IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.7043 OF 2009 RAMSARUP INDUSTRIAL CORPORATIO VERSUS (1) THE STATE OF BIHAR (2) COMMISSIONER,WRD, PATNA (3) ENGINEER IN CHIEF, WRD, PATNA (4) DIRECTOR, PURCHASE, STATE & MASTERIAL MANAGEMENT, WRD (5) DY DIRECTOR WRD AND UIC UDYOG LIMITED, KOLKATA. ----------- 4 09.07.2009. Heard learned counsel for the parties. 2 The petitioner prays for quashing the purchase order issued by respondent 1st set vide purchase order no. 90 dated 17.06.2009 for supply of GI wire of six 8 gauge dia to the respondents 2nd set with respect to tender vide NIT number 3/2009-10 dated 1.5.2009 and for directing the respondent 1st set to give the aforesaid supply order to former as respondent 2nd set did not satisfy the eligibility clause. The petitioner is a registered company. 3 The Water Recourse Department floated an emergency tender being NIT no. 3/2009-10 dated 1.5.2009 for supply of four items including 2703 MT (metric ton) of GI wire of item no.4 in the tender for the purpose of flood fighting and anti erosion activities. Both the petitioner and respondent 2nd set participated in the bid which was opened on 2.6.2009. In the bid, the petitioner’s company was placed as L-2, whereas respondent no.6 was placed as L-1. The price quoted by the respondent no.6 is Rs.50, 100/- per MT and the price quoted by the petitioner is Rs.50, 500/- per MT. As per bid documents the supply was to be made by four weeks. The bidders were required - 2 - to give the break up of week wise supply also. 4 The petitioner submits that while calling the respondent no.6 for negotiation, the department completely ignored his past performance. According to him, it was mandatory for the department in view of clause 21 of the bid document to make evaluation of the bid on the basis of past performance as well as capability to supply in time. In support of contention petitioner relied upon a decision rendered in case of Satyendra Kumar Construction Pvt Limited Vs the State of Bihar and others, reported in 2006(3) PLJR 508. He submits that respondent no.6 in past has failed to supply required material in time. One such delay related to tender no.02/ 2008-09. The department also took panel steps against respondent no.6 for delayed performance. The petitioner submits that the department ought not to have called and considered respondent no.6 for negotiation or in any event could not have allotted the tender. 5 The petitioner also submits that he is willing to make aforesaid supply at the price of Rs. 48,800/ per MT and that within two weeks which would save the government about Rs. 54 Lakhs. He submits that he has already apprised the department that the petitioner is willing to supply at the rate offered by respondent no.6. The petitioner had also brought to the notice of respondents 1st set that respondent 2nd set did not satisfy clause 21 of the terms and conditions of the tender before its execution. Learned counsel further submits that this - 3 - Court in CWJC No. 2028 of 2009 heard analogous with CWJC No. 2033 of 2009 observed that the petitioner was wrongly excluded from the consideration and was wrongly deprived of his right for the tender in question. He submits that this court vide order dated 15.5.2009, passed in CWJC No. 2574 of 2009 directed the Cabinet(Vigilance) Bureau to taken up investigation under Bihar Prevention of Specified Corrupt Practices Act, 1983 and file report in this regard before this Court within three months. He also submits that in order to bestow benefit and favour to respondent no.6 the destination of supply was shortened to Birpur against designed destination Bhim nagar, Nepal making without matching deduction in rate. 6 Counsel for the respondent 2nd set has filed counter affidavit stating that his client was awarded tender work, being the lowest bidder. It immediately deposited the security money of Rs. 42 lakhs within the stipulated time pursuant to purchase order contained in annexure 6 issued on 17.6.2001. It has stated in para 9 that about 516 MT of GI wire has been supplied at the destination point and about 200 MT of GI wire have been loaded on trucks for departure and 200 MT of GI wire are in the process of loading. Furthermore, it would complete the entire supply of 2703 MT within the stipulated time. In reply to the allegation that in the past, respondent 2nd set was not able to supply the tendered material, he submits that latter makes supply - 4 - almost in all 54 divisions and except for one or two occasions on account of unavailability of trucks due to Lok Sabha Election 2009 and reasons beyond control, time schedule has been more or less maintained. He has also filed representation against deduction for aforesaid delay which is pending considerations. He further submits that it cannot be conclusively said that respondent 2nd set was negligent and the delay was solely on account of its inexpertise. He submits that shortening of destination by 2 to 5 kilometers would not entail any advantage when the goods are being carried over a long distance. Nonetheless it does not lie in the mouth of the petitioner to raise the issue of past performance as it has also in past failed to perform its part within time as would appear from annexure F. 7 Learned counsel for the respondent 2nd set relied upon a decision rendered in case of NIIT Ltd versus Bihar State Electronics Development Corporation Ltd & Ors, reported in 2007(3) PLJR 438 in respect of his contention. 