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IN THE HIGH COURT OF ORISSA AT CUTTACK
S. Muralidhar, Krushna Ram Mohapatra, JJ.
Y.B. Constructions Pvt. Ltd. - Appellants
Vs.
Union of India and Ors. - Respondent
Writ Petition (Civil) No. 12743 of 2020
Decided On : 24-03-2021
Technical Bid Rejection - Tender Evaluation - Clause-19 of the NIT - [Clause-19 of the NIT] - The court discussed the rejection of the technical bid by the Petitioner for the work 'Development of Tourism Facilitation Centre-cum-Multilevel Parking at Puri, Odisha (Prasad Scheme)' under Annexure-5. The court analyzed the discrepancy in the documents submitted by the Petitioner and the requirement of Clause-19 of the NIT, which stipulates the proof of successfully completed similar works. The court found that the executed value of the contract submitted by the Petitioner was more than 80% of the estimated cost, and thus, the rejection of the technical bid was not justified.
Fact of the Case:
The Petitioner's technical bid for a tourism development project was rejected by the Indian Tourism Development Corporation (ITDC) due to discrepancies in the documents submitted by the Petitioner.
Finding of the Court:
The court found that the executed value of the contract submitted by the Petitioner was more than 80% of the estimated cost, and thus, the rejection of the technical bid was not justified.
Issues: The main issue was the rejection of the Petitioner's technical bid based on discrepancies in the submitted documents and the interpretation of Clause-19 of the NIT.
Ratio Decidendi: The court held that the rejection of the technical bid was not justified as the executed value of the contract submitted by the Petitioner was more than 80% of the estimated cost, in compliance with Clause-19 of the NIT.
Final Decision: The court set aside the rejection of the technical bid and directed the Tender Evaluating Committee to consider the financial bid of the Petitioner along with other successful bidders.
JUDGMENT :
Krushna Ram Mohapatra, J.
1. The Petitioner in this writ petition calls in question the rejection of its technical bid by the Indian Tourism Development Corporation (ITDC) for the work "Development of Tourism Facilitation Centre-cum-Multilevel Parking at Puri, Odisha (Prasad Scheme)" (for brevity 'the work') under Annexure-5.
2. Pursuant to a Tender Call Notice (Annexure-1) issued by the ITDC for the work for an estimated cost of Rs. 19,12,65,674.25, the Petitioner, Opposite Party No. 7 and other bidders submitted their bids. The last date of submission of the bid was 2nd January, 2020 and the technical bid was scheduled to be opened on 3rd January, 2020 at 16.00 hours electronically. It is revealed from the averments in the writ petition that after opening of the technical bids, the Petitioner was sent an e-mail from the Senior Manager (Civil)-HQ, ITDC-Opposite Party No. 4 on 31st January, 2020 requiring him to submit the following:
(ii) History and structure of firm, name of Director/Partners/Proprietor/with Technical Staff.
3. The Petitioner was required to comply with the requirements by 5th February, 2020. Responding to the e-mail, the Petitioner submitted the required documents/information on 4th February, 2020 through e-portal under Annexure-3. Thereafter, the Petitioner also sent some clarificatory documents to the Opposite Party No. 4 through e-mail on 24th February, 2020 under Annexure-4. On 18th March, 2020, the status of both the technical as well as financial bid was uploaded by the tendering authority. The Petitioner was also informed vide e-mail dated 18th March, 2020 under Annexure-5 series as follows:
In case of any clarifications or feedback, you may contact Tender Inviting Authority (TIA)."
4. The relevant portion of the appendix to Annexure-5 reads as follows:
(1) M/s. B.C. Bhuyan Constructions Pvt. (Ltd, Bhubaneswar: After submission of deficient document i.e. Copy of Profit & Loss Statement for FY 2018-19 (refer page 1 of Deficient documents file) and verification of Similar work experience Certificates of agency (refer page 209 to 2012) of this file), the party is found as technically at par,
(2) ....
(3) M/s. Y.B. Construction Pvt. Ltd., Bhubaneswar: the agency is found as technically disqualified due to following reasons:
(a) Initially at Technical Bids stage, the agency has submitted only Completion Certificate dated 27.09.2019 for value of Rs. 25,96,99,318.00 (refer page 384 of Technical Bids File) and Letter of Acceptance dated 21.10.2016 (refer page 385) for amount of Rs. 27,00,01,000.00. In Completion Certificate dated 27.09.2019, Original Contract Value was mentioned as Rs. 25,43,15,588.00. On seeking clarification and Work Order with BOQ/schedule of Quantity & Rates for work vide TEC's email dated 31.1.2020 and Govt. E-Procurement System (copy placed at page 624 and 125 respectively of Deficient Documents File) the agency has submitted Detailed Letter of Acceptance (DLOA) dated 23.12.2016 for amount of Rs. 27,00,01,000.00 with incomplete set of Schedule of Quantities & Rates (refer page 120 to 123 of Deficie
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