\0- 11^^ HiGH COURT OF CHHATTISGARH AT BiLASPUR D.B. HON'BLE SHRJ DHiRENDRA MSSHRA. & HOIM'BLE SHRI RM. CHANDRAKAR.JJ Petitioner Versus Respondents 1. 2. 3. 4. 5. W,PJc)No, 6999 of 2009 M/s Tirupati Buil-Con Pvt. Ltd. A company du!y registered under the provisjons of Companjes Act, having Its registered office at Burhar, District Shahdoi, Madhya Pradesh Through the Director. Unlon of Sndia, through the Secretary, Ministry of Road Transport and Highways, Shastri Bhawan, New Delhi. State of Chhattisgarh, through the Secretary, PubJJc Works Department, DKS Bhawan, Mantraiaya, Raipur, Chhattisgarh. Engineer-ln-Chief, Publte Works Department, Sirpur Bhawan, Raipur, Chhattisgarh. Chief Engineer, Public Works Depa.rtment, Sirpur Bhav</an, Raipur, Chhattisgarh. Superintending Engineer/Ministry of Road Transport and Highways, 1 Fioor, D-Wing, Satpura Bhawan, Bhopai, Madhya Pradesh, Present: Shri Ashish Shrivastava, counsel for the petitloner Smt. Fouzia Mlrza, Assistant Soiicitor Genera! of India for rsspondents No.1 &5/UOI. Shri V.V.S. Murthy, Dy. Advocate Genera! forthe State/respondents No. 2 to 4.. ORAL ORDER (2"dFebruary,2010) PerDhfrendra Mlshra. J With the consent ofthe parties, the matter is finaily heard, 2, This petition is directed against the order of Annexure P/1 passed by respondent No.4 whereby the tender submltted by the petitioner has been rejected for non-compllance of the terms and conditions of the tender document. 3. Briefiy stated, facts of the case are that the petitioner in response to Notice Invjtlng Tender (in short <SN!TI) Issued by the respondents submitted his bld for the said work as per terms and conditlons of the /c% '\ if ^-ms^ 1 ^SSfc. I ^ \P'T~ .2 &' NIT... The financial bids were to be submitted oniine, whereas' technicai bids were to be submitted In the Standard Bidding Document (In short "SBD") through post to respondent No.2. The petitioner's technicai bid was recelved by the respondents on 8.9.2009. The contractors were required to compSy with the condlttons mentioned in CSause 4.5 of the Snstryctions to Bidders, which atso provided that the contractor shouid demonstrate avallability (either owned or $eased or by procurentent agalnst mobilization advances) of the criticai equlpment shown Sn Annexure - 1, apart from an undertaking that the bid shal! remaJn vaiid for a perlod specified in CIause 15.1 of the SBD i.e. not tess than 120 days after the deadSine date for bsd submlssion specified in Cjause 20. Apart from the petitioner, four other contractors participated in the tender process. After openlng the enveiopes of technical bid of all the particlpants, respondent No.4 declared the petitioner Jne!«gjbie and returned his originai bank guarantee on the ground that (1) he is not owner of key pjant and equipment Bitumen Sprayer and Mini concrete bateh mix pjant, and (II) he has not fumished undertaking that hls offer wouid be vaiid for a period of 120 days vide Annexure P/1. ShrS Ashish Shrivasteva, learned counsel for the petitioner submits that the petitioner had submitted hjs technica! bid In the prescribsd proforma with a bid security (bank guarantee) jssued by Punjab Nationai Bank for a sum of Rs.1S.S5 !acs vaiid up to 28th February, 2010 wlth requisite declaration as provlcied in the proforma vide Annexure P/3. Referring to Condltlon No.4.5, Ciause B of the SBD, it is argued that the bidder should demonstrate avalSablllty (either owned or leased or by procurement against mobjlizatlon advances) of the critical equJpment for the work shown in Annexure -1. There is no requirement that the tenderer shouid specifically own equipment and machineries requlred for execytion of the work» However, he was declared jneliglbJe on the technical ground that he did not fumish undertakJng as reqyired under Ciause 12.1(vVCiause 15.1 ofthe SBD and further on the ground that he does not own the necessary equipments mentloned in Annexure-1. jt Is further argued that the respondente have decSared the petitioner ineligibJe on hyper-technical ground without considering the object and purpose of the said tender, Ignoring Clause 23 of the SBD, whlch caste a duty upon the respondents to cali for any ctanfication from the participants in case they found any rectifiable defect in the technical bld. The declsion was taken by the respondents on the basis of alleged .i .' 7. 8. scrutiny by the competent authority vide Annexure R/1 without considering the Memo of Annexures P/6 & P/7, whereby respondent No.4 was requested to ask for further requisite clariftcation from all the bidders so that the work can be awarded on competitive biddlng and rates. On the other hand, Searned counse! for respondents No. 2 to 4 submits that as per CIause 12.1(v) of the S8D, technical bid of the tenderer should comprise of an undertaking that the bid shail remajn vaild for the perlod specified In Ciause 15.1, according to which the bid Is to remain va!id for a period not Sess than 120 days after the deadiine date for bld submission. Apart from the petstioner, four other contractors submitted their bids, their technica! bids were scrutinized by the competent authority vide Annexure R/1 and as per scrutiny by the competent authority, except M/s AniS Construction, none of the offers of the other tenderers was as per requirement. The report of the Evaluation Conimittee was submitted for perusal of respondent No.5, who, in tum, asked the Superintending Engineer, Nationa! Highways to seek further clarification from ail the bidders, which was suitebly replied to and respondent No.5 was requested to consider the technical evaluation of the competent authorlty vide Annexures R/2 & R/3. Clause 15.1 clearly