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2017 Supreme(Gau) 1503
IN THE HIGH COURT OF GAUHATI AT ITANAGAR BENCH
SONGKHUPCHUNG SERTO, J.
G.D. Construction - Petitioner
Versus
State of Arunachal Pradesh and Ors - Respondents
WP(C) No. 527(AP) of 2017
Decided On : 01-12-2017
Advocate Appeared:
For the Petitioner: Mr. Tony Pertin, Mr. Kamal Saxena, Mr. Uttam Bori, Mr. Y. Riram, Mr. R.L. Thungon, Mr. Heli Kato Jamoh and Mr. Mingkong Pertin
For the Respondent: Mr. Kardak Ete, Mr. Subu Tapin, Mr. Kento Jini, Mr. T.T. Tara, Mr. Tamar Gadi, Mr. Duksor Loyi, Mr. Gamken Bam, Mr. J. Jini and Mr. M. Rime
Headnote:
Constitution of India, 1950 - Articles 226 and 141 - Clause 4-4A - Sections 2, 3 and 4 - SARFAESI Act - Sections 13 and 17 - Bidding - Petitioner as submitted by learned counsel for petitioner is that technical bids of private respondent Nos - 5 and 6 should have been rejected by Committee and declared non-responsive as they did not fulfill all terms and conditions of NIT - Therefore Minutes of TBEC which declared four bidders including respondent Nos - 5 and 6 need to be quashed and set aside in respect of respondent Nos - 5 and 6 - In support of his contention submitted that at time of TEC TBEC had announced that technical bids of respondent Nos - 5 and 6 were found non-responsive - But when Minutes of TBEC was notified bids of two respondents were also declared responsive - This according to shows that there was some foul play from very beginning of whole process of selection - Held, It has been strongly pleaded on behalf of petitioner that fraud was committed by respondents in connivance with one another therefore there was mala fide in decision making process - When such plea is made burden for showing or proving same is heavily on petitioner - However in this case petitioner except for showing some minor discrepancies has failed to fully discharge his burden - In fact those minor discrepancies had been cured by submission of hard copies of bidding format as submitted by learned Senior - Advocate General - In this kind of selection process where tenders are invited for public work court would normally not interfere unless mala fide in decision making process as alleged is writ large on face of whole process - I do not see much of a deviation from requirement of standard bidding document which would affect performance of private respondent No - 6 in executing work that would be assigned to him - As for other discrepancies it has been submitted by learned Senior - Advocate General that those discrepancies have been cured when private respondent No - 6 had submitted hard copy of his bidding - Petition is dismissed.
1. Heard Mr. Tony Pertin, learned counsel, appearing on behalf of the writ petitioner.
Also heard Mr. Kardak Ete, learned Senior Addl. Advocate General, Arunachal Pradesh, assisted by Mr. Subu Tapin, learned senior Government advocate, appearing on behalf of the State respondents; as well as Mr. T.T. Tara, learned counsel, appearing on behalf of private respondent No. 6.
2. By filing this petition under article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
(1) to quash and set aside the impugned Minutes of Technical Bid Evaluation Committee (‘TBEC’), to the extent of declaring the technical bids of respondent Nos. 5 and 6, responsive:
(2) to quash and set aside the Chief Executive Officer's letter, dated 22.6.2017, issued under Memo. No. RWD/PMGSY-TAP-XI/2016-17, directing the Executive Engineer and DPIU-II, to issue formal letter of acceptance to private respondent No. 5.
(3) to quash and set aside the CEO's letter, dated 22.6.2017, issued under Memo. No. RWD/PMGSY-TAP-XI/2016-17, directing the EE and DPIU-II, to issue formal letter of acceptance to private respondent No. 6.
(4) to direct the respondents, in particular, respondent No. 3, to proceed the tender process from the stage of technical evaluation, in a free, fair and transparent manner, after declaring the technical bids of private respondent Nos. 5 and 6, non-responsive.
(5) to pass any other order or direction as deemed fit and proper in the facts and circumstances of the case.
3. The facts and circumstances, which led to filing of this writ petition, are as follows:
Pursuant to NIT, dated 28.1.2017, issued by the Executive Engineer & DPIU-II, Damin Division, Siang District, the petitioner, the respondent Nos. 5, 6 and others submitted this technical bid through electronic tendering system for construction of road under PMGSY from Komsing (Kumku) to Sissen village via Komsing(Karo) Pangi village under Package No. AR/04/03/033. As per the NIT, the technical bids were to be opened on 22.2.2017 and the financial bids were to be opened on 27.2.2017. Out of 8 firms, the TBEC found the technical bids of only 4 firms responsive including that of the petitioner and respondent Nos. 5 and 6.
As per the Minutes of the TBEC, the reasons for declaring the technical bids of the 4 firms, non-responsive, are as follows:
(i) M/s. J.J. Enterprises : Technical bid of the Firm has been found non-responsive for the following reasons:
(a) Firm has failed to furnish any experience in similar nature of work.
(b) Furnished insufficient machineries.
(c) Blaster Licence found invalid as per online record.
Hence, the Committee rejects the technical bid under section 2, clause 4.4A(b), 4.4B(i) and 4.7 of Standard Bidding Document (‘SBD’).
(ii) M/s. Rup Kumar Barman: Technical bid is found to be non-responsive due to following reasons:
(a) Bidder has failed to furnish evidence of performing similar nature of work.
(b) Blaster Licence invalid as per online record and NOC from occupier not furnished.
Hence, the Committee rejects the technical bid under section 2, clause 4.2(d), 4.4B(i) and 4.7 of SBD.
(iii) M/s. R.P. Construction : Technical bid found to be non-responsive due to following reasons:
(a) Failed to furnish evidence of access to or availability of credit facility bank certificate.
(b) Failed to furnish affidavit stating that no near relation of the APPWD, RWD, PHED, etc., departmental officer are under his employment.
Hence, the Committee rejects the technical bid under section 2, clause 4.2B(d) and 4.4B(c)(i) of SBD.
(iv) M/s. N.T. Agency: Technical bid found non-responsive due to invalid Blaster Licence (online record) furnished by the bidder.
Hence, the Committee rejects the technical bid under section 2, clause 4.4B(i) and 4.7 of SBD.
4. The Tender Evaluation Committee (‘TEC’), evaluated the financial bids of the 4 technically qualified firms and recommended the name of private respondent No. 5 for allotment of the contract work. Accordingly, the Chief Exe
