The authority of the tendering agency to interpret tender documents and the need to balance attracting competent contractors with nurturing small contractors.

JUDGMENT :

Heard Mr. K.N. Choudhury, the learned Senior counsel appearing on behalf of the Petitioners in WP(C) No.206/2023 and WP(C) No.247/2023. I have heard Mr. A. Zho, the learned counsel who also represents the said Petitioners. Mr. T. B. Jamir, the learned counsel appears on behalf of the Respondent Nos. 1 to 4; Mr. Yangerwati, the learned CGC appears on behalf of the Union of India and Mr. Limawapang, the learned counsel appears on behalf of the Respondent Nos. 6 to 15.

2. Both the writ petitions are taken up together for disposal by this common judgment and order taking into account the common issues involved.

3. The Petitioner No.1 in both the writ petitions is an association of contractors and suppliers in the State of Nagaland in the name and style of ‘Nagaland Contractors and Suppliers Union’ and the Petitioner No.2 is its Secretary. This Court has specifically enquired with the learned counsel appearing on behalf of the Petitioners as to whether the said Petitioner No.1 is registered under any provision of law. Mr. A. Zho, the learned counsel for the Petitioners submitted that the Petitioner No.1 is registered under the Societies Registration Act, 1860 as well as with the NPWD.

4. The grievances of the Petitioner Association are the issuance of the Notice Inviting Tender by the Office of the Chief Engineer PWD (R&B) Nagaland, Kohima in the month of August 2023 as well as the Short Tender Notice dated 13.10.2023 issued by the Chief Engineer PWD (R&B) Nagaland under PMGSY-III Batch-1 (2023-24). The specific issue which has been raised is that on earlier occasions, when tenders were issued in respect to the PMGSY-I and PMGSY-II against each package, there used to be one roadwork/package. However, by issuing the impugned NITs, the Respondent Authorities in the State PWD have clubbed the various projects/roadwork into one package. It is the submission of the learned Senior counsel for the Petitioners that the guidelines of PMGSY do not permit the State to have more than one project/roadwork against one each package. But the authorities for vested interest have clubbed various projects/roadwork into one package and thereby the opportunities which the small contractors could have availed, have been deprived of. It is the further submission of the learned Senior counsel for the Petitioners that clubbing of various projects/roadwork into one package is actually not feasible for proper implementation of the work as in the terrain like in Nagaland, it would not be possible to complete such works. In this regard, the learned Senior counsel for the Petitioners have placed before this Court some of the provisions of the Programme Guidelines of PMGSY-III. Amongst the Clauses referred to were Clause 13.5 of the Programme Guidelines of PMGSY-III which stipulated that the execution of the works under the PMGSY-III would be on the lines similar to those PMGSY-I and PMGSY-II. On the basis of the said Clause, the learned Senior counsel for the Petitioners submitted that when the guidelines stipulate that the execution of the work have to be in terms with PMGSY-I and PMGSY-II, the State Authorities ought to have issued the NITs having one roadwork/project against each package. In that regard, the learned Senior counsel drew the attention of this Court to earlier NIT’s where each roadwork was packaged separately.

5. The learned Senior counsel for the Petitioners further drew the attention of this Court to Clause 21.6 of the Programme Guidelines which stipulates that works would be packaged in such manner so as to attract competent contractors with modern machinery and equipment and capable of nurturing small contractors. The learned Senior counsel for the Petitioners on the basis thereof submitted that clubbing of various projects/roadworks into one package would be against the interest of small contractors inasmuch as the small contractors would not be capable of carrying out the works of such magnitude.

6. The learned Senior counsel for the