WP(C) 2623/2011 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY A notice inviting tenders, in two bid system i.e. technical bid and fina ncial bid, for shifting of Assam State Electricity Board (ASEB) line and sub-sta tion including dismantling of existing circuit at different locations under the jurisdiction of SESD, SESD-I, SESD-II, SESD-III & UESD of CAEDCL to facilitate t he construction work of Silchar by-pass road (Package No.NH(Elect)/SIL/2010-11/0 4) with approximate value of Rs.608.22 lakh, was issued by the Chief Engineer, P WD (NH Works), Assam, on behalf of Governor of Assam, pursuant to which 3(three) bidders, namely, Shri Kamal Singh Dugar (writ petitioner), M/S Dutta Electrical s (respondent No.5) and M/S Assam Electricals submitted their bids. The technica l evaluation committee having found the bids of the writ petitioner and the resp ondent No.5 being responsive, the Addl. Chief Engineer, PWD (Electrical), Govt. of Assam, vide communication dated 09.05.2011 informed the writ petitioner and t he respondent No.5 about the same and requested them to attend the office at the time of opening of the financial bids. The writ petitioner has challenged the d ecision of the technical evaluation committee as well as the decision of the res pondent authority as communicated by the aforesaid communication dated 09.05.201 1 to open the financial bid of the respondent No.5, on the ground that the bid o f the said respondent being violative of the instruction to bidders (ITB), layin g down the qualification, the decision to open its financial bid is illegal. 2. I have heard Mr. N. Dutta, learned Sr. counsel for the petitioner, Mr. U . Rajbangshi, learned standing counsel appearing for the respondent Nos.1 and 2 and Mr. D.K. Misra, learned Sr. counsel appearing for the respondent No.5. None appears for the other respondents. 3. Mr. Dutta, learned Sr. counsel for the petitioner referring to the claus es 4.3(g) of the ’qualification of bidders’ and 4.5.3(b) of ’general experience’ as stipulated in the ITB, has submitted that to become technically responsive, a bidder must have experience of completion of similar nature of single work in any single year during last 5(five) years, value of which shall not be less than 40% of the total tender value. According to the learned Sr. counsel the experie nce of the bidders must relate to the completion of similar nature of single wor k in any single year during the last financial year of not less than 40% of the total tender value, as stipulated in clause 4.3(g) and the respondent No.5 havin g not completed the similar nature of single work in any single year, the value of which is 40% of the total tender value, they cannot be held to be technically responsive. It has also been submitted that since the project, which was shown as experience by the respondent No.5, was executed by a joint venture, of which the respondent No.5 was a member, the weightage towards experience of the said r espondent in respect of the said project is to be given in proportion to his par ticipation in the joint venture, which is being 33.33%, it did not have the requ ired experience of executing similar nature of electrical work of the value of a t least 40% of the value of the proposed contract. According to the learned Sr. counsel, the respondent authorities while scrutinizing the technical bid of the respondent No.5, relating to the experience, did not consider the fact of comple tion of the project shown as experience by a joint venture vis-à-vis the respond ent No.5’s proportionate participation in the joint venture. Referring to the pr oceeding of the technical evaluation committee dated 13.04.2011, which is availa ble on record, it has also been submitted by the learned counsel that it is evid ent therefrom that the respondent No.5 do not have the experience in the similar nature of electrical work as required by clauses 4.3(g) and 4.5.3(b), as in the remark column of such evaluation, the technical evaluation committee mentioned that the respondent No.5 though has the experience of augmentation of existing 3 3/11 KV sub-station works, the same was however without construction of HT/LT li ne. The learned counsel submits that the nature of works for which the bids are invited being shifting of ASEB line and sub-station including dismantling of exi sting circuit at different locations, the respondent No.5’s bid cannot be found to be technically responsive. The learned Sr. counsel, therefore, submits that t he decision to open the financial bid of the respondent No.5 is illegal and need s to be interfered with. 4. Mr. Rajbangshi, learned standing counsel appearing for the respondent No s.1 and 2, on the other hand, placing reliance on the materials available on rec ord as produced by him, has submitted that though neither the technical evaluati on committee nor the authority appears to have taken into consideration the prop ortionate participation of the respondent No.5 in the joint venture, which has e xecuted the projects shown as experience, for the purpose of giving weightage to wards experience, so as to determine the percentage of the value of such project , as required by clause 4.5.3(b), the respondent No.5 