stipulates that a bid valid for shorter period than 120 days shalt be rejected by the employer as non-responsive. Clause 26.1 provides for detailed evaiuation ofthe technical bids bythe employer, Smt. Fouzia IVIirza, ieamed Assistant Soiicitor General of India appearing for the Union of India/respondents No. 1 & 5, submits that technical evaluation of the bids for the work costing betvyeen five crores to fifteen crores is to be done by a committee headed by a Chief Engineer (National Highways) of the State Government. Respondent No. 1 is not InvoEved in technica! evaluatjon, though respondent No.5 i.e. ReglonaS Officer is member of the Technical Eva!uation Committee; he has not glven his consent to the evaiuation of the technicat bid done by the Public Works Department (in short "PWD"), Chhattisgarh and he had requested the PWD to ask for further ctarification from the bidders so that the work can be awarded on a competitive bidding and rates. We have heard learned counsei for the partles. From perusal of the evaluation report of Annexure R/1, it appears that on openlng of the technlcal bids of all the tenderers, the other four tenderers were found to be ineiigibie, except M/s Anil Construction. On examinjng the technical bids submitted by the petjtjoner and another tenderer IV!/s Shri Krishna & Co., they were held to be JneligibJe only on the ground that they did not have necessary toois T & P like Bitumen Sprayer, Mlni concrete bateh mix pfant and Dozer, and also that they did not furnish undertaklng of vaEidlty offer for 120 days, The said report js stgned oniy by two members of the said committee and the same was forwarded to the Superintending Engineer (MORTH), BhopaS, who dld not agree with the recommendations and in turn requested the respondents to seek further ciarification from the other tenderers regarding the shortcomings notlced in thelr technical bids< , ' . 9« Clause 12,1 (v) read with Ciause 15,1 of the SBD envisages that the blds submitted by the tenderers shall be valld for a period not iess than 120 days after the dead!ine date for bid submission specified in Clause 20. it fyrther provides that a bid vaSJd for a shorter period shali be rejected by the employer as non-responslve. 10. in the instant case, uncilsputedEy, the petitloner submitted bank guarantee (Annexure P/3) towards bid security, which is valid up to 28th February, 2010. The aforesaid bank guarantee was annexed with duly fjjied in tender proforma, whlch dearly stjpuiates that the bld security shalj be vaiid for 45 days beyond the validity of the bid, Thus, from the bid security submJtted by the petitioner, It is ctear that his bid was not valld for iess than the period prescribed under Ciause 15.1 of the SBD. So far as the other ground that the petitioner is not owner of necessary plant and machlnery, Bitumen Sprayer and Mini concrete bateh mix plant is concerned, the same is also not a pre-requlrement as Is evident from CSause 4.5 B(a), which only mandates that the tenderer, apart from fujfiijing other conditions, shouid further demonstrate availabliity (etther owned or ieased or by procurement against moblllzation advances) of the key and critlcal equipment mentioned in Annexure -1 . 11.. Chapter-E deaSs wlth bid opentng and evaiuatlon. CSause 23 under this Chapter deals with bid opening. Ciause 23.3 provides that the enveiope containing 'TechnlcaJ Bldst shaSI be opened, It further provides that If the bid security fumlshed does not conform to the amount and validity period as specified In the Invitatlon for Bid and has not been furnlshed in the form spedfied in Clause 16, the rematning technicai bld and the seaied flnancla! bid wiil be returned to the bidder. Clause 23,4(11) provides f^\ ^-^ after recelpt of confirmatlon of the bld security, the bidder will be asked in wrltlng (usua-lly withln 10 days of openlng of the Technlcal Bid) to ciarify or modlfy hls technica! bid, if necessary, wlth respect to any rectifiable defects, 12, !n the present case, as already obsen/ed, the amount, form and valldlty of the bld security furnished by the petltloner was valid for the period in NIT and therefore, the technlcal bid couJd not be'rejected ynder Clause 23,3. The respondents couEd seek a clarifjcatjon from the petjtloner with respect to other defects s,e. non-avajlabitity of Bitumen Sprayer and Minl concrete batch mix piant. It is highiy surprising that the respondents instead of accedlng to the request of respondent No5 to seek further clariflcatjon from the tenderers with respect to the shortcomSngs polnted out In the evaiuatlon report, have decided to return the bank guarantee furnished by the petltloner by treatlng hlm ineiiglble to participate. The aforesaid decisjon of the respondente is not only contrary to the relevant clauses of the S3D as quoted above, but It is agalnst the interest of the empioyer as by rejecting the offers of other four bidders on hyper technicai ground wlthout seeking further cianfjcatjon as provided under Clause 23,4(ii) of the SBD, the very purpose of jnyjtlng tender and bldding on- competitlve rates is Sost, whlch is agatnst the public interest. 13. For the aforesald reasons, we are of the opinlon that the order 'of Annexure P/1 cannot be sustained and the same deserves to be set aside. 14. in the resylt, the petitlon Is aiiowed. Order of Annexure P/1 is set aside. The respondents are directed to proceed as per Ciause 23.4(ti) of the SBD and seek necessary clariflcation In writing to cSarify or modify their technical bsds with respect to any rectifiabSe defects before fsnailzing the award of contract, _—-——— Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^\