V.GOPALA GOWDA, CJ & A.S.NAIDU, J.
W.P.(C) NO. 14499 OF 2009. (Decided on 24.6.2010).
RAMESH CHANDRA SAMANTARAY ........... Petitioner.
.Vrs.
STATE OF ORISSA. ........... Opp.Parties.
CONSTITUTION OF INDIA, 1950 - ART. 226 & 227.
For Petitioner – M/s. J.M.Mohanty & R.K.Parida, P.C.Maharana,
M.Pani & R.K.Ray.
For Opp.Parties – Mr.R.K.Mohapatra,
Govt. Advocate.
V.GOPALA GOWDA, CJ. This writ petition has been filed by the petitioner seeking
for issuance of a writ of certiorari to quash the retendering notice vide Annexure-7 and
further to issue a writ of mandamus to the opposite party No.2 i.e. Chief Construction
Engineer, Kanpur Irrigation Project, Keonjhar direction him for issuance of a work order
in his favour in respect of the work covered under Annexure-1 tender notice by accepting
his bid offer urging various facts and legal contentions.
2. The brief facts, for the purpose of appreciating the rival legal contentions urged on
behalf of the parties, are that opposite party No.2 published a tender notice both in
website as well as in daily News Paper inviting on-line item rate tenders fixing the date
and time for submitting the tender paper from 10.11.2008 to 26.11.2008. The petitioner
after down-loading the tender call notice from the website, submitted his tender
documents within the prescribed time. The estimated cost of the project was Rs.798.22
lakhs including excavation of Main Canal from R.D.1500 Mts. To 3120 Mts. In the tender
paper, petitioner has quoted his tender bid of Rs.7.18.477.83 which was 9.9% less than
the estimated cost. There were three competitors including the petitioner for the said
project work in question. It is the case of the petitioner that out of them, he was the
lowest bidder. The said financial bid was opened after the technical bid which was held
on 28.11.2008 and it was found that the petitioner’s bid was the lowest one. As the
validity of the bid for the aforesaid work has already expired on 23.2.2009, opposite
party No.2 vide his letter dated 26.2.2009 requested the petitioner to extend the validity
of the bid up to 30.06.2009 for processing of the financial bid with a further request to
him to furnish the price analysis in support of the rate quoted by him at an early date, as
per the documents under Annexure-2. In response to the said documents petitioner
submitted his reply on 9.3.2009 (Annexure-3) stating that the total bid amount offered by
him comes to less than 9.9% of the estimated cost, as a result of which his bid amount is
not seriously unbalanced as per Clause 41 of the Detail Tender Call Notice (D.T.C.N.) of
technical Bid document. As per the said clause additional performance security was
required to be deposited by the successful bidder when the bid offered by him is
seriously unbalanced than the estimated cost in the tender call notice to the extent of the
differential cost of the bid amount and he had to submit 90% of the estimated cost in
shape of post office Saving Bank Account or National Savings Certificates (NSC). It is
further stated that there was no clause about the individual items and it indicated only
the total bid amount, therefore, it was not required for him to furnish the price analysis.
But despite of receipt of the same, opposite party again vide his letter dated 17.3.2009
made communication with the petitioner for furnishing the analysis of rates for all the
items except Item Nos.9, 18, 24 and 25.
3. It is submitted that in view of the said reply dated 9.3.2009, further communication
on 17.3.2009 was unwarranted, but in spite of the said fact petitioner submitted the price
analysis on 24.3.2009 vide Annexure-5. It is the further case of the petitioner that he
being the lowest tenderer as per the provision of law, he would have been awarded the
work by entering into an agreement to start the project work. Despite the work order
issued, no agreement was executed without assigning any reason and opposite parties
are sitting over the matter even though the petitioner has already deposited the required
EMD as specified in DTCN. Again the petitioner submitted reply to the notice dated
5.4.2009 in pursuance to the notice under Annexure-4 stating that in view of the reply
letters under Annexures-3 and 5 no further analysis of rate is required to be furnished to
the opposite parties. It is submitted that opposite parties with an ulterior motive are not
executing the agreement in favour of the petitioner and it is learnt from reliable source
that they want to give the work to a person for their choice by retendering the project
work and it was found to be true when it was published in daily news paper ‘Sambad’
dated 22.9.2009 inviting tender under Annexure-7. After going through Annexures-1 and
7, it is clear that the execution of work in both the tender call notices are same except
excavation of Kanpur Main Canal from RD 3900 Mts. To 4890 Mts. including
construction of cut and cover and from 6840 Mts to 7050 Mts including CD No.11 (at
RD-6945 Mts) to Kanpur Irrigation Project with estimated cost of Rs.4225.16 lakhs.
