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SUPREME COURT OF INDIA
R.F. Nariman, Navin Sinha, JJ.
M/s Sam Built Well Pvt. Ltd. – Appellant
Versus
Deepak Builders & Ors. – Respondents
Civil Appeal No. 21858 OF 2017 (Arising out of Special Leave Petition (Civil) No.22055 of 2017)
Decided On : 14-12-2017
Facts of the case:
By a notice inviting tenders (NIT) dated 16th March, 2017 the director of the Institute of Nano Science and Technology, Mohali, invited percentage rate composite bids from eligible firms/contractors in a two bid system for construction of the Institute of Nano Science and Technology Campus at Knowledge City, Sector 81, Mohali, consisting of research, academic and administrative buildings together with hostel, residential, amenity and utility buildings. The estimated cost of the said project was Rs.162.18 crores, with earnest money payable being Rs.1.72 crores. The period of completion was stated to be 20 months and the last date for submission of tender was 10th April, 2017.
A technical evaluation report stated that the eligibility criteria contained in Clause 8 of the NIT was not met by Respondent No.1. Respondent No.2 then addressed a letter to Respondent No.1 informing it about its ineligibility.
Respondent No.1 filed a Writ Petition which was dismissed by the Single Judge.
However, by the impugned judgment the Division Bench of the High Court allowed the appeal of Respondent No.1. The appeal was then disposed of by directing Respondent No. 2 to consider Respondent No.1’s bid, along with other eligible bids, and award the contract after assessing the bids on all permissible criteria.
Pursuant to the said judgment the tender was ultimately awarded to Respondent No.1.
Finding of the Court:
Division Bench of the High Court went beyond its jurisdiction.
Result: Appeal allowed. Award of tender to appellant restored.
JUDGMENT
R.F. Nariman, J.
1. Leave granted.
2. The present appeal involves a notice inviting tenders (NIT) dated 16th March, 2017 by which the director of the Institute of Nano Science and Technology, Mohali, invited percentage rate composite bids from eligible firms/contractors in a two bid system for construction of the Institute of Nano Science and Technology Campus at Knowledge City, Sector 81, Mohali, consisting of research, academic and administrative buildings together with hostel, residential, amenity and utility buildings. The estimated cost of the said project was Rs.162.18 crores, with earnest money payable being Rs.1.72 crores. The period of completion was stated to be 20 months and the last date for submission of tender was 10th April, 2017. Clause 8 of the said NIT is important and states as under:
“8. Contractors/bidders who fulfill the following minimum criteria shall be eligible to apply. Joint ventures/consortium are not accepted.
(a) Should have satisfactorily completed the works as mentioned below during the last date
of submission of bids.
(i) Three similar completed works each costing not less than Rs.64.9 crores, or
(ii) Two similar completed works each costing not less than Rs.97.3 crores,
(iii) One similar completed work of aggregate cost not less than Rs.129.7 crores.
Similar work shall mean work of “construction of institutional/educational buildings campus with minimum five storeys RCC framed structure building including electrical, plumbing, fire fighting, HVAC works under composite contract executed in India in a single contract.”
3. Several persons submitted their bids, including Respondent No.1, who claimed that it had done “similar work” as follows:
| Sr. No. | Name of work | Completion date | Current cost after addition of 7% per annum | Remarks |
| 1. | Construction of District Administrative complex at Sector-76, SAS Nagar, Mohali | 31.03.2016 | Rs. 97.76 Cr. Current enhanced value as per clause 2.2.4 Rs. 97.76 cr x 107% = Rs.104.60 Cr. | It has basement plus 5 storeys RCC framed structure |
| 2. | Construction of Office Building of Punjab Mandi Board, Phase-11, SA Nagar, Mohali | 05.10.2011 | Rs.62.65 cr. Current enhanced value as per clause 2.2.4 Rs. 62.25cr x 114% =70.96cr. | It has basement plus six storeys RCC framed structure |
| 3. | Construction of Jang-e- Azadi Memorial Project at Kartarpur, Jalandhar (Phase-1) | 16.03.2015 | Rs.172.32 cr | It has height of 42 meters i.e. more than 8 storeys RCC framed structure |
| 4. | Construction of Judicial Court Complex at Sector 76, SAS Nagar, Mohali | 23.12.2015: 14 courts out of 25 courts were inaugurated on 23rd Dec., 2015 and are functioning from the building. Work of Phase 2 for remaining courts in progress. | Work of Phase 2 for remaining courts in progress. Work of Rs. 75.28 cr. was completed upto 31.03.2017 and balance work in progress | It has basement plus 5 storeys RCC framed structure |
| 5. | Total Value | Rs.423.16 Cr. |
4. Pre-bid meetings were conducted in March, 2017 and ultimately Respondent No.1 submitted its tender on 7th April, 2017. 5 out of 16 bidders, who initially came forward, participated in the tender process. Admittedly, a technical evaluation report dated 24th April, 2017 stated that the eligibility criteria contained in Clause 8 of the NIT was not met by Respondent No.1. This was reiterated by two other expert bodies, namely, Tata Consultancy Services and the Building Works Committee of the Institute. Respondent No.2 then addressed a letter to Respondent No.1 informing it about its ineligibility. On 3rd May, 2017, Respondent No.1 filed a Writ Petition which was dismissed by the learned Single Judge stating that “similar work”, which requires to be considered under Clause 8 of the NI
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