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2019 Supreme(Del) 112
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. RAVINDRA BHAT, PRATEEK JALAN, JJ.
RAMA CONSTRUCTION CO. - Petitioner
Versus
CENTRAL PUBLIC WORK DEPARTMENT & ANR. - Respondents
W.P.(C) 7813 of 2017 & CM Appl. 32228 of 2017
Decided On : 09-01-2019
For the Petitioner:Mr. Sudhir Nandrajog, Sr. Advocate with Mr. Avinash Trivedi & Ms. Ritika Trivedi, Advocates.
For the Respondents:Mr. Sarat Chandra, Advocate, Mr. Rishi Kapoor & Mr. Satish Rai, Advocates.
The central legal point established in the judgment is the limited scope of judicial review in matters of award of public contracts and the preference for the interpretation of tender conditions by the tendering agency.
Headnote:
Tender Rejection - Construction Works - CPWD Manual, 2014, Rule 123 of General Financial Rules, 2005 - [1.3.1, Rule 123] - The court discussed the interpretation of tender conditions in light of the CPWD Manual and General Financial Rules, emphasizing the limited scope of judicial review in matters of award of public contracts. The petitioner's argument to disregard CPWD's construction of tender conditions in favor of the interpretation given by the CPWD Manual was not accepted, as the tender conditions were fashioned in a particular manner having regard to the requirements of the tendering agency.
Fact of the Case:
The petitioner's tender for construction works was rejected on the ground of non-compliance with technical conditions, specifically related to the specification of 'similar works'. The petitioner claimed to have fulfilled the technical criteria by submitting certificates from NBCC and DMRC, but the respondent rejected the bid on the grounds that the works completed were 'balance works' and did not fulfill the eligibility criteria.
Finding of the Court:
The court found that the interpretation of tender conditions by the CPWD, in the light of the CPWD Manual, was preferred and the petitioner's argument to disregard CPWD's construction of tender conditions was not accepted. The court also concluded that the petitioner did not complete the required works as per the tender conditions, and therefore, dismissed the petition.
Issues: The issues revolved around the interpretation of tender conditions in light of the CPWD Manual and the General Financial Rules, 2005, and whether the petitioner fulfilled the technical criteria for the construction works.
Ratio Decidendi: The court emphasized the limited scope of judicial review in matters of award of public contracts and held that the interpretation of tender conditions by the tendering agency, CPWD, was to be preferred. It also concluded that the petitioner did not complete the required works as per the tender conditions.
Final Decision: The petition was dismissed by the court.
S. RAVINDRA BHAT, J.
1. The petitioner is aggrieved by the rejection of its tender for certain works i.e. Redevelopment of General Pool Residential Colony at Mohammadpur, New Delhi – construction of 400 nos. Type-II and 345 nos. Type-III General Pool Residential Accommodation (GPRA) on EPC basis.
2. It is not disputed that in terms of the NIT the petitioner fulfilled the financial eligibility criteria. Its bid, however, was rejected on the ground that it did not comply with the technical conditions i.e. with respect to the specification of “similar works”. The petitioner relied upon the qualifying criteria of having completed three similar works each of value not less than Rs.11,240 lakhs. The corresponding technical criteria stipulated in the NIT was as follows :
“Similar work shall mean :
(A) Construction of RCC buildings with Ground + Seven upper stories (or building of 26-meter height) including internal water supply, sanitary installations, drainage and internal electrical installations executed under one agreement (Mumty and Machine Room will not be counted as storey/height for this purpose, if Ground Floor is stilt, it will be counted as storey), and
(B) At least one completed similar work should have minimum one basement.”
3. The petitioner claims that in support of its position of having fulfilled the technical criteria, it submitted three certificates – two issued by the National Buildings Construction Corporation Limited (NBCC) and the third issued by the Delhi Metro Rail Corporation (DMRC). There is no dispute about the fact that certificate issued by the DMRC is deemed to be compliant with the technical specifications extracted above. What is in dispute is however, with respect to the petitioner’s claim of having completed “similar works” for which it relied upon NBCC’s certificates for two projects – one in Sector 89, Gurgaon, and the other in Sector-37D, Gurgaon.
4. With respect to the Sector-89, Gurgaon project, NBCC initially issued a certificate dated 11.05.2016, certifying the work done of a value of Rs.110.50 crores. The work was discussed therein as follows :
“The work consists of 10 no's towers, Shopping Centre, tank, Electrical Substation, school, swimming pool w community centre. The scope of work also involves sanitary work, water supply work, internal electrification, Conditioning arrangement, water proofing with APP membrane, solar heating system, S.S garbage chute works, complete development work with roads.”
5. With respect to Sector-37D, Gurgaon project, NBCC’s original certificate dated 03.03.2017 certified gross amount of work done at Rs.194.87 crores and described the work thus :
“The work consists of 7 no’s towers, Shopping Centre, U.G. tank, Electrical Substation, school, swimming pool with community. The scope of work also involves sanitary work, water supply work, thermal electrification, Air conditioning arrangement works (MEP), waterproofing with APP membrane, solar heating system, and complete development work with roads.”
6. Upon clarification being sought by CPWD with respect to the first work, i.e. the construction of the building “NBCC Heights, Sector-89, Gurgaon” on 15.06.2017 NBCC clarified as follows :
“1. The Tender was for the balance work left out by previous agency.
2. (a) The Previous agency has not completed any tower/building/ancillary buildings amenities/ services etc.
(b) The previous agency completed partly only RCC works of ten towers with three storey’s (min.)
(c) Balance buildings and works which were not started by previous agency such as EWS 2 no's (with max G+4 height), Electrical Substation (basement), U.G tank (basement), Nursery school 1 no's (G+2), Shopping Complex (G), swimming pool with community Centre (G), Guard Room 1 no's (G), meter room, with foundation work, brickwork, plastering, Painting, woodwork, aluminum work; Internal electrification, waterproofing, flooring, air conditioning arrangement (MEP), solar water heating system, garbage chute, external develo
