S. B. Construction And Co. And Anr vs. State Of West Bengal And Ors.
Facts
The petitioners, S.B. Construction and Co. and its managing partner, submitted a bid for a tender floated by the respondent-Authorities. After submitting their technical bid, the petitioners were asked for clarifications, which they provided. However, by a communication dated September 18, 2023, the respondent-Authorities rejected the petitioners' bid as technically ineligible. The grounds for rejection were primarily the alleged failure to meet technical criteria and discrepancies concerning the PAN number related to a prior debarment and its withdrawal. The petitioners argued they met all technical criteria, including the experience in Interlocking Concrete Block Pavement (ICBP) work, and that the PAN discrepancy was an error by a previous employer. The State and the successful bidder contended that the petitioners lacked sufficient ICBP experience and that the PAN details were inconsistent.
Held
The Court held that the petitioners had indeed fulfilled the technical criteria for the tender. Regarding the first issue, the Court found that the NIT did not make any specific segregation between different components of work, nor did it lay special stress on any particular component like ICBP. The definition of 'work' in Clause 18 of the NIT was broad, encompassing various types of construction, including bituminous surfacing and widening/strengthening of flexible pavement. Clause 3.0(i)(a) required completion of at least one work of similar nature with a magnitude of more than 40% of the estimated amount, which the petitioners' aggregate past work satisfied. The Court found the respondents' attempt to introduce an artificial distinction regarding ICBP work to be 'de hors the NIT' and created merely to suit their purpose. Thus, the rejection on this ground was unsustainable. Concerning the second issue, the Court accepted the petitioners' explanation regarding the PAN discrepancy, stating that the erroneous reference to the managing partner's PAN in a previous debarment order, instead of the firm's PAN, was not a fault of the petitioners and was a minor discrepancy sufficiently explained. The Court found the rejection on the ground of technical ineligibility to be 'palpably de hors the law and perverse'. The Court allowed the writ petition, setting aside the communication rejecting the petitioner's bid and directed the respondents to reopen the tender process from the financial bid stage, deeming the petitioner technically eligible.
Key Issues
1. Whether the petitioners fulfilled the technical criteria for the tender, specifically concerning prior work experience in Interlocking Concrete Block Pavement (ICBP) work, as required by the Notice Inviting Tender (NIT), and if the respondents' interpretation of 'similar nature' work and the required percentage of the estimated amount was legally sustainable. (Question of law and mixed fact and law, turning on Clause 3.0 of the NIT). 2. Whether the discrepancy in the PAN number, relating to a prior debarment and its withdrawal, rendered the petitioners technically ineligible, considering the explanation provided by the petitioners. Petitioner's Arguments: The petitioners contended that they met all technical criteria, including the forty per cent of the estimated amount for previous work, and that the NIT did not segregate experience requirements for specific components like ICBP. They argued that the aggregate value of their past work satisfied the criteria. Regarding the PAN discrepancy, they stated it was an error by a previous employer and that the correct PAN of the firm was used for bidding, and this was a minor issue sufficiently explained. Revenue/State's Arguments: The State argued that the format of the price schedule indicated a specific amount of ICBP work was required, which the petitioners did not meet, as their prior experience was mainly in Bitumen work. They also contended that the PAN disclosed in the affidavit regarding debarment did not match the PAN uploaded during bidding. The successful bidder echoed these arguments, emphasizing the failure to meet experience criteria for individual items as stipulated in the Bill of Quantities (BoQ) and that ICBP work was below par.
Sections Cited
Clause 3.0, Clause 18
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In the High Court at Calcutta Constitutional Writ Juri iction Appellate Side
The Hon’ble Justice Sabyasachi Bhattacharyya
W.P.A. No.23205 OF 2023 + : Mr. Debabrata Saha Roy, Mr. Pingal Bhattacharyya, Mr. Neil Basu, Mr. Rahul Kumar Singh, Mr. Sankha Biswas
For the State
: Mr. Suman Sengupta, Mr. Arindam Mondal, Mr. Sambuddha Dutta, Mr. Sanatan Panja
For the respondent no.4 : Mr. Ramdulal Manna, Mr. Manas Dasgupta, Ms. Manju Manna, Mr. Sayan Mukherjee
Hearing concluded on : 17.11.2023 Judgment on
: 20.11.2023
Sabyasachi Bhattacharyya, J:-
The petitioner no.1 is a registered partnership firm and petitioner no.2 is its managing partner. The petitioner no.1 participated in a tender floated by the respondent-Authorities. However, after submission of technical bid, certain clarifications were sought by the respondent- Authorities from the petitioners to which the petitioners duly replied
2
with clarifications. Upon the petitioners having given such reply, the respond
The judgment continues below.
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