learned Senior Advocate along with Mr. Narayan Barik, learned Advocate appearing for opposite parties No.2 and 3 vehemently submitted that the authority inviting tender vide Clause-12 of the RFP is empowered to issue clarification during the pre-bid conference and upon suggestion it is competent to amend the RFP as deemed necessary; therefore, he strongly refuted the contention of the

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counsel for the petitioner with respect to enhancement of average turnover. He would submit that during pendency of the writ petition the tender process proceeded further; while the technical bid and the financial bid were opened on 25.03.2021 and 07.05.2021 respectively, the opposite party No.4, who was impleaded subsequently after finalization of the tender, has been selected as successful bidder and Letter of Acceptance (LoA) was issued in its favour on 27.05.2021. With respect to the objection raised by the counsel for the petitioner, it is next submitted by Mr. Bibhu Prasad Tripathy, learned Senior Advocate for the opposite party Nos.2 and 3 that the pre-bid clarification was scheduled to be published on 08.03.2021 (as reflected in the RFP), but due to delay in official process, it could be uploaded in the web portal on 12.03.2021. Therefore, he urged not to show any indulgence on trivial issues. 6. Ms. Aishwarya Dash, learned Addl. Standing Counsel supporting the stand of opposite party Nos.2 and 3 submitted that certain allegations like non-payment/deposit of provident fund and disbursement of wages/salary to the employees may not entitle the petitioner to continue with the work and moreso, the opposite party No.4 has already been issued with Letter of Acceptance. She drew attention of the Court to orders dated 17.05.2021 and dated 21.06.2021 passed in the instant writ petition, whereby by virtue of interim orders of status quo the petitioner has been continuing with the assigned work and thereby, no work could be entrusted to the opposite party No.4 despite being selected as successful bidder. She submitted that since opposite party No.4 was selected having more average

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turnover than the petitioner, and met with the requirement of subject-Tender there is no occasion to allow the petitioner to continue with the work any further, particularly when by efflux of time the contractual period of two years as specified in RFP has long since elapsed. She submitted that the opposite party Nos.1 and the opposite party Nos.2 and 3 have filed I.A. No.7013 of 2025 and I.A. No.5285 of 2023 respectively for vacation of interim order with prayers to pass appropriate orders.

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7. Diligently considered the arguments and submissions in reply from the counsels appearing for rival parties. It is not disputed that the contractual period has already been expired and the petitioner has been continuing to supply manpower on the basis of interim order(s) passed by this Court in I.A. No.7431 of 2021. Perusal of I.A. No.7013 of 2025, it is revealed as follows:

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“4. That, it is pertinent to mention here that the validity of earlier contract of M/s. Kalinga Warriors Security Service has expired since 31.05.2021. In spite of expiry of validity of contract period, M/s. Kalinga Warriors Security Service is still continuing to supply manpower on the basis of status quo order dated 21.06.2021 passed in I.A. No.7431/21. Due to continuity of the aforesaid status quo order, although there is need to invite a fresh tender, but the Department is unable to proceed further for inviting fresh tender for supply of manpower in the interest of public service.

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5. That, in the meantime, many complaints have been received from RWSS offices in OMBADC Districts regarding non-payment of remuneration of outsourced personnel's regarding non deposit of EPF dues, unauthorized transfer of outsourced personne’'s without consent of the departmental authorities etc. In this regard, the agency has been called for an explanation but till date no valid explanation has been received from the agency to that effect in spite of lot of persuasions. As per statutory provisions, the principal employer is ultimately liable for the non-deposit of statutory dues. The agency has been repeatedly instructed to submit

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documentary proof of compliance regarding EPF deposits and salary disbursement, which is essential for financial audit purposes and to prevent further legal and financial liabilities on the Department.

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6. That, in view of the aforesaid contractual violations and non-compliance with statutory obligations, the Department decided to withhold the release of payments to the Agency until all statutory and contractual obligations are duly fulfilled in the interest of justice and public accountability. Hence, keeping in view the irregularities and violation of contract and non-deposit of statutory EPF dues of the outsourced personnel, the Department has decided to withhold release of bill of the agency till compliance of the aforesaid requirements. ”

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8. From the above, it is manifest that the petitioner has been continuing beyond the period stipulated in the contract. From the above averments of opposite party No.1, it is revealed that there is requirement of supply of manpower by inviting a fresh tender. Therefore, in consideration of the above, this Court feels it expedient to vacate the interim order and also dispose of the writ petition in view of the position that the contractual period with the petitioner being elapsed by efflux of time. The writ petition, therefore, deserves to be dismissed.

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9. As the manpower requirement cannot be dispensed with and they are to seamlessly perform in an Organisation like Water and Sanitation Mission, necessity, therefore, arises to observe that till new set of outsourced personnel or such personnel, as may be engaged by adopting any other mode at the discretion of such Organisation/Government, undertake the job, they may be allowed to continue. The opposite party Nos.1, 2 and 3 are at liberty to invite a fresh tender as contemplated in para-4 of the I.A. as extracted hereinabove. However, with respect to non-

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payment of remuneration/wages/salaries to the outsourced personnel and non-deposit of EPF dues by the petitioner, the opposite party Nos.1, 2 and 3 may take steps to disburse the amount, as due and admissible to such personnel who have rendered the work, directly (through banking transaction) without involving the petitioner. It is made clear that no equity can be claimed by such outsourced personnel in whose favour the aforesaid amounts are disbursed.

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10. With the aforesaid observations and directions, the writ petition is disposed of along with all pending interlocutory applications.

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(Harish Tandon) Chief Justice

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(M.S. Raman) Judge

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Bichi

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Signature Not Verified

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Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 11-Jul-2025 20:19:11