The permissibility of re-evaluation of technical bids by an expert body within a reasonable timeframe and the narrow scope of judicial review in tender matters.

JUDGMENT

1. Heard Mr. Asok Mohanty, learned Senior counsel for the Petitioner and Mr. S. Palit, learned Additional Government Advocate for the State-Opposite Parties 1 to 6 and Mr. D.P. Nanda, learned Senior counsel for Opposite Party No.7.

2. This writ petition has been filed challenging the decision dated 14th January, 2019 of the Chief Engineer, DPI and Roads, Odisha (Opposite Party No.3) to revoke the tender for the work 'Improvement to Pandua- Marthapur road (ODR) from 0/000 km to 20/000 km in the district of Dhenkanal under State Plan' to the price bid opening stage after re-evaluation of the technical bid of Bright Developers & Technocrafts India Pvt. Ltd. (Opposite Party No.7). The Petitioner also challenges the consequential decision dated 21st January, 2019 of the Tender Inviting Authority (TIA) to qualify the technical bid of Opposite Party No.7.

3. Background facts are that the Petitioner is stated to be a Super Class Contractor registered as such in terms of the PWD Contractor Registration Rules, 1967, having valid licence up to March, 2021. It is stated that the Petitioner has executed and satisfactorily completed numbers of work under different departments of the Government of Odisha.

4. Opposite Party No.3 invited, by a notice dated 29th October, 2018 public tender of 19 numbers of work including the aforementioned work in question. The last date for the submission of bids online was 3rd December, 2018. Inter alia, each bidder was required to furnish an earnest money deposit (EMD) of Rs.13.44.800/-.

5. Clause 122 (c) of the Detailed Tender Condition Notice (DTCN) stipulates the eligibility criteria and requires, inter alia, the furnishing by the bidder of the following information at the time of submission of bid:

(i) Evidence of ownership of principal machineries/equipments in Schedule-C as per Annexure-1 of schedule-C,

(ii) Annexure-III of Schedule-C and (iii) Annexure-IV of Schedule-C if required as per clause No.10 scanned copy of all documents are to be furnished with the bid.

6. Further, Clause10 of the DTCN stipulated that:

(i) The Contractors are required to furnish evidence of ownership of principal machineries/equipments in Schedule-C as per Annexure-1 for which contractor shall have to secure minimum 80% of marks failing which the tender shall be liable for rejection.

(ii) In case the contractor executing several works he is required to furnish a time schedule for movement of equipment/machineries from one site to work site of the tendered work in Annexure-IV of Schedule-C.

(iii) The contractor shall furnish ownership documents for those machineries which he is planning to deploy for the tendered work if these are not engaged and produce certificate from the Executive Engineer as per Annexure-III of Schedule-C under whom these are deployed at the time of tendering as to the period by which these machineries are likely to be released from the present contract. Certificate from the Executive Engineer or Government of Odisha or Engineer-in-Chief of the project (in case of non government projects) under whose jurisdiction the work is going on, shall not be more than 90 days old on the last date of receipt of tender.

7. Five bidders including the Petitioner and Opposite Party No.7 participated. The tender was evaluated by a Tender Evaluation Committee (TEC) (Opposite Party No.2) on 29th December, 2018. The Petitioner and three others were found to be qualified. The technical bid of Opposite Party No.7 was rejected/disqualified on the ground that the bidder failed to secure minimum qualifying of 80% marks in plants and machineries as per Clause 10 of the DTCN and did not qualify the minimum eligibility criteria as per Clause 122 (c) of the DTCN.

8. On 1st January, 2009 the price bids of those whose technical bids were found qualified, were opened. The Petitioner was found the first lowest. The tender summary was uploaded by the TEC on 11th January, 2019 showing the Petitioner to be the L1 bidder. The Executive Engineer