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IN THE HIGH COURT OF GAUHATI
N. Chaudhury, J.
M/s Macrocosm Builders & Anr. - Petitioners
Versus
The State of Assam & Ors. - Respondents
W.P. (C) 1626 of 2016
Decided On : 23-06-2016
For the Petitioners: Mr. M.K. Choudhury, Mr. S.K. Medhi
For the Respondents: Mr. K.N. Choudhury, Mr. G. Rahul, Mr. D. Das, Mr. R. Sensua, Mr. G. Sarma
Headnote:
Constitution of India,1950 - Article 226 - Contract - Documents - Partnership firm - Application Constitution of India, Builders, a partnership firm and its Managing Partner have challenged decision making process in awarding contract of CH - to CH - in District under ASRP package No. ASRP/REH/NCB/15" and preliminary work order made on in favour of Private Limited, respondent No. herein - An E-procurement notice/Invitation for Bids IFB on for as many as works - If that is deducted, it comes to cum which is below bench mark of cum - Writ petitioner was ineligible in the - In FY 2014-15, admittedly writ petitioner did not have required performance and so even if document of basic case of writ petitioner is that it being eligible in terms of tender notice official respondents committed error in eliminating it from fray – Held, Writ petitioner having been described as Associate in its own document submitted along with the tender papers, he cannot be said to have been the prime contractor as required under Clause 1.3.2 of the Qualification Information of the Bid document, the original of which has been furnished by the respondents at the time of hearing. In that view of the matter, the amount of earthwork to the extent of performed by the writ petitioner in the year 2013-14 done as an associate of Divisional Head CEP of Westinghouse Saxby Farmer Ltd. cannot be considered. Consequently, the aforesaid work has to be deducted from the total as shown by the petitioner - If that is deducted, it comes to 41758 cum which is below the bench mark of 45300 cum. In that view of the matter, the writ petitioner was ineligible in the year 2013-14. In the FY 2014-15 - But once it is found on scrutiny on perusal of original tender document of writ petition, that ground of its such elimination is not perverse, remains to be decided in writ petition - When writ petition itself is found to be ineligible, it cannot have a locus standi to maintain writ petition - Accordingly, writ petition stands dismissed - Writ petitioner has failed to point out any irregularity in decision making process and/or any other infirmity - petition stands dismissed
N. Chaudhury, J.
In this application under Article 226 of the Constitution of India, M/s Macrocosm Builders, a partnership firm and its Managing Partner have challenged the decision making process in awarding contract of "Rehabilitation of Bhawanipur Barpeta Road, (SH-8) (CH - 0.00 KM to CH - 18.06 KM) in Barpeta District under ASRP package No. ASRP/REH/NCB/15" and the preliminary work order made on 26.02.2016 in favour of M/s Anupam Nirman Private Limited, the respondent No. 4 herein.
2. Chief Engineer, PWD (ARIASP & RIDF), Assam issued an E-procurement notice/Invitation for Bids (IFB) on 13.01.2016 for as many as 5 works. It includes the aforesaid contract of rehabilitation of Bhawanipur Barpeta Road. The approximate value of the work was quoted at Rs. 33,95,00,000/- and period of completion was fixed at 18 months. The IFB required payment of Bid Security of Rs. 6.8 Million. Pursuant to the aforesaid IFB, writ petitioner herein submitted tender annexing required documents and so did the respondent No. 4 along with others. The official respondents thereafter by notification dated 25.02.2016 recommended the name of the respondent No. 4 for awarding the contract. In the aforesaid notification dated 25.02.2016 one M/s P.K. & Co. was shown to be the lowest bidder and the present writ petitioner was shown as the second lowest bidder but as the contract was recommended for awarding in favour of M/s Anupam Nirman Pvt. Ltd., the respondent No. 4 herein which is only the third lowest bidder, the present writ petitioner has approached this court by filing this writ petition and challenging the recommendation as well as preliminary work order dated 26.02.2016. Both the notifications dated 25.02.2016 and 26.02.2016 are annexed to the writ petition. When the writ petition was moved on 08.03.2016, the respondent No. 4 had already appeared by filing caveat and it was pointed out to the Court at the time of motion hearing that the work had already been started. In that view of the matter, this court was of the view that it is not a fit case for granting any interim order. Be that as it may, the official respondents as well as private respondent No. 4 submitted their affidavits-in-opposition. By filing the affidavit-in-opposition, the official respondents disclosed that writ petition was found to be disqualified in terms of Clause 4.5A(c) of the terms of the contract and accordingly though he was the second lowest bidder yet he could not be recommended for settlement of the contract. Same was the case for the lowest bidder who was found disqualified under Clause 4.5 A(a). The first lowest bidder did not challenge the decision of the Government but it is the second lowest bidder, who as the present writ petitioner, has come to this court asking for lifting the veil to find out as to whether there was arbitrariness on the part of the official respondents in distribution of State largesse. Once it was disclosed in the affidavit-in-opposition that the writ petitioner was ineligible in terms of Clause 4.5A(c), the writ petitioner filed an additional affidavit and thereby challenged the very ground quoted in the affidavit-in-opposition filed by the official respondents without, however, amending the writ petition.
3. In the additional affidavit, the writ petitioner has annexed the Bid Evaluation Report prepared by the Bid Evaluation Committee and made reference to Clause 4.5 thereof. According to the writ petitioner, the official respondents took into consideration performance of the writ petitioner in only one year forgetting that as per the relevant clause of the Bid document if a contractor is found to be eligible in any of the 5 preceding years in that event, he becomes eligible for settlement of contract.
4. I have heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. SK Medhi for the petitioners, Mr. K.N. Choudh
