Anoop Chitkara DECISION
V. Ramasubramanian, C.J.
1. Challenging the rejection of his technical bid in a tender for Periodical Renewal Work of a Highway, the petitioner has come up with the above writ petition.
2. Heard Mr. Arun Raj, learned Counsel for the petitioner, Ms. Ritta Goswami, learned Additional Advocate General for respondents No. 1 to 3 and Mr. Rajesh Kumar Sharma, learned Assistant Solicitor General of India for respondent No. 4.
3. On 10.04.2019, the 2nd respondent issued an 'Invitation for Bid' for the award of a contract for the periodical renewal work from 90/0 to 100/0 on NH 70 (new NH-03) in the State of Himachal Pradesh under the Annual Renewal Programme for the year 2019-2020. The petitioner submitted his technical and financial bid online on 29.04.2019. After intimating him on 15.05.2019, through an e-mail sent at 5.52 p.m. that his technical bid has been accepted, the respondents informed the petitioner by a subsequent e-mail sent on the same day that the duly constituted Committee has rejected his bid during technical evaluation. Though the e-mail did not indicate the reasons, the Evaluation Committee's opinion was published in the website by the respondents on the same day. It revealed that the bid submitted by the petitioner was treated as nonresponsive, in the light of Clauses 4.3 and 4.5.3(b) of the ITB. Aggrieved by the said rejection, the petitioner is before this Court.
4. Admittedly, the technical bid submitted by the petitioner was held to be nonresponsive in the light of Clauses 4.3(a) and 4.5.3(b). Therefore, it would be useful to extract these Clauses.
5. Clauses 4.3(a) reads as follows:
"If the Employer has not undertaken prequalification of potential bidders, all bidders shall include the following information and documents with their-bids in Section 2:
(a) Copies of original documents defining the constitution or legal status, place of registration, and principal place of business; written power of attorney of the signatory of the Bid to commit the Bidder;"
6. Clauses 4.5.3(a) & (b) read as follows:
"4.5.3. General Experience The applicant shall meet the following minimum criteria:
(a) Average annual turnover (defined as billing for works in progress and completed in all classes of civil engineering construction works only) over the last five years of 33 per cent of the value of contract/contracts applied for.
(b) Experience in successfully completing or substantially completing at least one contract of MDR/highway (road and/or bridge works) airport runway of at least 33 per cent of the value of proposed contract within the last five years."
7. The case of the respondents is that the petitioner is a Class-B Contractor registered with the Department and that as per the conditions of his registration, he is eligible to participate in tenders of the value of upto ` 200.00 lacs only. But the approximate value of the work in question is ` 3,68,87,635/-. Therefore, the first ground on which the technical bid of the petitioner was rejected was that the petitioner does not qualify as per Clause 4.3(a).
8. But we have extracted Clause 4.3(a) already. The said Clause merely speaks about the requirement to furnish original documents defining the constitution or legal status, place of registration etc. of the bidder. In other words, Clause 4.3(a) is a prescription under which the status of the bidder, either as an individual or as a member of the HUF or as a partner in a firm or as a private or public limited company, is sought to be ascertained. It has nothing to do with the status of the individual as a Class-A or Class-B Contractor. It has nothing to do with the registration that is obtained by an individual from the Public Works Department.
9. In fact, the 'Invitation for Bid', does not restrict the eligibility to bid, only to contractors registered with the Public Works Department. It is an invitation to all and not restricted to the registered contractors or contractors registered for a value equivalent to or higher than the value of the contract. Hence, the first ground on which the technical bid of the petitioner was rejected, does not appear to be valid.
10. However, it is submitted by Ms. Ritta Goswami, learned Additional Advocate General that the 'Invitation for Bid' should be read in conjunction with 'Standard Bidding Document Procurement of Civil Works'. Though in Section 1 of the said document, it is stated in Clause 3.1 of Table-A that the 'Invitation for Bid' is open to all, the bidders are required under Clause 3.2 of Table-A of Section 1 to provide certain documents. Section 2 contains a Pro-forma in which qualification information is to be provided. Column No. 1 of the said Pro-forma speaks about the place of registration. Therefore, it is sought to be contended by the learned Additional Advocate General that the registration as a contractor and the value up to which a contractor is registered, are important.
