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2004 Supreme(Gau) 506
IN THE HIGH COURT OF GAUHATI
P.G. Agarwal, J.
Ribu Bharali and Ors. - Appellants
Vs.
Union of India (UOI) and Ors. - Respondent
WP (C) No. 4281 of 2004
Decided On : 01.09.2004
For Appellant/Petitioner/Plaintiff: B.D. Konwar, Adv.
For Respondents/Defendant: J. Roy, Adv.
The government has the discretion to set the terms of a tender as long as the decision is not arbitrary, discriminatory, or actuated by malice.
Headnote:
Contractors - Government Tender - NEC guidelines - [Pre-qualification for the contractor such as past performance, experience and financial status to be seen before qualifying the contractor for issue of tender for NEC works, State P.W.D. should maintain a Performance Report for the Contractors and issue the tender papers to only those who have a good record of past performance and are not overloaded with works beyond their capacity, Availability of sufficient machinery as per norms is to be ensured by the contractors, NEC work should not be split into small groups and possibility of giving not less than 5 KMs stretch to each contractor should be explored] - The court upheld the government's decision to deal with only Class-1(a) Contractors due to the specialized nature of the contract, considering the amount involved and the NEC guidelines. The decision was found not to be arbitrary, discriminatory, or actuated by malice.
Fact of the Case:
The petitioners, 7 contractors registered under various categories, challenged a tender notice that allowed only Class-1(a) contractors to participate in civil works for Guwahati Medical College Hospital, claiming it eliminated small contractors unfairly.
Finding of the Court:
The court found that the government's decision to restrict the tender to Class-1(a) contractors was justified due to the specialized nature of the work and the value involved, as per NEC guidelines. The petitioners failed to show that the decision was arbitrary, discriminatory, or actuated by malice.
Issues: The main issue was the eligibility of contractors for a government tender, specifically whether the restriction to Class-1(a) contractors was arbitrary, illegal, and unfair, eliminating small contractors unfairly.
Ratio Decidendi: The court held that the government's decision to restrict the tender to Class-1(a) contractors was within its administrative sphere and not open to judicial scrutiny, as long as it was not arbitrary, discriminatory, or actuated by malice.
Final Decision: The writ petition was dismissed, and the government's decision to restrict the tender to Class-1(a) contractors was upheld.
P.G. Agarwal, J.
1. Heard Mr. B.D. Konwar, learned Counsel for the Petitioners and Mr. J. Roy, learned Standing Counsel for the P.W.D., Govt. of Assam.
2. This writ petition has been filed by, as many as, 7 Contractors who are registered under various categories Class-El, Class-H, Class-I, Class-I(b) etc. Under the P.W. Deptt., Govt. of Assam. The case of the Petitioners is that pursuant to sanction by the North Eastern Council, for short NEC, State P.W.D. invited tenders vide notification dated 17.5.2004 in respect of certain civil works pertaining to Guwahati Medical College Hospital, for short GMCH. In the said Notification the Respondent authorities had incorporated a stipulation/clause that Contractors belonging to Class-1(a) shall only be eligible to participate in the said tender. The Petitioners are aggrieved by the said invitation of single bid for undertaking all the repair/innovation works, as a result of which small Contractors have been eliminated. According to the Petitioners, the above action of the Respondent No. 4 is arbitrary, illegal and unfair and the Petitioners have prayed for quashing the said tender notice dated 17.5.2004.
3. The Respondents have filed an affidavit-in-opposition stating inter alia, that the Petitioners have no locus standi to prefer the present writ petition; that out of the 7 writ Petitioners, 3 of the writ Petitioners have not executed any work under the NEC Plan for last 5 years and the others had executed petty works for annual value of around five lakhs, that the tender was floated as per the standard bid system formulated by the Govt. of India and the norms laid down by the NEC as the Project is financed by them. It is stated that the bids are exclusively for Class-1 (a) Contractors only as they have experience, equipment, technology and financial capability to execute the work.
4. The Respondents have also detailed about the total value of the work done in the last 5 years by the Petitioners which is as follows :
Petitioners Total Value of work done in the last 5 years
1. Sri Ribu Bharali Rs. 5,02,808.00 (annual repairing)
2. Sri Ch. Upen Singh Rs. 28,182.00 (annual repairing)
3. Sri Haren Barman Nill
4. Sri Rajani Kalita Nill
5. Sri Sasanka Shekhar Barman Nill
6. Sri Rabindra Kr. Singh Rs. 1,12,239/-
7. Nabaprati Enterprise Rs. 1,94,880/- (annual repairing)
(Ms. Pratibha Talukdar Bharali)
The Respondents have also stated :
Besides the works concerned are not ordinary repair works. These works involve extensive repairing/renovation/strengthening of the distress buildings. There are several examples of accidents resulting in even death of inmates of hostels of GMCH, due to collapse of balconies, parapet walls etc. the P.W.D. had long back declared the hostel No. 4 unfit for habitation and ordered to vacate the same. The conditions of other hostels of GMC are no better….
...the works are very special nature involving extensive rehabilitation and strengthening of distressed buildings. Hence, only specialized contractors having adequate technical ability, sound financial background and also equipped with sophisticated equipments and sophisticated machineries will only be able to carry out the job. Unless some stringent conditions conforming to international standard and norms laid down by the NEC are imposed, there will be very possibility of under specification/below standard works during execution and also there, is all likelihood of costs and time overrun which is more of the major concerns. This may lead to endanger the lives of properties of some 800 old medical students and doctors besides public.
5. The Petitioners have filed an additional affidavit stating, inter alia, that the entire work does not require any specialised skill or ability and the financial condition has been incorporated to oust the Petitioners.
6. Learned Counsel for the Respondent, P.W.D. has produced before us detailed drawings and documents as regards the work which is required to be undertaken. It is also submitt
