Rabindra Rout vs. State Of Odisha

This matter is taken up through Hybrid mode.

The petitioner has filed the present writ petition challenging a letter dated 11.01.2023 issued by opposite party No.2 and also a letter dated 12.01.2023 issued by opposite party No.3, the effect of which is rejection of its technical bid which was initially found to be responsive. The consequential work order, which may be issued in favour of opposite party No.5 or 6, has also been challenged. The petitioner is also seeking, a direction to the opposite parties to settle the tender in question in its favour.

The dispute arises out of a tender Call Notice TCN No.25/2022/23 dated 08.09.2022 where e-tender process was initiated by the Executive Engineer, RWSS Division, Balasore for online bidding in relation for five projects –

The petitioner had submitted his bids for the works as Sl. No.2, 3 and 4. Seven bidders had applied and uploaded their documents including the petitioner. The petitioner was found to be technically qualified and the lowest bidder in respect of the work at Sl.No.5 in relation to - Retrofitting Rural Piped Water Schemes (Clubbed up)

Certain documents were found to be wanting in respect of some of the bidders including the value of all the existing commitment and ongoing works to be completed in next eleven months as per Appendix-1 (1.3 Format). Such bidders including the petitioner were requested to furnish the said documents. The Technical Evaluation Committee in its meeting held on 10.11.2022 declared the petitioner technically qualified.

It is noteworthy that the petitioner had shown ‘NIL’ against the “value of all existing commitments and ongoing work to be completed during next 11 months”. The financial bids were opened of the bidders who were successful in the technical bid including that of the petitioner.

As complaints were received against the bidders who were declared L-1 (the petitioner) and L-2 to the effect that they had deliberately withheld and submitted false documents to mislead the Department as regards the value of their existing commitments. It is noteworthy that the petitioner had shown ‘NIL’ against the “value of all existing commitments and ongoing work to be completed during next 11 months”.

The Technical Evaluation Committee vide its letter dated 11.01.2023 (impugned) communicated to the Additional Chief Engineer, RWSS Circle, Balasore that Suchitra Construction, the petitioner and one Goutam Dwary had not submitted the updated value of existing commitment and tried to hide the facts relating to the existing commitment. Another meeting of the Technical Evaluation Committee was held on 12.01.2023 where the petitioner, Goutam Dwary and Suchitra Construction, who had earlier been declared as technically qualified were declared to be disqualified. This is the background in which the letters dated 11.01.2023 and 12.01.2023 were issued.

Mr. Sameer Kumar Das, learned counsel appearing on behalf of the petitioner has vehemently argued that the terms of Clause- 26.2 of the DTCN lay down the circumstances in which a tender can be rejected. Referring to the said Clause, he has argued that non- submission of existing commitment could not be a ground for rejecting the petitioner’s technical bid. He has further argued that it is true that the petitioner had mentioned ‘NIL’ against the existing commitment. But the same was unintentional and it was a mistake and such mistake was curable. At no time had the petitioner been asked to submit the deficient documents, which could have been done under Clause-26.2 of the tender call notice .Since his bid has been rejected without notice, it should be accepted and work order issued in his favour.

Counter affidavit has filed on behalf of opposite parties No. 1 to 4 and rejoinder filed by the petitioner.

Learned counsel representing the State and opposite party No.5 have argued that the petitioner had deliberately suppressed the material information as regards its existing commitment which is one of the considerations for an effective evaluation of a technical bid. They have submitted that therefore, there is no illegality in rejecting the petitioner’s technical bid, which had initially been found to be responsive.

It is an admitted fact that (after having considered the pleadings on record and the submissions advanced, we noticed that) in terms of the DTCN, the bidders were required to disclose their existing commitments which information the petitioner had admittedly withheld by marking ‘NIL’ in the relevant column. It was only after certain complaints were received and examined that the authorities could know about the petitioner’s existing commitment, for which the petitioner who had been declared to be technically qualified initially was disqualified.

It is the specific case of the State-opposite parties that as per the provisions laid down in Clause-4.6 of the DTCN, only those bidders meet the eligibility criteria if their available bid capacity is more than total bid value. The “value of the existing commitment and ongoing works to be completed during next 11 months” is an important component for determining as to whether the bidders meet the eligibility criteria or not in terms of Clause-4.6 of the DTCN.

Clause 26.2 of the DTCN is extracted hereunder :-

In Clause-26.2, (ii) the list documents which can submitted earlier and subsequently have been given, which includes proof of eligibility and qualification. But in the present case, the petitioner had given incorrect information and mentioned ‘NIL’ in the relevant column and so the question of providing proof of eligibility subsequently does not arise. The petitioner’s contention that the non- submission of the documents/information regarding value of existing commitments is a curable mistake is therefore not acceptable to us.

We do not find any illegality in rejection of the petitioner’s technical bid after the petitioner had been declared as L1 as it was discovered subsequently that the petitioner had existing work commitment but had given wrong information in the bid document by mentioning “ Nil”.

Mr. Das, learned counsel appearing on behalf of the petitioner has submitted that complaints had also been made against the bidders who were declared successful.

We are not making any comment in the present proceeding

As we are of the view that there is no illegality in rejection of the petitioner’s technical bid, we do not find any merit in the writ petition , which are accordingly dismissed.