being the power of attorne y holder of the joint venture, in whose favour the similar contract was awarded by the ASEB and the said respondent having, by virtue of such power, executed th e work, the entire value of the work executed by him is to be treated as his exp erience for the purpose of ascertaining whether he has completed 40% of the tota l value of the proposed contract. According to the learned counsel since the val ue of the work shown as experience is more than 40% of the total value of the pr oposed contract, the respondent No.5 was rightly found to be technically respons ive. It has also been submitted by Mr. Rajbangshi that the nature of work of the project executed by the respondent No.5 as power of attorney holder of joint ve nture, is similar to the nature of work proposed to be executed under the notice inviting tenders, which was executed in a single year. 5. Mr. Misra, learned Sr. counsel appearing for the respondent No.5 submits that the ’qualification of bidders’ as stipulated in clause 4.3 of the ITB are not the essential qualification required to be fulfilled by the bidders, so as t o declare a bid of a bidder technically non-responsive for non-compliance of any of the clauses of 4.3 of the ITB. It has been submitted that in clause 4.5.3 of the ITB, the essential requirements to be fulfilled by the bidders are stipulat ed, which does not require completion of similar nature of single work in a sing le year during last 5(five) years, instead requires the experience in successful ly completing or substantially completing at least one contract of similar natur e electrical work, value of which is at least 40% of the value of proposed contr act, within the last 5(five) years, and not in a single year. The learned Sr. co unsel further submits that in case of a project, shown as experience and execute d by a joint venture, if a member of such joint venture actually executed the wo rk, the entire experience would be credited to him and consequently the entire v alue of such work has to be taken into consideration for the purpose of ascertai ning the 40% of the value of the proposed work towards experience. In the instan t case, according to the learned Sr. counsel, it is not in dispute that by virtu e of the power of attorney executed by the joint venture, the respondent No.5 di d execute the entire work of augmentation of 6(six) existing 33/11 KV sub-statio ns in Assam under the ASEB, value of which being more than 40% of the value of t he proposed contract, the respondent authority has rightly found the bid of resp ondent No.5 technically responsive. Mr. Misra further submits that the technical evaluation committee having found that the respondent No.5 has executed the sim ilar nature of electrical work and as such the bid of the respondent No.5 techni cally responsive, this court in the absence of anything to the contrary may not record a finding that the project which was completed by the respondent No.5, by virtue of the power of attorney, is not of similar nature of the proposed work. The learned Sr. counsel, therefore, submits that no illegality has been committ ed by the respondent authority in finding the bid of the respondent No.5 as tech nically responsive and in deciding to open his financial bid. 6. I have considered the submissions of the learned counsel for the parties and also perused the pleadings as well as the materials available on record as produced by Mr. Rajbangshi, learned standing appearing for the respondent Nos.1 and 2. 7. The Chief Engineer, PWD (N.H. Works), Govt. of Assam on 04.01.2011 invit ed the bids from the intending bidders for the work of shifting of ASEB line and sub-stations including dismantling of existing circuit at different locations, to facilitate the construction work of Silchar by-pass road with the estimated v alue of Rs.608.22 lakh by following two bid system, namely, technical bid and th e financial bid. The financial bids of those bidders, who are found to be techni cally responsive are to be opened. Clause 4 of the ITB stipulates the ’qualifica tion of bidders’. Clause 4.5.3, which relates to the ’general experience’, requi res fulfillment of certain minimum criteria by the bidders. Clause 12.1 of the s aid ITB stipulates the documents to be submitted along with the technical bid of the bidders. Clause 26 of the ITB stipulates the manner of examination of bids and the determination of responsiveness. 8. Clause 4.3 of the ITB stipulates the information and documents which the bidders are required to include with their bids. Sub-clause (g) of clause 4.3 p rovides for submission of information and documents by a bidder in respect of ex perience in works of a similar nature and size for each of the last 5(five) year s and details of works underway or contractually committed. It also stipulates t hat such experience is to be of similar nature of electrical work, in any single year during last 5(five) years, of not less than 40% of the total tender value. The relevant portion of clause 4.3 of the ITB is quoted below:- 4.3 If the Employer has not undertaken pre-qualification of potential bidder s, all bidders shall include the following information and documents with their bids in Section 2. (a) & & & & &. & & & & & &.. & & & & & & & & & & & & &.. & & & & & &.. & & & & & &.. & & & & & &.. (g) Experience in works of a similar nature and size for each of the last fi ve years, and details of works underway or contractually committed; and clients who may be contracted for further information on those contracts; And experience to complete similar nature of single work in any single y ear during last five years not less than 40% of the total tender value. & & & & & & & & & & & & &.. & & & & & &.. & & & & &.. & & & & & & &.. & & & & & & & (p) & & & & &. 