4. It is further submitted that the action of the opposite party No.2 is mala fide for the
reason that he had retendered the very same project work vide Annexure-7 by adding
two to three items which is uncalled for, without indicating any reason as to why work
order can not be issued to the petitioner though his tender offer was lowest among the
three bidders. It clearly established the mala fide action on the part of the opposite
parties, therefore, the re-tender notice under Annexure-7 is liable to be quashed.
5. The opposite parties have filed a detailed counter affidavit sworn to
by one Rohita Kumar Sethi, Executive Engineer, Kanupur Canal
Division, Jhumpura, in the district of Keonjhar, traversing all the
averments of the petitioner and denying the allegation made in the writ
petition contending that petitioner is not entitled for the relief as prayed
for in the writ petition by assigning various reasons. It is admitted that
the bid offer of the petitioner was lowest one, but the rates quoted by the
petitioner in Item Nos. 3,7,13,14 & 27 were less by more than 10% and
items 3, 7, 13 & 27 were less by more than 25% of the estimated rates,
where as the rates in respect of item Nos. 1,2 4, 5, 10, 12, 15, 16, 19, 20
and 23 were excess by more than 25% over the estimated rates. The
project Level Technical Committee analyzed the three major items,
namely, item No.5 (Excavation of all kinds of soil (AKS), Item No.6
(Excavation of D.I.) and Item No.7 (Excavation of Hard Rock (HR) by
blasting) with quoted rates of Rs.70/- -Cu.M., Rs.70/- Cu.M. & Rs.135/-
Cu.M.respectively being 52.84% excess, 19.06% excess and 31.6% less
than the estimated rates respectively and found that the analysis of item
No.5 & Item No.7 are not based on reality on comparison of cost of
excavation and transportation between AKS and Hard Rock. The tender
Committee apprehended that since the quantity of Hard Rock coming
under ground has been assessed tentatively basing on drill data, the
quantity may vary during execution and if the quantity of hard rock
decreases by 39,737 Cu.M. with corresponding increase or AKS and D.I.
relative position of tender will change. Basing on the assessment of the
PLTC, the members of the tender Committee meeting held on 25.06.2009
at Government level felt that since the estimate had not been prepared
properly by the petitioner and the quoted rates of the bidder were
seriously unbalanced, irrational and speculative and tender should be
rejected as per para 3, 5, 18 of the OPWD Code Vol.-I. Accordingly the
Government in the Department of Water Resources vide its letter bearing
No. IIT-KIP-1/2009-22468/WR, BBSR dated 25.08.2009 ordered to reject the
bid and to invite fresh bid after preparing proper estimate and classifying the soil
properly. It is stated that unless the said document is quashed the re-tender notice can
not be quashed. As the e-procurement notice inviting Bid Identification No.CCE, KIP
(KCD-01/2008-09 dt.31.10.2008 was cancelled on 07.09.2009 and intimated to all
concerned vide the office Letter No. 4167/WE dt.07.09.2009 and further it is stated that
as there was a stipulation in the Tender Call notice that the authority reserves the right to
reject any or all tenders without assigning any reason thereof as per Para 3,5,18 of the
OPWD Code Vol-I and since the work value is more than Rs.7.00 crores and the
Government is the approving authority as per amendment to Para 6,3,15 of OPWD
Code Vol-I, question of issuing the work order in favour of the petitioner by the opposite
party after executing contract does not arise.
6. It is further stated that if quantum of rock is less by 39,737 Cu.M. the petitioner will
no more be the first lowest for which the detailed price analysis was asked for, from him,
but he has failed to furnish the same despite repeated reminder letters issued to him.
Since the petitioner did not furnish the price analysis of items in response to Annexure-
IX, he was reminded again vide letter No.1370 dated 17.03.2009 by the Chief
Construction Engineer, Kanupur Irrigation Project to furnish price analysis of all items
which are more than 10% excess or more than 10% less except items 9,18,24 & 25 as
he had submitted irrational rates in different items and the rate of excavation by means
of excavator is also found to be excessive. The carriage change of rock should be more
than that of soil charge. Therefore, the analysis was not based on reality and due to non-
submission of the required price analysis by the petitioner despite repeated
communication by the opposite party No.2, the bid offered by the petitioner was
cancelled and opposite parties re-tendered the same. Further the State Government in
the Department of Water Resources vide its letter dated 8.5.2009 instructed to ask the
petitioner to clarify as to how he will execute the work when the rates quoted by him are
seriously unbalanced along with the detailed analysis of rates in all items as
recommended by the Tender Committee as per the proceedings of the Tender
Committee under Annexure-P. Pursuant to the same, opposite party No.2 vide his letter
dated 14.5.2009 intimated the petitioner to clarify the same as desired by the Tender
Committee. Reminder was also issued to the petitioner, but despite the same the
petitioner did not furnish price analysis as required by the Committee to examine as to
whether he can execute the work by balancing both excess and less rates. Since he did
not furnish the price analysis, the State Government had no option but to cancel the
same and ask the opposite party No.2 to re-tender the work, which has been challenged
in this writ petition urging various contentions, which are wholly untenable in the eye of
law and therefore, this writ petition is required to be dismissed. Further, the decision in
cancelling the bid offered by the petitioner is taken by the State Government and
thereafter the present re-tender notification has been issued.
