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2020 Supreme(Jhk) 204
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Rajesh Shankar, J.
M/s. Vinod Kumar Jain - Petitioner
Versus
The State of Jharkhand & Ors. - Respondents
W.P. (C) No.5408 of 2019 With W.P.(C) No.5416 of 2019 With W.P.(C) No.5689 of 2019 With W.P.(C) No.5894 of 2019
Decided On : 14-01-2020
For the Petitioner:M/s Sumeet Gadodia, Advocate, Mr. Krishna Murari, Advocate
For the Respondent:Mr. Ajit Kumar, A.G., Mrs. Ritu Kumar, Advocate
Headnote:
(A) Government Contract - Tender - Writ court has inherent limitation on scope of any detailed enquiry in contractual matters - However, writ court can certainly examine whether decision making process by State authorities is unreasonable, irrational, arbitrary and violative of Article 14 of Constitution of India - Once procedure adopted by any authority of State in matter of public contract is held to be against mandate of Article 14 of Constitution of India, Writ Court cannot ignore such action of State authorities on pretext that there should be some latitude or liberty in contractual matters and any interference by writ court would amount to encroachment over exclusive right of State authorities to take such decision - High Court while making judicial review is not expected to act as a court of appeal in examining administrative decision and to find out as to whether any different decision could have been taken by State authorities in facts and circumstances of case - Writ court should ordinarily refrain from examining details of terms and conditions of contract which are entered by State/its functionaries. (Paras 20 and 23)
(B) Government Contract - Tender - Declaration of technical bid as non-responsive bid - Almost all bidders have deviated from prescribed format of bank guarantee and had violated one or other condition of SBD - If State respondents had any intention to strictly follow format of bank guarantee, there was no reason as to why they would have deviated from it by relaxing some of defects in bank guarantee of other bidders including private respondent irrespective of fact whether those were condonable or otherwise - Even if an action is in realm of contract, writ Court is empowered to make judicial review of action of State authorities and to determine as to whether there has been any illegality, perversity, unreasonableness, unfairness or irrationality thereby vitiating said action - State respondents have given different treatment to different bidders in tender process which is not permissible in eye of law - Decision of Tender Committee quashed - All consequential action of State respondents taken in relation to said tender including award of tender in favour of private respondent also quashed - State respondents directed to issue fresh tender. (Paras 27, 31, 47 and 48)
ORDER :
W.P.(C) No.5408 of 2019:
1. The present writ petition has been filed by the petitioner Vinod Kumar Jain (hereinafter to be referred as P-1) for quashing of the decision of the Tender Committee dated 03.10.2019 as uploaded in Form No.5B by respondent no.4 to the extent the technical bid of the P-1 has been declared as non-responsive to Clause 16.3 of the Instructions to Bidders (ITB) to Standard Bidding Document (SBD) in respect of the work pertaining to “Reconstruction of Meral-Bana-Ambakhoriya Road (MDR-140) (hereinafter to be referred as W-1). Further prayer has been made for issuance of direction upon the respondent-State of Jharkhand to declare the technical bid of the P-1 as responsive and consequently to open the price bid of the P-1 and award the work in question to it by issuing of Letter of Intent/Work Order if the petitioner’s financial bid is found to be the lowest.
2. The factual background of the case as stated in the writ petition is that the respondent-State of Jharkhand vide e-Tender Notice dated 07.06.2019 invited tenders for Reconstruction of Meral-Bana-Ambakhoriya Road. The P-1 participated in the said tender namely W- 1 and as per Clause 16 of the ITB to Standard Bidding Document (in short to be referred as SBD) of the said tender, submitted requisite bid security of Rs.133.58 lakhs by way of bank guarantee in the format as prescribed in the SBD. However, the said e-Tender was cancelled by the State respondents vide notice dated 20.08.2019 issued by the respondent no.4 and the original bank guarantee submitted by the P-1 was returned back to it. Thereafter, a fresh e-Tender notice dated 20.08.2019 was issued for the same work with a similar condition contained in Clause 16 of the ITB to SBD to furnish a bid security of Rs.133.58 Lakhs. Pursuant to the 2nd Call tender dated 20.08.2019, the P-1 again participated in the said tender process and submitted the same bank guarantee after getting it amended by its banker. However, the technical bid of the P-1 was declared non-responsive by the Tender Evaluation Committee of the respondent authorities on the ground that its bid was non-responsive to Clause 16.3 of the ITB to SBD. The P-1, having come to know about the said fact, filed representation before the respondent no.3 on 04.10.2019 requesting therein to revise the decision taken by the Tender Evaluation Committee, however the respondents did not pay any heed of the same.
W.P.C No. 5689 of 2019:
3. The present writ petition has been filed by RAMIYA-HS(JV) (hereinafter referred as P-2) for quashing the Government e-Procurement System Tender Summary Report in connection with NIT No.RCD/Garhwa/726/19-20(2nd Call) dt.20.08.2019 for award of contract for construction of Meral-Bana-Ambakhoriya Road (MDR-140) (W-1) (Length-0.00 to 36.629 Km) dated 07.10.2019 along with appendix thereof at serial no.7 qua the petitioner RAMIYA-HS(JV) (70:30), Gaya whereby it has been declared non-responsive in technical bid due to alleged non satisfaction of clause 2.7.1(ii) of the Addendum/Amendments to the Instruction to Bidders (ITB) to SBD. Further prayer has been made for issuance of direction upon the State respondents to declare the technical bid of P-2 as responsive as it satisfied all the criteria of the SBD and consequently to open the Financial Bid of the P-2 as well as to declare it L1 in as much as it has quoted the bid price of Rs.107,55,36,040.91/- as against the minimum bid price quoted by one M/s Agrawal Global Infratech Private Limited @ Rs.111,78,68,989/-.
4. The factual background of the case as stated in the writ petition is that the P-2 has been formed by way of Joint Bidding Agreement dated 02.09.2019 to participate in the 2nd Call tender dated 20.08.2019 for the work W-1. As per the joint venture agreement and the power of attorney executed by and between the parties of joint venture M/s RAMIYA Construction Pvt. Ltd. has been designated as lead partner with power of attorney to conduct, participate and trans
