Case: Chhattisgarh State Industrial Development Corporation Ltd  Vs. M/S Amar Infrastructure Ltd

3. Tender was floated by the CSIDC on 3.11.2015 for the aforesaid work within the stipulated time period of 18 months and tenders were invited online, to be submitted by 12.01.2016.4. A writ petition bearing WP(C) No.227 of 2016, was filed challenging the notice inviting tenders issued by the CSIDC and the same was dismissed vide order dated 2.2.2016 by the High Court of Chhattisgarh, Bilaspur. The online bids were submitted. The CSIDC opened the tenders for determining whether the bidders satisfied the pre-qualification criteria. Based upon the information supplied by the bidders, the CSIDC prepared charts of technical evaluation documents in the form of Annexures A B C and D which were signed by the Chief Executive Engineer and placed before the Tender Evaluation Committee in its meeting held on 03.03.2016. The CSIDC filed a Technical Evaluation Sheet as Annexures R-4/3 and 5/3 which was placed before the Technical Evaluation Committee whereas the petitioner in the High Court i.e. M/s. Amar Infrastructure Ltd. filed the document "Annexure P-4" as technical evaluation document.5. It is pertinent to mention here that the documents of technical evaluation filed by CSIDC were signed by the Executive Engineer and the document filed by M/s. Amar Infrastructure Pvt. Ltd. as Annexure P-4 does not bear signatures of any official.6. On 3.3.2016, Tender Evaluation Committee considered the matter and had drawn the minutes which is signed by Mr. S. Rajgire, Executive Engineer Division-IV, Mr. G.V.S.P. Rao, Deputy Manager (Accounts) and Mr. Abdul Shakil, Chief Engineer. Two bidders namely; M/s. Arcons Infrastructure Pvt. Ltd., Chhindwara and M/s. Raipur Construction Pvt. Ltd. were found qualified. It has been opined by the Evaluation Committee that they fulfill all the requisite qualifications. Hence, it was resolved unanimously to open the financial bids of the aforesaid two bidders. The financial bids were ultimately opened on 5.3.2016. The bid submitted by M/s. Raipur Construction Pvt. Ltd. was ranked as L-1 as compared to that of M/s. Arcons Infrastructure Pvt. Ltd. Chhindwara whose bid was ranked as L-2. Ultimately the bid L-1 of M/s. Raipur Construction Pvt. Ltd. had been accepted on 8.7.2016 and work order had been issued by the CSIDC to M/s. Raipur Construction Pvt. Ltd.7. The petitioner/respondent herein, namely, M/s. Amar Infrastructure Ltd. was disqualified on the ground that its construction experience was not found as per the requisite criteria indicated in experience certificate, quantity of DLC (M-10) i.e. 3194 cum submitted under the key activities of construction experience of requisite quantity of work done was not in accordance with the nomenclature of PWD SOR. In the nomenclature of DLC in SOR there was no M-20 type of concrete, as such the amount of DLC as presented in the certificate had been rejected.8. It is pertinent to mention that Writ Petition No.664 of 2016 was filed before the High Court of Chhatisgarh at Bilaspur by M/s. B.B. Verma, who was also one of the unsuccessful bidders, against the CSIDC and others. In the said writ petition, the CSIDC had filed its reply dated 14.3.2016 and had submitted the document dated 3.3.2016 i.e. the chart containing technical evaluation in which the aforesaid facts were mentioned. The writ petition preferred by M/s. B.B. Verma was ultimately dismissed by the High Court of Chhatisgarh vide order dated 15.03.2016.9. However, M/s. Amar Infrastructure Ltd. filed a representation on 1.4.2016 not against the successful bidder but against M/s. Arcons Construction Pvt. Ltd. to the effect that it had been found eligible for opening financial bid despite not having a Hot Mix -Plant. After the writ petition in question was filed on 8.4.2016 in the High Court, reply was filed by the CSIDC on 7.7.2016.10. The High Court, considering the discrepancy in the document of technical evaluation which was filed by the M/s. Amar Infrastructure Limited and the one filed by the CSIDC, had vide order dated 28.07.2016 directed the Superintendent of Police, Raipur to depute an independent and competent officer from the Cyber Crime Cell of the State Police to inspect, examine and analyse the data available on the computer of the CSIDC and to determine the followingWhat was the initial bid document e-filed by Respondent No.6.2. Whether in the tender document submitted by respondent no.6, the list of plant and machinery contained hot mix plant or not? Whether said list was certified by the authorised signatory or not?3. The concerned Officer will after examining the documents also determine whether the document Annexure-P/4 has been prepared on the computer of the CSIDC or not?4. The officer shall also intimate the date of preparation of the document Annexure R4,5/3 filed by the CSIDC and clearly intimate when the document was initially prepared and if any changes were made to this document then on what date. Report be submitted to this Court within a period of 6 weeks from today.Pursuant to the order, the report was filed in the High Court on 9.11.2016. The report submitted by the Cyber Crime Cell is extractedthe compliance of above command, three hard disks were confiscated and tested from the computers of CSIDC by the Cyber Specialist Police headquarters, Raipur and a document was received by the help of chips. After testing following results were obtained:1. Information related to point no.01 is attached in page 115.2. Information related to point no.02 is attached on 115 page and on page no. 57 a list of all documents in e-tender created through respondent no.6 are present which does not contain any mentioning of hot mix plant and in this list a seal of company and signature is used in the place of authorised signatory.3. According to the compliance of information on point no.3 and no.4 a hard disk was confiscated from computer no.3 which has a description as follows:(A) of Hitachi Company S/R no. 0138264JPT3MAOCOA, 30 G.B.(B) of HC Company S/R No. 0A33535BS19570C7A, 164G.B.