7. This Court has passed the interim order dated 20.10.2009 stating that the tender
process pursuant to Annexure-7 shall not be finalized without leave of this Court till the
next date of listing of the case. Thereafter this case was listed on 11.5.2010 on the basis
of a Miscellaneous Application filed by the opposite parties seeking vacation of stay
order. However, on the request of the learned counsel for the parties matter was taken
up for final hearing.
8. We have heard learned counsel for the parties and perused the records. After
hearing the case on merit and considering the fact situation of the case, now the
questions that would arise for our consideration are (1) whether the petitioner is entitled
for issuance of a writ of certiorari quashing Annexure-7 without challenging the
cancellation of the bid offered by the petitioner vide order dated 25.08.2009? ; (2)
whether the petitioner has got right to question the re-tender notification in view of the
right reserved in the tender call notice to reject the offer that the bids offered by the
tenderer even if it is less than the estimated cost and lowest as compared to other
tenderers are required to be accepted and execute the contract in his favour for
execution of the project work; and (3) what order ?
9. In our considered view, all the aforesaid questions are required to be answered in
favour of the opposite parties and against the petitioner for the following reasons.
10. It is an undisputed fact that the financial bid offered by the petitioner pursuant to
Annexure-1 was examined by the Tender Committee and as it was found by it that the
rates quoted by the petitioner in respect of most of the items were seriously unbalanced
and estimate had not been prepared properly, he had been called upon to submit the
price analysis with reference to his rates quoted keeping in view the nature of excavation
of the rock and works to be executed. Despite repeated reminders and opportunities
given to the petitioner, he did not submit his item wise price analysis as required by the
Committee to justify his stand. Therefore, the State Government with reference to the
relevant clause 3.5.18 of the OPWD Code Vol.-I has taken a decision to reject the bid
offered by the petitioner and the same has been rightly communicated to the petitioner
vide its letter dated 25.08.2009. But even after receiving the said cancellation order
petitioner did not take any steps to challenge the same. Therefore, the said order has
become final and as the said order has become final, after cancellation of the bid offered
by the petitioner in respect of the project work notified in Annexure-1, the fresh tender
call notice was rightly published as per Annexure-7 in the daily news papers and the
same cannot be quashed on the mere alolegation made by the petitioner that the
opposite parties have some mala fide intention to award the contract in favour of the
person of their own choice and this allegation of the petitioner cannot be accepted by
this Court.
11. Having regard to the quantum of the work and the estimated cost to the tune of
more than Rs.7.00 crores, the decision making power vests with the State Government
as to whether the financial bid of the petitioner can be accepted or not. It is the State
Government which has taken a decision after calling upon the opposite party No.2 to ask
the petitioner to submit his price analysis as desired by the Tender Committee as it was
found that the rates quoted by the petitioner in various works and items are unbalanced.
But, the petitioner had failed to furnish the same as pointed out by the Tender
Committee, his bid was cancelled and re-tender notice was issued. It is very much clear
that after giving due opportunity to the petitioner for submitting price analysis, his bid
was cancelled and re-tender notification was issued. Further, issuance of re-tender
notification is permissible in law, in view of the right reserved by the tender inviting
authority in the tender call notice. The State Government being the tender accepting
authority having regard to the quantum of work and the estimated costs of the project
work being to the tune of more than 7.00 crores has rightly taken a decision invoking the
clause of OPWD Code. The said decision of the State Government, having regard to the
facts and circumstances of the case, cannot be termed as arbitrary and unreasonable as
contended by the petitioner.
12. For the reasons stated supra and considering the facts and circumstances of the
case, we are of the view that the petitioner has not made out a case for our interference.
On the other hand he has approached this Court, without challenging the cancellation
order of the bid offer, questioning the correctness of the re-tender notice urgine various
legal contentions which are untenable in law.
13. In view of the aforesaid facts, we do not find any cogent reason whatsoever to
interfere with the action of the opposite parties in cancelling the bid offered by the
petitioner pursuant to tender call notice under Annexure-1 and thereupon issuing re-
tender notification under Annexure-7. Accordingly the petition is dismissed. The interim
order dated 20.10.2009 stands vacated. It is open for the opposite parties to proceed
with the tender process in accordance with law.
Writ petition dismissed.
