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IN THE HIGH COURT OF ORISSA, CUTTACK
S. Muralidhar, B.P. Routray, JJ.
M/s I V T V L T (j V ) - Appellant
Versus
Chairman-cum-managing Director,mcl & Ors. - Respondents
Writ Petition (Civil) No. 4500 of 2021
Decided On : 04-06-2021
Qualification - Bidding Process - Work Experience - NIT Clause-8(A)
Fact of the Case:
The Petitioner challenged the technical qualification of Opposite Party No.3 in a bidding process for the work 'Hiring of Pay Loaders for Mechanical transfer of Coal into Railway wagons'. The eligibility criteria required experience of similar nature work valuing 50% of the annualized estimated value of the work put to tender in the last 7 years. The Petitioner objected to the work experience certificate submitted by Opposite Party No.3, alleging it to be not genuine.
Finding of the Court:
The Court found that the work experience certificate of Opposite Party No.3 was genuine as clarified by the respective employers. The Court also noted that the experience certificate met the eligibility norms under the NIT. Additionally, the Court highlighted the significant price difference between the Petitioner and Opposite Party No.3 in the bidding process.
Issues: The main issue was the authenticity of the work experience certificate submitted by Opposite Party No.3 and its compliance with the eligibility criteria under the NIT.
Ratio Decidendi: The Court relied on the principle that judicial review of administrative action in matters relating to tenders or award of contracts should only interfere if the decision is mala fide, arbitrary, irrational, or affects public interest. The Court emphasized that commercial functions such as evaluating tenders and awarding contracts do not necessarily require the same level of equity and natural justice as other administrative actions.
Final Decision: The Court dismissed the writ petition, citing no merit in the contentions of the Petitioner.
JUDGMENT
B.P. Routray, J. - The Petitioner has challenged the technical qualification of Opposite Party No.3 to compete in the bid invited by Opposite Party Nos.1 and 2 for the work "Hiring of Pay Loaders for Mechanical transfer of Coal into Railway wagons at Siding No.VI & VII of Lakhanpur Area for a quantity of 3,83,25,000 Te."
2. The Petitioner is a joint venture company. He along with Opposite Party No.3 and others participated in the bidding process invited by Opposite Party Nos.1 and 2, i.e., Mahanadi Coal Fields Limited (MCL) vide Notice Inviting Tender (NIT) No.818/2020/657 dated 28th October, 2020 for the work stated above. The eligibility criteria at Clause-8(A) prescribes as follows:
"8. Eligibility Criteria:
A. Work Experience: The bidder must have experience of works (includes completed /ongoing) of similar nature (as per the definition of similar nature of work given below) valuing 50% of the annualized estimated value of the work (for period of completion over 1 year) / 50% of the estimated value of the work (for completion period upto one year) put to Tender in any year (consecutive 365 days) during last 7 (seven) years ending last day of month previous to the one in which bid applications are invited.
"Annualised value" of the work shall be calculated as the "Estimated value/Period of completion in Days x 365".
The value of executed works shall be given a simple weightage to bring them at current price level by adding 5% for each completed year (total number of days/365) after the end date of experience till the last day of month previous to one in which e-Tender has been invited.
The definition of similar work shall be as follows: Loading of coal/any mineral/soil/ash/stone/ rejects by Pay Loaders/ Excavators into railway wagons/ tippers/trucks.
In respect of the above eligibility criteria the bidders are required to furnish the following information on-line:
I. Start date of the year for which work experience of bidder is to be considered for eligibility.
II. Start date & end date of each qualifying experience (similar nature).
III. Work order Number/Agreement Number of each experience.
IV. Name & address of Employer/Work Order Issuing authority of each experience.
V. Percentage (%) share of each experience (100% in case of an Individual/proprietorship firm or the actual % of share in case of a Joint Venture/Partnership firm).
VI. Executed Value of work against each experience.
VII. In case the bidder is a Joint Venture, the work experience of any one, two or three of the individual partners of JV or the JV itself may be furnished as the work experience of the bidder."
The technical bid was opened on 16th November, 2020 where four bidders including the Petitioner and Opposite Party No.3 qualified. Petitioner objected to the technical qualification of Opposite Party No.3 and submitted representation on 4th December, 2020 to Opposite Party Nos.1 and 2 stating that the work experience certificate submitted by Opposite Party No.3 is not genuine and ought not to have been accepted.
3. It is the contention of the Petitioner that as per Clause-8(A) of the NIT, the work experience certificate has been defined to the effect that the bidder must have experience of work of similar nature valuing 50% of the annualised estimated value of the work put to tender. As per calculation, 50% of the annualised value of the estimated cost comes to Rs.4,18,31,738/-. The work experience certificate of Opposite Party No.3 filed at Annexure-3 to the tune of Rs.6,00,72,502/- is not matching with the work order submitted by Opposite Party No.3 which has been annexed under Annexure-3 series. Therefore, the work experience certificate of Opposite Party No.3 is not a genuine document.
4. Opposite Party No.3 did not come to contest.
5. Opposite Party Nos.1 and 2 who are Tender Inviting Authorities have contested the case by filing their counter. They have refuted the case of the Petitioner by saying that Petitioner has not presented the correct facts in the
The central legal point established in the judgment is the interpretation and application of the work experience criteria as per the tender form, particularly in the context of joint venture partners....
The central legal point established in the judgment is that the rejection of a bid must be lawful and in accordance with the terms of the tender notice. The court emphasized the importance of meeting....
Adherence to tender eligibility criteria is crucial, and experience from joint ventures does not qualify as single entity experience as per prescribed definitions in the tender documents.
The court emphasized the mandatory nature of tender conditions and upheld the decisions of the Tender Evaluation Authority and the Appellate Authority, emphasizing the settled legal position that the....
The court affirmed that in tender matters, the awarding authority has discretion to assess qualifications, and judicial review is limited to ensuring legality and fairness, without substituting the a....
The decision of the employer in interpreting the conditions of eligibility in a tender document must be respected unless it is shown to be arbitrary, outrageous, and highly unreasonable.
The State must act validly for a discernible reason and not whimsically in matters of tender.
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