Dismissed

M/S K.S. Bhati, Contractor Firm v. State of Rajasthan

Rajasthan HC6 Jun 2023CW/6308/2023

Case brief

AI extract

What is this about?

The Calcutta High Court dismissed a writ petition challenging a tender award where a new bidder obtained the lowest rank. The Court held that interfering at this stage would unsettle the position of the award-winning respondent who had already commenced work, finding no illegality in the procurement process.

What did the court decide?

The petitioner's prayers to quash the tender report, declare the procedure illegal, and award the work order were dismissed.

M/S K.S. Bhati, Contractor Firm Vs State of… — Public Procurement and Tenders | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Writ Petition No. 6308/2023

¶3

M/s K.s. Bhati, Contractor Firm, Through Its Sole Proprietor Keshu Singh Bhati S/o Beju Singh, Aged 64 Years, R/o 80, Rajendra Nagar, Pali (Raj.).

¶4

----Petitioner

¶5

Versus

¶6

State Of Rajasthan, Through The Registrar, Co-Operative Societies, Rajasthan, Nehru Sahkar Bhawan, Bhawani Singh Road, Jaipur.

¶7

The Rajasthan Co-Operative Dairy Federation Limited (Rcdf), Through The Managing Director, Rcdf, Saras Sankul, Jawahar Lal Nehru Marg, Jaipur.

¶8

The Manager, Jodhpur Cattle Feed Plant, Basni Industrial Area, Ii Phase, Jodhpur.

¶9

Sudhanshu Gurjar, The Manager, Jodhpur Cattle Feed Plant, Basni Industrial Area, Ii Phase, Jodhpur.

¶10

M/s Hanuman Singh Rawat, Navdurga Colony, Jawahar Ki Naadi, Behind Hmt, Chandravardai Nagar, Beawar Road, Ajmer.

¶11

----Respondents

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For Petitioner(s) : Mr. R.S. Saluja For Respondent(s) : Mr. Nitin Trivedi Mr. J. Gehlot

¶13

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved on 01/06/2023 Pronounced on 06/06/2023

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This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:

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[CW-6308/2023]

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(2 of 7)

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“It is, therefore, most humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed and by an appropriate writ, order or direction:(I) That the order dated 20.04.2023 (Annx.18) directing petitioner-Firm to discontinue the work of bagging, loading and stacking and diamond (byepass) work from 21.04.2023 may kindly be directed to be treated illegal.

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(II) That the tender summary report dated 20.04.2023 at 6:05 PM (Annx.15) showing respondent No.5 to have obtained L-1 rank, above the petitioner with L-2 rank, may kindly be quashed and set aside.

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(III) That it may be directed, the procedure adopted by the respondent No.4 of issuing shortfall notice so as to award work order in favour of the respondent No.5 may kindly be directed to be treated illegal.

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(IV) That consequent to aforesaid, it may be directed that pursuant to E-bid dated 01.04.2023 (Annx.3) for bagging, loading and stacking and diamond (byepass) work, the work order for the period, for which the E-bid document dated 01.04.2023 is issued, may kindly be directed to be entrusted to petitioner-Firm being the second lowest bidder.

¶23

(V) That the petitioner may also kindly be granted relief in consonance with the facts stated and the grounds taken in the memo of writ petition.

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(VI) Writ petition filed by the petitioner may also kindly be allowed with costs.”

¶25

As per the pleaded facts, the petitioner-Firm is a registered contractor under the GST. The respondent no. 2 – Rajasthan Cooperative Dairy Federation Ltd. (RCDF) issued an E-bid for bagging, loading and stacking work of diamond (bypass) produce on 01.04.2023. Before issuance of the said bid, the petitioner-Firm had an existing contract of the same work order from 16.10.2021

¶26

[CW-6308/2023]

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(3 of 7)

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till 20.04.2023. Subsequently, in pursuance of the above mentioned bid, 7 bidders submitted their documents for technical bid, for which opening date was prescribed to be 12.04.2023. Thereafter, a notice of shortfall, in the documents so submitted for technical bid, was issued to all the bidders except the petitionerFirm. In compliance of the shortfall notice, the remaining bidders submitted the requisite documents. Thereafter, the petitioner-Firm made representations dated 15.04.2023 and 17.04.2023 for grant the bid in question to it.

¶29

2.1. Subsequently however, without providing any response to the aforesaid representations of the petitioner-Firm, financial bid was opened on 20.04.2023 vide the tender summary report, wherein respondent no.5 was shown as the lowest bidder, whereas the petitioner-Firm was shown as second lowest bidder.

¶30

2.2. A notice for demand of justice dated 20.04.2023 via email was thus sent by petitioner-Firm pointing out therein the illegalities committed by respondent no.4 during the course of procurement with regard to the bid in question. On the same date, the official respondent replied to the petitioner-Firm, while referring to the aforesaid representation dated 15.04.2023, that the documents of both M/s Shivraj Singh Firm and the petitioner’s sister Firm-M/s Vedika Construction were found to have certain shortcomings and due to the same, both have been ousted from the bidding process.

