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2017 Supreme(Ori) 179
IN THE HIGH COURT OF ORISSA, CUTTACK
VINEET SARAN, K.R. MOHAPATRA, JJ.
M/s. Debabrata Samal - Petitioner
Versus
State of Odisha & others - Opposite Parties
W.P. (C) No. 22315 of 2016
Decided On : 09-05-2017
Advocate Appeared:
For the Petitioner: Mr. Milan Kanungo, M/s. S. Mishra, S.R. Mohanty
For the Opposite Parties :Addl. Government Advocate
The main legal point established is that in case of a 'single tender', the opposite party has no option but to cancel the tender and direct for retendering, as per the amended Clause-29 of the OPWD Code, to ensure competitive bidding.
Headnote:
Tender Evaluation - Single Tender - OPWD Code, Clause 29 - 29
Fact of the Case:
The petitioner's tender was the only qualified bid out of five tenders received for a road improvement project. The Tender Evaluation Committee recommended canceling the tender due to technical disqualifications of the other bidders. The petitioner sought to quash the recommendation and cancelation of the bid, and to open the financial bid in their favor. The court disposed of the petition at the admission stage.
Finding of the Court:
The court considered whether the petitioner's tender, as the only qualified bid, should be treated as a 'single tender' under the amended Clause-29 of the OPWD Code. It held that the bid should be treated as a 'single tender' and that the opposite party had no option but to cancel the tender and direct for retendering, as per the amended Clause-29.
Issues: The main issue was whether the petitioner's tender, as the only qualified bid out of five tenders, should be considered a 'single tender' under the amended Clause-29 of the OPWD Code.
Ratio Decidendi: The court interpreted the amended Clause-29 of the OPWD Code and held that in case of a 'single tender', the opposite party has no option but to cancel the tender and direct for retendering, to ensure competitive bidding.
Final Decision: The court dismissed the writ petition, stating that the reliefs prayed for do not deserve to be granted, as the bid of the petitioner is to be treated as a 'single tender' and the opposite party has no option but to cancel the tender and direct for retendering, as per the amended Clause-29 of the OPWD Code.
JUDGMENT :
Vineet Saran, J.
In response to the Tender Call Notice dated 12.08.2016 issued by opposite party No.2-Chief Engineer (DPI and Roads), Works Department, Bhubaneswar for the work “Improvement of Badachana-Balichandrapur Road From 7/200 KM to 11/980 Km under State Plan” for estimated cost of Rs.5,38,43,202/-, the petitioner as well as four other contractors had applied. The technical bids of all the five tenderers were considered by the Tender Evaluation Committee on 18.11.2016. Except the technical bid of the petitioner, the bids of other four bidders were found to be technically disqualified and the petitioner alone was found to be qualified bidder. The proceedings of the Tender Evaluation Committee dated 18.11.2016 reveals that the Committee recommended for cancelation of the tender on the following grounds:
“After detail scrutiny of the bid documents furnished by the bidders and complain and compliance received by this office, the findings of the Committee are as follows:
Sl. No. Name of the Bidder Findings
1. M/s Gourav Construction, Special Class Contractor The bidder has not furnished the existing commitment and ongoing works in Schedule-G format. Hence, the bidder is disqualified for the aforesaid work on the ground of submission of such false statement of declaration as per Clause 117 outlined in the DTCN
2. M/s Divine Construction, Super Class Contractor The available bid capacity is less than the required Bid Capacity. Hence, the bidder fails to meet the eligible criteria as per Clause-122 (f) of DTCN and hence, disqualified
3. Sri Debarata Samal, ‘A’ Class Engineer Contractor The bidder has submitted all the required documents as per the clauses of DTCN.
4. Bhagabati Build & Constructions (P) Ltd., Super Class Contractor The bidder has not furnished the ongoing work i.e. “Improvement such as widening and strengthening to Rajngar-Dangamal-Talchua road from 13/315 Km to 17/914 Km in the district of Kendrapara for the year 2015-16 under State Plan” in Schedule-G format. Hence, the bidder is disqualified for the aforesaid work on the ground of submission of such false statement or declaration as per Clause 117 outlined in the DTCN.
5. M/s B.L. Construction, Super Class Contractor The bidder has not furnished valid VAT Clearance Certificate as per Clause 7 and 122(b) of the DTCN and hence, disqualified.
After detailed discussion, the Committee unanimously decided to cancel the tender and retender the work for competitive bidding”.
2. Pursuant thereto, the opposite party No.2 cancelled the tender vide its order dated 25.11.2016. This petition is thus filed with the prayer for quashing the recommendation of the Tender Evaluation Committee in its meeting dated 18.11.2016 and for cancelation of bid by order dated 25.11.2016 and to open the financial bid of the petitioner so as to settle the tender in its favour. Pursuant to order dated 25.11.2016, the opposite parties issued fresh tender call notice dated 26.11.2016, which has also been challenged in this writ petition.
3. We have heard Sri Milan Kanungo, learned Senior Counsel appearing along with Sri S. Mishra and Sri S.R. Mohanty, learned counsel for the petitioner, as well as learned Additional Government Advocate appearing for the opposite parties. Pleadings between the parties having been exchanged and on consent of the parties, this writ petition is disposed of at the admission stage.
4. The facts, as narrated above, are not disputed by the parties. It is also admitted by the parties that the Orissa Public Works Department Code (for short, ‘OPWD Code’) would be applicable to the grant of contracts by the opposite parties. The question to be considered by this Court is as to whether the tender of the petitioner, which was submitted along with four other tenders, but was the only qualified tender, would be considered as single tender or not. The relevant Clause of the OPWD Code is Clause-29. The pre-amended Clause-29 of the OPWD Code is as follows:
“29. When in response to