9. Clause 4.5.3 stipulates the required ’general experience’ of a bidder. S ub-clause (b) of the said clause provides that the bidder must meet the minimum criteria of experience in successfully completing or substantially completing at least one contract of similar nature electrical works, value of which is at lea st 40% of the value of the proposed contract, within last 5(five) years. It also provides that such work may be executed by the bidder as prime contractor or as a member of joint venture or sub-contractor. In case of a sub-contractor, he sh ould have acquired experience of execution of all major items of works under the proposed contract and in case of the project executed by a joint venture, weigh tage towards experience of the project would be given to each joint venture in p roportion to their participation in the joint venture. Sub-clause (b) of clause 4.5.3 of the ITB is quoted below:- 4.5.3 General Experience: The applicant shall meet the following minimum criteria: (a) & & & & & & & & & & & & & & & & & & & & & (b) Experience in successfully completing or substantially completing at lea st one contract of similar nature electrical works, at least 40% of the value of proposed contract within the last five years. The works may have been executed by the Applicant as prime contractor or as a member of joint venture of sub contractor. As sub contractor, he should ha ve acquired the experience of execution of all major items of works under the pr oposed contract. In case of project has been executed by a joint venture, weight age towards experience of the project would be given to each joint venture in pr oportion to their participation in the joint venture. & & & & & & &. & & & & & & &. & & & & & & & &. 10. Part-C of Section-1 deals with the ’Preparation of Bids’. Clause 12 prov ides the documents to be enclosed with the technical and financial bid. Clause 1 2.1 provides that the technical bid shall comprise qualification information, su pporting documents, certificates, undertakings, affidavits as specified in Secti on 2; any other information pursuant to clause 4.2 of the instruction; undertaki ng that the bid shall remain valid for the period specified in clause 15.1; acce ptance/non-acceptance of Dispute Review Expert proposed in clause 36.1; authorit y to seek reference from the bidders Bankers (clause 4.3.1) and bid security in the form specified in Section 8 (if furnished in the form of bank guarantee). 11. Part-E of the ITB deals with the ’Bid Opening and Evaluation’. Clause 26 of the ITB stipulates how the bids are to be examined and how to determine the responsiveness. Clause 26.1 provides that during the detailed evaluation of the technical bids, the employer will determine whether each bid (a) meets the eligi bility criteria defined in clause 3 and 4; (b) has been properly signed; (c) is accompanied by the required securities and (d) substantially responsive to the r equirement of the bidding documents. 12. It, therefore, appears that while in clause 4.5.3(b), relating to the ge neral experience of the bidder, it has been stipulated that the experience in su ccessfully completing or substantially completing at least one contract of simil ar nature electrical works within last 5(five) years, value of which is at least 40% of the value of the proposed contract, is required, clause 4.3(g) provides for supply of information and documents relating to the experience of completion of similar nature of single work in any single year during the last 5(five) yea rs, value of which is not less than 40% of the total tender value. There is, the refore, difference between clause 4.5.3(b) and clause 4.3(g). Since clause 4.5.3 lays down the minimum requirement to be fulfilled by a bidder, in the matter of experience, the criteria mentioned therein are only required to be fulfilled, t hose being the essential conditions. The stipulation in clause 4.3(g) being rela ting to the information and documents to be supplied, any stipulation therein, w hich is contrary to the minimum requirement specified in clause 4.5.3(b) relatin g to experience cannot be termed as the criteria to be satisfied by the bidders. That being the position, a bidder, in the matter of experience, must have the e xperience in successfully completing or substantially completing at least one co ntract of similar nature electrical works, within the last 5(five) years, value of which is 40% of the value of the proposed contract, as stipulated in sub-clau se (b) of clause 4.5.3 and not the experience of completion of similar nature of single work in any single year during the last 5(five) years, value