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2016 Supreme(Pat) 1228
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAMESH KR. DATTA, J.
Allied Engineering Works Pvt Ltd. - Petitioner
Versus
The State of Bihar & Ors. - Respondents
Civil Writ Jurisdiction Case No.11552 of 2016
Decided on : 21-09-2016
For the Petitioner:Mr. Gautam Kejriwal with M/s. P.C. Agrawal and Aishwarya Riti, Advocates
For the Respondent:Mr. Upendra Pratap Singh, AC to S.C. 4, Mr. Anand Kr. Ojha, Addl. Standing Counsel, Mr. Anand Kishore Choudhary, Advocate
The central legal point established in the judgment is the interpretation and application of the NIT clauses, particularly Clause 1.1.15, in determining the eligibility of the petitioner and the subsequent decision to quash the rejection of its bid.
Headnote:
Quashing of Decision - NIT - Clause 1.1.15, 4.7, 4.15, 4.15(vii), 4.15(viii) - The court discussed the interpretation of the clauses in the NIT, emphasizing the definition of 'firm' and the registration requirement. It highlighted the legal implications of the clauses and their application to the petitioner's case, ultimately leading to the decision to quash the impugned decision and open the financial bid of the petitioner.
Fact of the Case:
The petitioner sought quashing of the decision by the respondent Company to reject its technical bid and open the financial bid of another bidder. The petitioner argued that it met the eligibility requirements as per the NIT but was unfairly disqualified.
Finding of the Court:
The court found that the petitioner should have been treated as qualified based on the NIT provisions and that the rejection of its bid was unjustified. It also directed the opening of the petitioner's financial bid and instructed the final result of the tender to abide by it.
Issues: The main issue was the interpretation and application of the NIT clauses, particularly Clause 1.1.15, in disqualifying the petitioner's bid.
Ratio Decidendi: The court's decision was based on the interpretation of the NIT clauses, emphasizing the definition of 'firm' and the registration requirement, and concluded that the petitioner should have been considered qualified.
Final Decision: The writ application was allowed, and the impugned decision was quashed. The financial bid of the petitioner was directed to be opened, and the final result of the tender was to abide by it.
Ramesh Kr. Datta, J.
1. Heard learned counsel for the petitioner and learned counsels for the North Bihar Power Distribution Company and for the State.
2. The petitioner seeks quashing of the decision sent by e-mail message dated 21.6.2016 of the respondent Company by which the technical bid of the petitioner has been rejected and also for quashing the letter dated 20.6.2016 by which the financial bid of respondent No.9 has been sought to be opened in spite of being the single bidder which is contrary to the recent amendment in the Bihar Finance Rules and for consequential direction.
3. The petitioner is a joint venture company incorporated in the State of Haryana and a sole partnership firm having its local place of business at Patna. Pursuant to the NIT dated 1.3.2016 issued by the respondent North Bihar Power Distribution Company Limited for the composite work of Supply & Erection work of 4 (Four) Nos. 1x5 MVA 33/11 KV PSS along with associated 33 KV and 11 KV Line on turnkey basis under State Plan Scheme in Supaul and Madhepura districts of North Bihar the petitioner had submitted its tender papers. The last date for opening of the technical bid was 21.4.2016. There were four bidders, including the petitioner.
4. It is the stand of the respondent Power Distribution Company that a large number of queries were made from the petitioner thereafter and ultimately by e-mail message dated 21.6.2016 the petitioner was informed that its technical bid has been rejected for the reason that it was not meeting primary eligibility requirement as per Clause 1.1.15. It was also stated therein that it had not submitted the documents as per terms and conditions of RFP Clauses 4.7, 4.15(vii) and 4.15(viii). Thereafter the technical bid of other bidders was also rejected and ultimately the financial bid of respondent No.9 was opened and he was declared as successful bidder at a rate being 8.5% higher than the estimated rate.
5. Clauses 1.1.15, 4.7, 4.15, 4.15(vii) and 4.15(viii) are quoted below :-
"Clause 1.1.15 - Only firms/companies, Government Owned or Private registered and incorporated in India as per Company Act are permitted to bid. Firms/companies not registered and incorporated in India are not permitted to bid.
Clause 4.7 - LA (Liquid Asset) of bidder/tenderer (single or Joint Venture) should be 10% (ten percent) of estimated value of project.
The tenderer should furnish certificates, guaranteed by their bankers regarding the credit limit allowed to them and also banker's assessment of their solvency not earlier than three months from the date of tender.
In case of bidder being a holding company, MAAT and LA/Credit facility shall be that of holding company only i.e. excluding MAAT and LA/Credit Facility of its subsidiaries. However, in case of bidder being a subsidiary company, MAAT and LA/Credit Facility shall be that of subsidiary company only, i.e. excluding MAAT and LA/Credit Facility of its holding company.
Clause 4.15 - The tenderers shall include the following information and documents with their tenders in the Performa enclosed.
Copies of original documents defining the constitution or legal status, place of registration and principal place of business.
vii. Statement of safety policy and safety statistics for the last five years.
viii. Copy of QA certification and associated documentation."
6. It is submitted by learned counsel for the petitioner that under Clause 1.1.15 it is merely provided, inter alia, that firms which are registered are permitted to bid. It is submitted that "firm" has been taken by the respondents to mean that it refers only to a partnership firm, whereas Vrindaban Construction being a part of joint venture is a sole proprietorship firm. It is urged that the issue of registration of such sole proprietorship firm is not provided by any provision of law and thus any such requirement of registration per se as a proprietorship firm does not arise and the provisions contained in Clause 1.1.15 cannot be applied