¶31

2.3. Vide another letter dated 20.04.2023, the petitioner-Firm was informed by the respondent – Cattle Feed Plant, Jodhpur that respondent no.5 being the lowest bidder, the work order was

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(4 of 7) [CW-6308/2023]

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issued in its favour, and was directed to commence the work from 21.04.2023, and thus, the petitioner-Firm’s existing contract was concluded.

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2.4. Being aggrieved of the tender summary report dated 20.04.2023 and the communication dated 20.04.2023, the petitioner-Firm has preferred the present petition claiming the afore-quoted reliefs.

¶35

Learned counsel for the petitioner-Firm submitted that under Section 14(6) of the Rajasthan Transparency in Public Procurement Act, 2012 ( hereinafter referred to as ‘Act of 2012’ ), the procuring entity is clearly prohibited in adopting a criteria or procedure, other than those mentioned in the bidding document; and as per Clause 7 & 8 of the terms and conditions contained in the bid in question, there was a clear prohibition with regard to supplementing of documents, after opening of the technical bid, by way of calling upon the bidders through shortfall notice.

¶36

3.1. It was further submitted that the manner in which the entire process relating to the bidding in question was done, clearly shows that the sole intention behind the same was to extend undue favour to the respondent no.5 so as to enable him to obtain the work order. In furtherance, it was submitted that PF inspection report of the respondent no.5 was only upto the year 2015-2016, yet the respondent no.4 not only accepted such report, but also acted upon the same, thereby giving work order to the respondent no.5. Thus the same was contrary to the transparency that is to be maintained with regard to awarding of Government Contract.

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(5 of 7) [CW-6308/2023]

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3.2. In support of his submissions, learned counsel placed reliance on the judgments rendered by the Hon’ble Supreme Court in the cases of PSEB & Ors. Vs. Bhatia International Ltd., (2006) 13 SCC 284 and; Goldyan Technoserve Ltd. Vs. State of M.P. & Ors., (2011) 5 SCC 103 .

¶39

On the other hand, learned counsel appearing on behalf of the respondents, while vehemently opposing the aforesaid submissions made on behalf of the petitioner-Firm, raised a preliminary objection that the present petition is not maintainable on count of availability of an alternative remedy of preferring an appeal under the provision of Section 38 of the Act of 2012.

¶40

4.1. It was further submitted that the contract of the petitionerFirm for bagging, loading and stacking work of diamond (bypass) produce came to an end on 20.04.2023, and prior thereto, a new tender had already been issued on 01.04.2023, wherein the respondent no.5 being the lowest bidder was granted the work order and directed to start work from 21.04.2023.

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4.2. It was further submitted that the bidding process was not done in a mala fide manner, as the entire process of bidding in question was conducted after following the due process of law.

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4.3. It was also submitted that the petitioner-Firm in this petition has mixed the two different conditions, while interpreting Clause 8 of the terms and conditions of the E-Bid in question, as if the documents demanded in technical bid were also liable to be uploaded in Excel format, and the same cannot be amended, or any document cannot be uploaded in future; the conditions do not

¶43

[CW-6308/2023]

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(6 of 7)

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contemplate that if any document is not attached, the bid will be liable to be rejected.

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Heard the learned counsel for the parties as well as perused the record of the case.

¶47

This Court observes that the petitioner-Firm is a registered contractor and had an existing contract for bagging, loading and stacking work of diamond (bypass) produce which was concluded on 20.04.2023, and even before the conclusion date, a new tender had been issued on 01.04.2023 for the aforesaid work, whereby vide tender summary report dated 20.04.2023, the respondent no.5 was awarded the work order in question. In furtherance, while replying to the representation preferred by the petitionerFirm, the respondent no.4 informed the petitioner-Firm about awarding the work order to respondent no.5, being the lowest bidder.

¶48

This Court further observes that the respondent no.5, being the lowest bidder, was awarded the work order in question in accordance with the tender summary report dated 20.04.2023.

¶49

This Court also observes that the petitioner was awarded the earlier work order and the respondent no.5 was awarded the work order in question in accordance with the provisions of the Act of 2012.

¶50

It is also observed that the respondent no.5 has already been awarded the work order in question, in accordance, amongst others, with the provisions of the Act of 2012, for the period from 21.04.2023 to 20.04.2024, in pursuance whereof, the necessary works have already been started by respondent no.5. Therefore,

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(7 of 7)

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[CW-6308/2023]

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in the opinion of this Court, if any interference is made at this stage, it would amount to unsettling an already settled position; this is more so when this Court does not find any legal infirmity, illegality or irregularity in the whole process in question as conducted by the official respondents.

¶54

The judgments cited on behalf of the petitioner-Firm also do not render any assistance to its case in the present petition.

¶55

In light of the aforesaid observations made by this Court and looking into the factual matrix of the present case this Court does not find it a fit case so as to grant any relief to the petitioner firm in the present petition.

¶56

Consequently, the present petition is dismissed. All pending applications stand disposed of.

¶57

(DR.PUSHPENDRA SINGH BHATI), J.

¶58

SKant/-

M/S K.S. Bhati, Contractor Firm v. State of Rajasthan

Case brief

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M/S K.S. Bhati, Contractor Firm v. State of Rajasthan

Case brief

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