IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3195 of 2010 M/S NAGARJUNA CONSTRUCTION COMPANY LIMITED AND M/S VIJETA PROJECT & INFRASTRUCTURES LIMITED IN JOINT VENTURE AGREEMENT REPRESENTED BY SRI A.V.L.NARASIMHAM Versus 1. THE STATE OF BIHAR THROUGH, PRINCIPAL SECRETARY, WATER RESOURCE DEPTT., BIHAR AT PATNA 2. ENGINEER-IN-CHIEF(NORTH), WATER RESOURCE DEPTT., BIHAR AT PATNA 3. INTERNAL FINANCIAL ADVISOR, WATER RESOURCE DEPTT., BIHAR AT PATNA 4. CHIEF ENGINEER, WATER RESOURCE DEPTT., BIRPUR ----------- For the petitioner : M/S. Y V Giri, Sr. Advocate and Ajit Kumar Ojha. For the respondents : Mr. P K Shahi, Advocate General and Mr. Vikas Kumar. ----- 03. 12.03.2010 I.A. No.2292 of 2010 has been filed by the petitioner to implead M/S. I V. R. C. L. Infrastructure and Project Pvt. Ltd. as a party respondent as well as for quashing or cancellation of award of contract made in favour of the said Company. I.A. No. 2292 of 2010 is rejected with an observation that if the petitioner is so advised, he may file fresh writ application bringing all the materials in support of the grounds on which such challenge can be made. It is a separate cause of action. It is for the petitioner to decide the future course of action. Initially writ application of the petitioner was filed when his technical bid was rejected and the respondent authorities refused to open the financial bid. The stand of the 2 petitioner is that rejection of technical bid of the petitioner is for extraneous consideration, totally arbitrary decision and malafide in nature. He submits that there are no reasons available for rejection of the technical bid of the petitioner. He had all the eligibility, experiences and requirements which a tenderer had to posses in terms of the notice inviting tender. Based on the submissions made at the bar at the initial stage of admission counsel for the State was directed to file counter affidavit and explain the reason for rejection of the technical bid and non-opening of the financial bid of the petitioner. Learned Advocate General representing the State appeared before the Court, produced the original records as well as filed a detailed counter affidavit on the issue. In the counter affidavit the stand is that there is no wrong doing. The Committee which scrutinized all the tenders of the participants has drawn up a chart and a comparative analysis has been made. In the comparative analysis itself reason has been indicated as to why the petitioner did not qualify for opening his financial bid. In the technical bid it has been pointed out that petitioner did not have the requisite experience for „pitching and boulder‟ work. The experience certificate which has been furnished by him is much below the required 1,16,000 cubic metres as laid down in the notice inviting tender. According to the evidence and material furnished by the petitioner along with bid documents specially the technical bid, 3 this figure has been shown to 29020 cubic metres, which is nowhere the minimum eligibility required for boulder and pitching work experience. Other submissions are there in justification of the rejection of the technical bid. After the counter affidavit was filed on behalf of the State, a detailed supplementary affidavit came to be filed where various other submissions have come to be made not only with regard to the decision of rejection of the technical bid but now also assailing the selection of the qualified tenderer. The Court is not required to go into the issue of award of contract to the successful tenderer in the present writ application because when the writ application was filed initially the issue was confined to the rejection of the technical bid of the petitioner and non service of reasons thereof. If a subsequent development has taken place then it is a separate cause of action altogether and in addition to that the Court must record that the pleadings and the assertions made in this writ application and thereafter the supplementary affidavit does not help the Court in adjudicating the other issues with due fairness. Learned senior counsel representing the petitioner confining himself to the rejection of technical bid submitted that there is provision in the circulars issued by the State itself specially Cl. 22.4 that a tenderer at the stage of technical bid can be given opportunity to explain or remove 4 any infirmity or corrections which are required to be made at the time when technical bid was there for consideration. In the present case, if there was some misgiving in the mind of the tender committee with regard to the nature of work which was carried out by the petitioner he should have been given that chance. The certificate which was filed in support of experience is with regard to carrying boulder and pitching work but for some reason the said certificate of experience was treated as a certificate only showing experience in supply of rough stones for pitching work. The original experience certificate which was furnished by the petitioner along with tender paper came to be clarified by yet another experience certificate carrying the same date as the original certificate. The original certificate of experience has been annexed in the counter affidavit by the respondents as Annexure-F. A plain reading of the experience certificate, specially page 27 of Annexure-F, would show that in terms of description of items and details it only states the quantity of cubic metre of work which was for supply of rough stone for pitching below water level. The second certificate which has been annexed at page 25 of the writ application has a word inserted „construction‟ and supply of rough stone for pitching work. This certificate is also dated 2.1.2010. Contention of the counsel for the petitioner is 5 that if the petitioner supplied this information to the Tender Committee soon after he came to learn that the experience certificate has been treated as experience for supplies and not for construction, this clarification on the original experience certificate ought not to have been ignored and the technical bid of the petitioner should not have been rejected. The stand of the State as indicated by the learned Advocate General is that the technical bid of the petitioner along with others was opened by the Tender Committee. Based on the information as well as the experience certificate furnished by the petitioner it came to a considered opinion that the petitioner did not have the requisite experience for actual pitching and boulder work to the extent of 1,16,000 cubic metres. The experience certificate indicated that the petitioner had experience of such work only to the extent of 29020 cubic metres. The other experience certificate was only with regard to supply of rough stone for pitching. After the Tender Committee had opened the technical bid the petitioner supplied another copy of the experience certificate. This time with additional words added thereto which is “construction and supply”. This according to the learned Advocate General could not be considered in favour of the petitioner after the opening of the technical bid of all the participants. That would amount to giving a leverage to the petitioner and facilitating alteration of his eligibility and experience. 6 Another aspect on a closer scrutiny which emerges is that strangely the original experience certificate filed by the petitioner before the Tender Committee has undergone a change when a second experience certificate was produced. At what point of time the word „construction‟ has come to be inserted in the experience certificate is not understood. The original certificate was issued under the signature of two authorities. The second experience certificate of identical nature carries the certification of only an executive engineer. There are variance in the two identical certificates. Whether the second certificate produced by the petitioner is authentic or a job done or procured to overcome the initial impediment coming in the way of the petitioner cannot be finally certified by this Court but it is well open to the authorities, if they so like, to get into this aspect of the matter. Whatever be the justification made on behalf of the petitioner for producing or procuring the second experience certificate with identical date and identical format with a new addition of word „construction‟ the facts stand that when the tender documents were submitted to the respondents, this significant word was missing from the experience certificate and from the own declaration of the petitioner he did not have the required minimum experience for pitching and boulder work. If the minimum eligibility with regard to 7 experience is not available in favour of the petitioner the Tender Committee committed no wrong in rejecting the technical bid and returning the financial bid of the petitioner. The writ application has no merit. It is dismissed. rkp ( Ajay Kumar Tripathi, J )