of which is not less than 40% of the total tender value, as stipulated in sub-clause (g) of clause 4.3 of the ITB. 13. Sub-clause (b) of clause 4.5.3 provides that such work may have been exe cuted by the bidder as prime contractor or as a member of joint venture or sub-c ontractor. It has further been clarified that in case of a project executed by a joint venture, for the purpose of ascertaining the experience of a member of th e joint venture, weightage in proportion to their participation in the joint ven ture is to be given. Hence in case of a project executed by a joint venture, wei ghtage towards the experience of the project in respect of each of the members o f the joint venture would be in proportion to their participation in the joint v enture, meaning thereby their share in such joint venture. There being no ambigu ities and it is being clear from the stipulation in sub-clause (b) of clause 4.5 .3 of the ITB that in case of a project executed by a joint venture, weightage t owards experience of the project would be given to each of the members of the jo int venture in proportion to their participation in the joint venture, there is no scope for giving an interpretation that in case a member of the joint venture , by virtue of the power of attorney executed by the other members of the joint venture, executes the project, 100% weightage towards the experience of the proj ect of that member has to be given, as contended by the learned counsel appearin g for the respondents. 14. This leads to the question as to the weightage to be given towards the e xperience of the project offered by the respondent No.5 as his experience. The r ecords produced by the learned counsel for the respondent Nos.1 and 2 do not rev eal such consideration by the authority while technically evaluating the bid of the respondent No.5, who is admittedly a member of the joint venture and whose p articipation in such joint venture is in equal shares with two other members. Ho wever, it appears from the materials made available on record as well as the pro ceeding of the technical evaluation committee dated 13.04.2011 that the project which was shown as experience by the respondent No.5 worth Rs.430.83 lakh. There being 3(three) members of the joint venture executing the said work, all the 3( three) members will have equal shares and their participation in the joint ventu re being equal, in the absence of anything to the contrary placed on record, the weightage towards the experience of the said project to be given to the respond ent No.5, being a member of the joint venture, would be 33.33% of the value of t he project worth Rs.430.83 lakh, i.e. Rs.143.60 lakh. 15. The requirement of the experience as stipulated in clause 4.5.3(b) of th e ITB being successful completion or substantial completion of one contract of s imilar nature electrical work, value of which must be at least 40% of the propos ed contract value of Rs.608.22 lakh, the respondent No.5 must have the experienc e of successfully executing the work worth Rs.243.29 lakh (40% of Rs.608.22 lakh ). Since the respondent No.5 has the experience of executing the work of only Rs .143.61 lakh, it does not have the required experience as stipulated in sub-clau se (b) of clause 4.5.3 of the ITB and hence the respondent No.5 cannot held to b e technically responsive and his financial bid therefore cannot be opened as dec ided by the respondent authority. 16. As noticed above, the work for which the notice inviting bids issued on 04.01.2011 was for shifting of ASEB line and sub-stations, including dismantling of existing circuit at different locations, to facilitate the construction work of Silchar by-pass road. The project which was executed by a joint venture, of which the respondent No.5 was a member, and which was offered for consideration towards experience, relates to design, engineering, manufacture and testing supp ly erection and commissioning of power transformers with associated switchgears for augmentation of 6(six) nos. existing 33/11 KV sub-stations in Assam. It appe ars from the remark given in the proceeding of the technical evaluation committe e held on 13.04.2011 that the said work executed by the joint venture, of which the respondent No.5 was a member, was without the construction of the HT/LT line . The technical evaluation committee in its report did not specifically state, e xcept the aforesaid remark, whether the work which was executed by the said join t venture is of similar nature electrical works proposed to be contracted for, t hough it was the requirement in the ITB. 17. In view of the aforesaid discussion, the decision of the respondent auth orities in declaring the bid of the respondent No.5 as technically responsive an d in deciding to open its financial bid is contrary to the stipulation in the no tice inviting bids and as such set aside. There being only one bidder remain in the fray i.e. the writ petitioner, it is left open to the respondent authority t o decide as to whether they will proceed to open the financial bid of the lone b idder left out in the fray or to issue a fresh notice inviting bids. 18. The writ petition is accordingly allowed, as indicated above. No costs.