11. But the above argument is unsustainable. The Pro-forma in Section 2 of the said document speaks only about the legal status of the bidder. The legal status of a bidder is to be found out by the nature of the constitution. It could be an individual or a partnership firm or a limited company or a limited liability partnership. If the status of the bidder falls under anyone of these categories (other than being an individual), the registration of the same as an entity is what is sought to be inquired by the Pro-forma in Section 2.
12. Once it is admitted that the invitation is open to all, the respondents cannot go beyond what is stated in the bid document and impose an additional condition. Therefore, the first ground on which the technical bid of the petitioner was rejected, with reference to Clause 4.3(a) of the bid document, is liable to be rejected.
13. Coming to the second ground, the claim of the petitioner is that his average annual turnover for the past five years, as per the Certificate of the Chartered Accountant, was more than ` 1.26 crores. The total value of the contract in question is ` 3,68,87,635/-. Therefore, the petitioner's average annual turnover for the last five years is obviously greater than 33% of the tender cost. Hence, the petitioner cannot be said to have not fulfilled the condition stipulated in Clause 4.5.3(a). We think that to the above extent the petitioner is right. The respondents did not dispute the correctness of the claim made by the petitioner about his average annual turnover. Therefore, the petitioner in fact satisfies the criteria indicated in Clause 4.5.3(a).
14. However, in so far as Clause 4.5.3(b) is concerned, the stand taken by the respondents is that the petitioner claimed to have carried out a project on an earlier occasion. This project was described by the petitioner himself, in the Certificate annexed to his bid document, as follows:
"C/O approaches of Dugha Nallah Bridge on Mattan Sidh to Hamirpur road km 0/0 to 5/400. (Old NH-88."
15. According to the respondents, the aforesaid work was neither of MDR/Highway nor of any Airport Runway. It is claimed by the respondents that the stretch in respect of which the petitioner carried out work on an earlier occasion, was originally part of NH-88 Shimla-Dharamshala Road km 140/800 to 146/0. The road from Mattan Sidh to Hamirpur was handed over to the Public Works Department in October, 2015, as the same was de-notified by the Government of India. Therefore, it is claimed by the respondents that the petitioner did not fulfill the condition stipulated in Clause 4.5.3(b).
16. We have already extracted Clause 4.5.3(b). The requirement under the said Clause is experience in successfully completing or substantially completing at least one contract of MDR/Highway (road and/or bridge works) Airport Runway.
17. Unfortunately, the work carried out by the petitioner, even as per the description given in his own document, is the construction of approaches of Dugha Nallah Bridge on Mattan Sidh to Hamirpur Road. The construction of MDR/Highway may be different from the construction of approaches. We are not clear as to whether such a work will be taken to be construction of a road at all. In fact, in the third column of the document that the petitioner attached to his bid, he has given the description of the work. The description of the work reads as follows: "WBM, BM, BC, Cement Concrete Drains and Thermoplastic Road Marking.'.
18. Technically, 'WBM' stands for 'Water Bound Macadam'. It is stated to be only a part of sub grade of any road. Similarly, 'BM' stands for 'Bituminous Macadam', which is said to be an undesigned recipe type, open graded mix used for low traffic roads as a drainage layer. 'BC' stands for 'Bituminous Concrete'. Therefore, we are not able to make out whether the petitioner could be taken to have fulfilled the requirement of experience in successfully completing at least one contract of MDR/Highway. In such circumstances, we cannot find fault with the respondents for rejecting the technical bid of the petitioner on the basis of Clause 4.5.3(b).
19. In view of the above, though we find that one ground of rejection of the technical bid is legally unsustainable, the other ground of rejection is valid and we have no material to dislodge the same. Hence, the writ petition deserves to be dismissed. Accordingly, it is dismissed along with pending application(s), if any.
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