8. The case of Satyendra Kumar Construction Pvt. Ltd reported in 2006 PLJR 508 would not be much of help of the petitioner. In the aforesaid case, the petitioner therein had challenged the acceptance of technical bills of respondent no.10 as he was not eligible to participate in tender on account of cause 21 of the notice inviting tender itself. Clause 21 of the NIT specifically stated that the tenderers against whom departmental black listing are going on would not be - 5 - considered for allotment of tender work. Admittedly, a proceeding for black listing was pending against the concerned respondent. In such circumstances, the Court held that the decision to consider the tender of the respondent was illegal being violative of clause 21 of the notice inviting tender. 9. The main issue is whether respondent 2nd set could have been called for negotiation leading to eventual award of tender in view of clause 21 of the bid document or notice inviting tender. Clause 21 of the NIT sets out eligibility criteria, which is quoted here in below:- Clause 21. The evaluation of the bid will be made on the basis of manufacturing capacity, earlier performance, physical stock, capability to supply in time & the past performance of the manufacturing company. 10. The petitioner has referred to one instance of delay in supply by respondent 2nd set which relates to tender no. 02/2008-09. Thus he asserts that past performance is bad and as such respondent no.6 has no capability to supply in time. Thus the latter ought not to have been called for negotiation nor should he have been awarded tender. It would appear from affidavit of respondent 2nd set that it makes supply in all 54 divisions and it has filed representation against deduction in respect of tender no. 02/2008-09 before department which is pending. While evaluating a bid the authorities have to consider various aspects including past performance and capability to supply in time as - 6 - envisaged in clause 21. Mere delay in not performing the contract in time, will itself not be conclusive proof of the fact that a bidder does not have capability to supply in time, if on other occasion he has successfully executed the contract to the satisfaction of respondents. A bidder may fail to execute the contract in time on account of various reasons e.g. inaction on part of authorities or circumstances beyond his control or on account of lack of capability. If a bidder fails to supply on account of lack of capability, it may incur disqualification under clause 21 of the Act. There is no sufficient material on record to conclude that respondent no. 6 has no capability to supply in time. Furthermore, earlier performance cannot be judged on basis of one solitary instance unless it is very glaring. One lonely instance will not berate the credibility or a concern till opinion to the contrary has been arrived by the authorities. Thus I do not find merit in the contention of the petitioner that respondents erred in calling respondent 2nd set for tender and subsequently awarded the contract. 11. So far as the other submission of the petitioner that he is willing to make supply at the rate of Rs.48100/per MT though it may seem attractive cannot be allowed at this stage, as nothing prevented the petitioner from quoting the above rate at the time of bid itself. However, the authorities could be more vigilant and put in extra efforts in negotiation so that the tenders could be awarded at the rate which could be more conducive in the interest of revenue of State. - 7 - 12. As the respondents have already made part supply and they have filed affidavit before this Court that they would supply the full quantity within time schedule, this Court would not like to interfere at this stage, and as such, this writ petition is dismissed. 13. In case respondents 2nd set (respondent no.6) fails to supply or makes delay in supply of materials given in the time schedule, it would be open to the department to take recourse to the penalty clause as delay in prompt performance of such work of immense importance may defeat the very purpose of flood fighting and anti erosion activities. It would be also open to petitioner to raise his grievances before government. Shashi. (S. P. Singh, J.)