(C) of Western Digital Company S/R No.WCAYUA915673, 164 G.B.Confiscated Hard disk was tested by Cyber Crime Expert.The information of point no. 03 and 04 of the Test report is as follows:Point No. (3) - Document Annexure P/4 is created on the computer of CSIDC, which is located in the Computers Hitachi Company hard disk whos S/R No. is OA 39264JPT3MAOCOA, 320 G.B. in the file named Annexure -Bb, Last modified Date -06.03.2016. Time :-4.46 P.M. the found file is of 80 K.B. which contain 08 pages. The information related to annexure: P/4 was found in the page nos.6,7,8.The information related to point no. (4) is found in the file Annexure -A Last modified Date : 14.01.2016 Time 12.33 P.M. which was located in the CSIDC hard disk of Hitachi Company whos serial no. is 0A39264JPT3MAOCOA, 320 G.B. According to which document Annexure R-4, 5/3 is presented in respected court which is a "Technical Evaluation" chart and in the column of tender form price in the column no.2 of the tender form, the D.D. number deposited by the companies taking place in tender is clearly mentioned as well the name of the banks are clearly mentioned. But the file obtained from the hard disk "technical evaluation" chart who is named as Annexure R-4, 5/3 contains only the D.D. No and does not contain any bank name, in this way, both files have differences in them.The information related to "Technical Evaluation" Chart Annexure "B" is located in the file named Annexure -B, Last modified Date : 04-07-2016 time-02.08 P.M. which is situated in the Hitachi Company Hard disk whos S/R No. is 0A39264JPT3MAOCOA, 320 G.B. the sixe of the file is 24 K.B. and contains 02k pages. The attachment for Supreme Court and file found in Hard disk have no differences.The information related to "Technical Evaluation" Chart Annexure "C" is located in the file named Annexure -C, Last modified Date: 04.07.2016 time - 02.09 P.M. which is situated in the Hitachi Company Hard disk whos S/R no. is 0A39264JPT3MAOCOA, 320 G.B. the size of the file is 29.7 K.B. and contains 02 pages. The attachment for Supreme Court and file found in Hard disk have no differences.The perusal of Document Test reports (I/pages) and C.D.s as well as chips concluded by the Cyber Celll Specialist is submitted.Attachment : As per above points.The report was filed on 11.11.2016 and the High Court has found that the document which were placed on record; one filed by the CSIDC and other filed by the appellant were substantially different with respect to the fact whether Hot Mix Plant was owned by M/s. Arcons Infrastructure Pvt. Ltd. and also that modification had been made in the document on 4.7.2016. Thus, the High Court had opined that L-2 tenderer basically was not qualified to participate and had been made to qualify for opening of its financial bid in order to give the contract anyhow or somehow to M/s. Raipur Construction Pvt. Ltd. It concluded that M/s. Arcons Infrastructure Pvt. Ltd. was illegally included in the qualified list of bidders by the Technical Evaluation Committee in its meeting dated 3.3.2016, and thus, the contract granted to M/s. Raipur Construction Pvt. Ltd. has been quashed and at the same time further police investigation has been ordered so as to fix the responsibility for the manipulations made in the document filed by the CSIDC and/or by M/s. Amar Infrastructure Ltd.13. Aggrieved thereby the appeals have been preferred in this Court.

Reasoning: 24. It is apparent from the pre-qualification criteria that for acquiring eligibility the intended tenderer has to meet the financial criteria as specified in Clause 2.1, technical criteria as per Clause 2.2(A) and the construction experience in key activities as provided in Clause 2.2 of doing a contract of requisite nature. Clause 2.2(B) required similar construction work should have been completed satisfactorily within five years, costing not less than INR 32.52 crores or two similar works of INR 22.20 crores each and Clause 2.2(C) provided with respect to the construction experience in key activities requirement for the above or other contracts executed during the period stipulated in clause 2.1 above, a minimum construction experience in the key activities as provided in form Schedule D Section I(v) relating to construction experience.Considering the aforesaid various clauses, we are of the considered opinion that both the bidders L-1 and L-2 i.e. M/s. Raipur Construction Pvt. Ltd. and M/s. Arcons Infrastructure Pvt. Ltd. were technically qualified for opening of their financial bids. The opinion expressed by the High Court that L-2 was made to be qualified in spite of the fact that it was not having Hot Mix Plant, thus, cannot be accepted as available ground to disqualify L-2 tenderer. The relevant clauses of the tender document were not placed for consideration before the High Court as mentioned by the High Court and at last moment the Hot Mix Plant inclusion in Schedule D Section V was indicated to it by the disqualified contractor. In our opinion, Hot Mix Plant was not a mandatory requirement so as to open the financial bid. Thus, the financial bids of the two tenderers who succeeded at the pre-qualification stage had been rightly opened and considered. In our opinion, M/s. Raipur Construction was not favoured by qualifying the disqualified tenderer - M/s. Arcons Infrastructure Pvt Ltd to give the contract to it in surreptitious method and manner as observed by the High Court. M/s. Arcons Infrastructure was, in fact, rightly qualified.32. This Court in Tejas Constructions and Infrastructure Pvt. Ltd. v. Municipal Council, Sendhwa and Anr. (2012) 6 SCC 464  has laid down that when the work is 60 per cent complete, Court should be slow to interfere as retendering would delay the project. In the absence of malafide or arbitrariness which is not made out in the instant case as 50 per cent of the work had been completed when the order was passed by the High Court, hence, no interference was warranted in the present case.33. Now, we advert to the question of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference.