JUDGMENT
1. The petitioner is registered as a Special Class contractor. According to the petitioner, the petitioner has been executing works in Andhra Pradesh, Maharastra, Madhya Pradesh. It has also worked for Indian Railways, and Konkan Railway Corporation. According to the petitioner, the petitioner has vast experience in execution of civil works and has a reputation of performing the works without complaints. The third respondent issued a tender notice on 14th August, 1998 inviting tenders from eligible contractors for execution of packages of works L3-01 (B1) and L3-01(B2). The estimated value of the work was Rs.143 and 109 millions respectively for each package. The bids were to be submitted upto 14th October, 1998 and opening of the bids was fixed on the same day at 15.30 hours. Five contractors filed their tenders for the work package L3-01(B2) and four contractors filed their tenders for L3-01(B2). According to the petitioner, his tender was the lowest for both the works at 14.619% over and above the estimated value of L3-01(B2) and at 11.409% over and above the estimated value for L3-01(BI). The fifth respondent tendered for the work L3-01 (B1) at 15.28% over and above the estimated value. The difference between the offers of petitioner and 5th respondent for L3-01(B1) work in terms of money would be around 59.00 lakhs according to the petitioner. The petitioner’s bid was lowest and there was difference of about 59.00 lakhs between the bid of the petitioner and 5th respondent. According to the petitioner, respondents 1 to 3 recommended the bid of 5th respondent for work being allotted to him. The petitioner’s bid was rejected as non-responsive on the ground that the petitioner lacks experience in mechanical placement/paver in Cement Concrete (C.C) lining works.
The rejection of the tender of the petitioner although it was lowest and recommending and acceptance of the tender of the 5th respondent is challenged in this writ petition.
2. There is no dispute with regard to contract L3-01(B2), the dispute raised in this writ petition is confined to L3-01(B1) and hereinafter it is referred as the
contract.
3. Counter has been filed and in the counter it has not been disputed that the petitioner’s tender was the lowest, but, it has been pleaded that petitioner was not eligible in terms of Clause (4) of Instructions to Bidders (ITB). It is stated that under the Contract in question bids were invited for the work of improvements and repairs Kakatiya Main Canal from KM 146 to KM 191 and rehabilitation and modernisation of distributaries DBM 1 to 5 and DBM 7 with their minors and sub-minors under the contract. The approximate value of the work was Rs.143 millions and the completion period was 30 months. The case of the respondents is that although the tender of the petitioner was lowest, he was found lacking in the experience of mechanical placement in respect of cement concrete lining as required under Clause 4.5-A(c) of the Instructions to Bidders. Clause 4.5-A of the Instructions is quoted below:
“4.5-A. To qualify award of the contract each bidder in its name should have in the last five years i.e., 1993-94, 1994-95, 1995-96, 1997-98
(a)……
(b)……
(c) Executed in any one year, the following minimum quantities of work:
– Cement Concrete (including RCC & PSC) 7000 cum
– Earthwork in both excavation and embankment (combined quantities) 2,82,000 cum
– Cement concrete lining of canals excluding Field Channels
Mechanical placement 82,400 sum or 8,200 cum Manual placement 48,200 sqm or 4,800 cum. According to the respondents the requirement under Clause 4.5-A(c) is that the competitor should have done 82,400 sqm or 8,200 cum of mechanical placement. There is no dispute between the parties on this requirement but the dispute is about correctness or genuineness of the certificates produced by the petitioner.
4. The case of the petitioner is that he enclosed experience certificates required. The certificate which he produced was one issued by Executive Engineer, Majalgoan, Canal Division 7, Ganga Khed, Parbani District, Maharashtra. According to this certificate, the petitioner has executed 1,11,460 Sq.metres of cement concrete lining work by Mechanical means in the year 1993-94. The petitioner submits that on furnishing this certificate the third respondent made enquiries about the genuineness of the certificate by deputing an officer of the rank of Deputy Executive Engineer to the project from where the Certificate had been issued. The Officer submitted a report confirming the genuineness of the certificate vide his letter dated 3-11-1998. In this report Sri J.S. Sunderam, Deputy Executive Engineer reported that;
“As discussed with the above officials the lining to canal bed and sides are done with form work vibrating mechanically. The Executive Engineer, Upper Wardha Canal Division No.1, Amaravathi has submitted the details of item pertaining to their work.”
He annexed the work done certificate issued by Executive Engineer, Majalgoan Canal Division No.7 which gave the details of work. In this certificate under column “Remarks” it has been stated, “Lining done by mechanically”.
5. The Superintending Engineer was not satisfied with the certificate, therefore he deputed another Officer namely Azizullah Khan, Executive Engineer. He visited the site on 11-12-1998 and he gave his report by letter dated 12-12-1998 and under the column, “Result of Journey” he stated, “As per the request of the Superintending Engineer, Construction Circle, Huzurabad under reference letters 1st and 2nd cited, a letter addressed to the Superintending Engineer, Construction Circle, Huzurabad duly furnishing the particulars in the annexure as desired, is obtained from the Executive Engineer, Majalgaon Canal Division No.7, Gangakhed and submitted (in original and two xerox copies).” Along with this report, Mr. Azizullah Khan submitted a work done statement issued by the Executive Engineer, Majalgaon Canal Division 7. It was specifically stated in this work done statement that, total quantity executed with paver, transit mixer was 4,40,429 Sq. meters Mr. Azizullah Khan on his own submitted another report on 16-12-1998 in which while giving reference to his earlier report he stated-that, “I have to report that as per the discussion held with the Executive Engineer, Majalgaon Canal Division No.7, Gangakhed on 10-12-1998 the CC lining is not done with paver.” In his earlier report he had not given his opinion, he only forwarded the work done statement provided to him by the Executive Engineer, Majalgaon, Canal Division 7.
6. The case of the petitioner is that this certificate was result of mala fides and respondents wanted to oust the petitioner and allot the contract to respondent No.5 on the Instructions of a Minister. It is further
stated that the Minister called Sri Azizullah Khan and made him to change his opinion. In any case, it becomes doubtful why Azizullah Khan did not give his opinion in his report dated 12-12-1998, why did he only forwarded his report with certificate issued to him by Executive Engineer, Majalgaon and why only after 4 days he gave his opinion although he had not visited the site again after 12-12-1998. After this report was taken into consideration the second respondent submitted his evaluation report to the first respondent. By that item another contract had been finalised being a contract in response to C5-04/A- under Tender notice dated 25-7-1998. The petitioner had produced the same certificate which he had produced in the contract which is under challenge in this writ petition, he was recommended, but he first respondent returned the recommendation raising certain objections. One of the objections was that the petitioner has produced a certificate showing that he had done work of cement concrete lining to the extent of 1,11,460 Sq.meters. whereas the petitioner had produced a certificate for some other contract being package 16/SRBC which was also issued by Executive Engineer, Majalgaon Canal Division 7 whereby it was shown that the petitioner had only done work of 64,640 Sq. meters. Thereafter, the respondent No.1 considered the bids of L3-01(B1) and recommended respondent No.5 as lowest responsive bidder.
7. The discrepancies which were pointed out by respondent No.1 lead to deputing of another Officer to Majalgaon and Sri D.George Wilson, Executive Engineer was asked to meet the Executive Engineer, Majalgaon, Canal Division 7 and obtain information from him. Sri George Wilson reported on 25-2-1999 that he had explained the discrepancies in the certificates issued by him to the Executive Engineer, Majalgaon Canal Division 7 but he had told him that he will inform by a letter after
verification. Sri George Wilson was also handed over with a letter which inter alia read, with reference to above subject, it is to inform you that the clarification of Discrepancy in the quantities will be submitted shortly. Thereafter a letter was sent on 24th March, 1999. In this letter a copy of the same work done statement was sent which had been given to Azizullah Khan thereby confirming that the petitioner had done, 1,11,460 Sq, meters work with paver and transit mixer in the year 1993-94.
8. In the meantime, discrepancies
were pointed out to the petitioner also. He was asked to produce original certificates to which he replied by letter dated 26th February, 1999 that, he that as it may, on verifying our records we find that two original certificates required by you are not traceable. We have consequently sent the xerox copy of the 1st certificate required by you to the issuing authority and have got the same certificate and verified and signed by him. With reference to the third certificate requested by you (Upper Wardha Canal Division, you will notice that the same is a copy of the letter written to SE SRBC, Circle No.III. The original will hence be available in the said office and may be officially obtained from there. We hope that this would be sufficient, particularly in view of your earlier enquiries. The respondents found discrepancies in the earlier certificate submitted by the petitioner and the certificate given along with the present bid. In the earlier certificate the same Executive Engineer, Majalgaon, Canal Division 7 had stated that the petitioner had done work of 64,460 Sq.meters and in the fresh certificate he has stated that the work of 1,11,406 Sq. meters was done mechanically.
9. Now, the question before the Court is, whether the petitioner was eligible or ineligible. It is a fact that the petitioner’s tender was the lowest. If he was eligible,
then possibly there was no ground for rejection of contract to the petitioner. Another ground for rejection was that one Sri Ramachandra Reddy has merged his Company with the petitioner Company on 12-12-1998 and Sri Ramachandra Reddy’s experience could not be counted as experience of the petitioner firm. The certificates produced and discussed above relate to work done by Sri Ramachandra Reddy and not the petitioner firm. This issue may not have to be decided in this petition.
10. The petitioner also challenged the eligibility of respondent No.5. It is submitted that respondent Nos.5 and 6 were lacking in experience as contemplated in Clause 4.5.A and 4.5.C. The certificates produced by respondent No.5 relate to a period of financial year 1997-98 and therefore could not have been taken into consideration. According to the petitioner, the certificate of experience produced by respondent No.5 varies both in respect of quantity and financial turn over with a similar certificate submitted by 5th respondent along with the bid document of another work, both certificates had been issued by the same authority. In reply to these assertions, in the counter it is stated that third respondent had verified the certificate produced by respondent No.5 and after getting satisfied he recommended his bid for being accepted. Regarding the allegation that the certificate of 5th respondent relates to the period beyond the financial year 1997-98 it is submitted that the relevant clause in the terms and conditions is only taken into consideration with a view to assess the capacity of the bidders to execute the work of a particular magnitude. According to the respondents, similar concession was given to the petitioner and it has been upheld by this Court in WP No.12567 of 1998. Considering the assertions made in the writ petition and reply thereto, it is also doubtful at this stage whether the respondent 5 was clearly eligible, or not.
11. Various judgments have been cited. One of the judgments is Raunaq International Limited v. IVR Constructions Limited, . In this judgment in para 11 the Supreme Court laid down;
“11. When a writ petition is filed in the High Court challenging the award of contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the Court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderers or the other tenderer. Therefore, unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the Court should not intervene under Article 226 in disputes between two rival tenderers.”
12. Basically it is a dispute between the petitioner and respondent No.5 but there are certain matters which raise doubts in the mind of the Court. It is also settled that in the writ jurisdiction this Court will be only entitled to sees as to whether the method adopted in selecting a tenderer was fair or arbitrary. The Court may not be able to go into the questions whether the right person had been chosen or wrong person had been chosen. It may not also be in a position to appreciate whether the respondents were right
in choosing a tenderer to whom about Rs.60 lakhs of money has to be paid more than the one who has been rejected by them. It is true also that the petitioner has given two different certificates at two different times although he contends that the earlier certificate was for a part of the work and the latest certificate was for the consolidated works, but on asking he could not produce the original certificate of the earlier work. It also appears that the respondents have gone out of their way to find fault with the certificates presented by the petitioner and deputed as many as three officers to Majalgaon and had a lot of correspondence with the Executive Engineer, Majalgaon, Canal Division No.7. It is also a fact that one of the Officers namely Mr. Azizullah Khan gave a report on 12-12-1998 in which he did not give any opinion but forwarded the copy of work done statement furnished to him by the Executive Engineer of Majalgaon, but later on he gave his opinion on 16-12-1998 in which he stated that petitioner was not eligible. What happened in between the four days is not known to this Court. But, this is not sufficient material to stall a project which is a massive project started with the aid of the World Bank and if it is delayed, besides escalations in costs the World Bank may even stop the aid to the project. For these reasons, I am of the view that this Court should not intervene in the matter, but the matter certainly needs an enquiry.;
13. Therefore, I direct the Chief Secretary to look into the matter and enquire through an Officer not below the rank of Principal Secretary to Government as to;
(a) whether the contract had been allotted to respondent No.5 bona fidely although he had quoted a price of Rs.59 lakhs more than the petitioner?
(b) Whether the petitioner had produced genuine certificate, or not?
(c) Whether respondent No.5 was eligible for awarding contract, or not?
14. It will be open for Chief Secretary to allow the respondent No.5 to continue with the work, or, stop it during the pendency of enquiry keeping the public interest in view. In case, the Chief Secretary decides to stop the work, it will be open to him to allot the work cither to respondent No.5 to the petitioner depending upon the report of enquiry after the enquiry is concluded. However, if the Chief Secretary decides that the work should go on in view of the public interests, then, if in enquiry it is found that the contract was not given bona fidely to respondent No.5, the respondent No.5 should be asked to reduce the price of contract by Rs.59 lakhs.
15. The Chief Secretary shall appoint the Enquiry Officer within two weeks and he shall be asked to submit his report to the Chief Secretary within two months thereof.
16. With these directions the writ petition is disposed of. No costs.