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2014 Supreme(P&H) 1119
PUNJAB & HARYANA HIGH COURT
ASHUTOSH MOHUNTA & RAJ RAHUL GARG, JJ.
Brij Gopal Construction Co. Pvt. Ltd. – Appellant
Vs.
State of Haryana and Others – Respondents
C.W.P. No. 20209 of 2014
Decided On : 8.12.2014
The decision to re-tender a construction work should be based on valid and relevant reasons, and the authority to approve or reject the tender must act within its jurisdiction.
Headnote:
Tendering - Construction of outfall drains master SWD Leg-I and Leg-II with RCC box drain from railway culvert No. 47 and railway culvert No. 50 up to Nazafgarh drain and providing external storm water drainage of sectors 37C, 37D and sectors 99 to 115, Gurgaon - DNIT dated 27/06/2014 - Rs. 264.90 crores - Eligibility Conditions - Lowest bidder - Retendering - Technical scheme - Blacklisted firm - Rejection of bid - Jurisdiction - Promissory estoppel - Lowest tenderer - Administrative approval - Judicial review
Fact of the Case:
The petitioner participated in a tender for construction work and was found to be the lowest bidder. However, the work was ordered to be re-tendered due to the technical scheme not being finalized by the respondents. The petitioner challenged this decision, arguing that it was fully qualified and entitled to the tender. The respondents cited unsatisfactory performance on earlier projects as the reason for re-tendering.
Finding of the Court:
The court found that the petitioner was the lowest qualified bidder and that the decision to re-tender was based on unsatisfactory grounds. The court also noted that the order for re-tendering was passed without jurisdiction and in a colorable exercise of power.
Issues: Validity of the decision to re-tender the construction work despite the petitioner being the lowest qualified bidder
Ratio Decidendi: The decision to re-tender the work was found to be based on unsatisfactory grounds and passed without jurisdiction, leading to the court quashing the impugned order and directing a re-consideration of the petitioner's case.
Final Decision: The court allowed the writ petition, quashed the impugned order, and directed the respondent to re-consider the case of the petitioner afresh within a period of four weeks.
ASHUTOSH MOHUNTA, J.
1. The present writ petition has been filed against the impugned order dated 27/08/2014 (Annexure P 23) vide which construction of outfall drains master SWD Leg-I and Leg-II with RCC box drain from railway culvert No. 47 and railway culvert No. 50 up to Nazafgarh drain and providing external storm water drainage of sectors 37C, 37D and sectors 99 to 115, Gurgaon has been ordered to be re-tendered after finalisation of the technical scheme for execution of this project by HUDA.
2. The facts of the case in brief are that Haryana Urban Development Authority issued DNIT vide memo Nos. 6729 6828 dated 27/06/2014 inviting E-tenders with regard to work estimating Rs. 264.90 crores from the eligible contractors/firms enlisted in appropriate class/category on the approved list of HUDA, PWD B&R, PHED, MES, CPWD Central Government and State Government Department and undertaking of CPWD Central Government and State Government Department for the work of construction of outfall drains master SWD Leg-I and Leg-II with RCC box drain from railway culvert No. 47 and railway culvert No. 50 up to Nazafgarh drain and providing external storm water drainage of sectors 37C, 37D and sectors 99 to 115, Gurgaon. The eligibility criteria for participating in the said tender is culled out herein-below:-
Eligibility Conditions:-
Average Annual financial turnover during the last three years ending 31st March of the previous financial year of the agency/contractor should not be less than as under:-
Time period for execution Average Annual of work Turnover 3 years or more 30% of the estimated cost of the work 2 years 50% of the estimated cost of the work 1-1/2 year 70% of the estimated cost of the work 1 year 100% of the estimated cost of the work Experience of having successfully completed similar nature of works during last seven years ending lay (sic) of month previous to the one in which tenders are invited should be either of the following:-
One similar nature of completed work costing not less than 80% of the estimated cost of the work.
OR
Two similar nature of completed works costing not less than 50% of the estimated cost of the work.
OR
Three similar nature of completed works costing not less than 40% of the estimated cost of the work.
(iii) Financial net worth of bidder shall not be less than 25% of contract value as on 31st March of the previous financial year and should be certified by the Regd. Chartered Accountants.
The net worth shall be worked out as under:-Net Worth = (Paid Up Equity = Reserves) (Revaluation Reserves + Misc. Expenditure not written off and accrued liabilities).
(iv) Solvency, i.e. Evidence of access to line(s) of credit and availability of other financial resources facilities 25% of contract value, duly certified by the Bankers (not more than 3 month old).
(v) Joint Ventures are not allowed.
(vi) The certificate of performance that the contractural agency is not associated directly or indirectly with HUDA or any other entity that has prepared the design, specification & other documents of project.
In addition to the above, the following shall also be applicable:
(a) Definition of similar nature of work shall be as under:-
Public Health Work Similar work of Sewerage and Storm Water Drainage complete in all respects.
(b) The satisfactory performance certificate of the works already executed must be taken from the client for whom the bidder has executed the works and it should be signed by the Officer not below the rank of Executive Engineer or equivalent officer. The same may also be verified, if required, by the office of the Executive Engineer before allotment of work.
(c) The bidder must have the following number of Engineers on rolls at least for a period of six months before opening of tender:
For works with estimated cost between Rs. 5 Crore to Rs. 50 Crore 2 Nos. Degree Holders and 2 Nos. Diploma Holders, For works with estimated cost between Rs. 50 Crore to Rs. 100 Crore 3 Nos. Degree Holders and 4 Nos. Dip
