{"id":224535,"date":"2010-06-24T00:00:00","date_gmt":"2010-06-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramesh-chandra-samantaray-vs-unknown-on-24-june-2010"},"modified":"2014-06-29T14:23:51","modified_gmt":"2014-06-29T08:53:51","slug":"ramesh-chandra-samantaray-vs-unknown-on-24-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramesh-chandra-samantaray-vs-unknown-on-24-june-2010","title":{"rendered":"Ramesh Chandra Samantaray vs Unknown on 24 June, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
Ramesh Chandra Samantaray vs Unknown on 24 June, 2010<\/div>\n
                       V.GOPALA GOWDA, CJ & A.S.NAIDU, J.\n<\/pre>\n
                 W.P.(C) NO. 14499 OF 2009. (Decided on 24.6.2010).\n<\/p>\n
RAMESH CHANDRA SAMANTARAY                              ...........      Petitioner.\n\n                                          .Vrs.\nSTATE OF ORISSA.                                     ...........     Opp.Parties.\n\nCONSTITUTION OF INDIA, 1950 - ART. 226 & 227.\n\n<\/pre>\n
      For Petitioner – M\/s. J.M.Mohanty & R.K.Parida, P.C.Maharana,
\n                        M.Pani & R.K.Ray.\n<\/p>\n
      For Opp.Parties – Mr.R.K.Mohapatra,
\n                        Govt. Advocate.\n<\/p>\n
V.GOPALA GOWDA, CJ. This writ petition has been filed by the petitioner seeking
\nfor issuance of a writ of certiorari to quash the retendering notice vide Annexure-7 and
\nfurther to issue a writ of mandamus to the opposite party No.2 i.e. Chief Construction
\nEngineer, Kanpur Irrigation Project, Keonjhar direction him for issuance of a work order
\nin his favour in respect of the work covered under Annexure-1 tender notice by accepting
\nhis bid offer urging various facts and legal contentions.\n<\/p>\n
2. The brief facts, for the purpose of appreciating the rival legal contentions urged on
\nbehalf of the parties, are that opposite party No.2 published a tender notice both in
\nwebsite as well as in daily News Paper inviting on-line item rate tenders fixing the date
\nand time for submitting the tender paper from 10.11.2008 to 26.11.2008. The petitioner
\nafter down-loading the tender call notice from the website, submitted his tender
\ndocuments within the prescribed time. The estimated cost of the project was Rs.798.22
\nlakhs including excavation of Main Canal from R.D.1500 Mts. To 3120 Mts. In the tender
\npaper, petitioner has quoted his tender bid of Rs.7.18.477.83 which was 9.9% less than
\nthe estimated cost. There were three competitors including the petitioner for the said
\nproject work in question. It is the case of the petitioner that out of them, he was the
\nlowest bidder. The said financial bid was opened after the technical bid which was held
\non 28.11.2008 and it was found that the petitioner’s bid was the lowest one. As the
\nvalidity of the bid for the aforesaid work has already expired on 23.2.2009, opposite
\nparty No.2 vide his letter dated 26.2.2009 requested the petitioner to extend the validity
\nof the bid up to 30.06.2009 for processing of the financial bid with a further request to
\nhim to furnish the price analysis in support of the rate quoted by him at an early date, as
\nper the documents under Annexure-2. In response to the said documents petitioner
\nsubmitted his reply on 9.3.2009 (Annexure-3) stating that the total bid amount offered by
\nhim comes to less than 9.9% of the estimated cost, as a result of which his bid amount is
\nnot seriously unbalanced as per Clause 41 of the Detail Tender Call Notice (D.T.C.N.) of
\ntechnical Bid document. As per the said clause additional performance security was
\nrequired to be deposited by the successful bidder when the bid offered by him is
\nseriously unbalanced than the estimated cost in the tender call notice to the extent of the
\ndifferential cost of the bid amount and he had to submit 90% of the estimated cost in
\nshape of post office Saving Bank Account or National Savings Certificates (NSC). It is
\nfurther stated that there was no clause about the individual items and it indicated only
\nthe total bid amount, therefore, it was not required for him to furnish the price analysis.
\n But despite of receipt of the same, opposite party again vide his letter dated 17.3.2009
\nmade communication with the petitioner for furnishing the analysis of rates for all the
\nitems except Item Nos.9, 18, 24 and 25.\n<\/p>\n
3.     It is submitted that in view of the said reply dated 9.3.2009, further communication
\non 17.3.2009 was unwarranted, but in spite of the said fact petitioner submitted the price
\nanalysis on 24.3.2009 vide Annexure-5. It is the further case of the petitioner that he
\nbeing the lowest tenderer as per the provision of law, he would have been awarded the
\nwork by entering into an agreement to start the project work. Despite the work order
\nissued, no agreement was executed without assigning any reason and opposite parties
\nare sitting over the matter even though the petitioner has already deposited the required
\nEMD as specified in DTCN. Again the petitioner submitted reply to the notice dated
\n5.4.2009 in pursuance to the notice under Annexure-4 stating that in view of the reply
\nletters under Annexures-3 and 5 no further analysis of rate is required to be furnished to
\nthe opposite parties. It is submitted that opposite parties with an ulterior motive are not
\nexecuting the agreement in favour of the petitioner and it is learnt from reliable source
\nthat they want to give the work to a person for their choice by retendering the project
\nwork and it was found to be true when it was published in daily news paper ‘Sambad’
\ndated 22.9.2009 inviting tender under Annexure-7. After going through Annexures-1 and
\n7, it is clear that the execution of work in both the tender call notices are same except
\nexcavation of Kanpur Main Canal from RD 3900 Mts. To 4890 Mts. including
\nconstruction of cut and cover and from 6840 Mts to 7050 Mts including CD No.11 (at
\nRD-6945 Mts) to Kanpur Irrigation Project with estimated cost of Rs.4225.16 lakhs.\n<\/p>\n
4.    It is further submitted that the action of the opposite party No.2 is mala fide for the
\nreason that he had retendered the very same project work vide Annexure-7 by adding
\ntwo to three items which is uncalled for, without indicating any reason as to why work
\norder can not be issued to the petitioner though his tender offer was lowest among the
\nthree bidders. It clearly established the mala fide action on the part of the opposite
\nparties, therefore, the re-tender notice under Annexure-7 is liable to be quashed.\n<\/p>\n
5.    The opposite parties have filed a detailed counter affidavit sworn to
\nby one Rohita Kumar Sethi, Executive Engineer, Kanupur Canal
\nDivision, Jhumpura, in the district of Keonjhar, traversing all the
\naverments of the petitioner and denying the allegation made in the writ
\npetition contending that petitioner is not entitled for the relief as prayed
\nfor in the writ petition by assigning various reasons. It is admitted that
\nthe bid offer of the petitioner was lowest one, but the rates quoted by the
\npetitioner in Item Nos. 3,7,13,14 & 27 were less by more than 10% and
\nitems 3, 7, 13 & 27 were less by more than 25% of the estimated rates,
\nwhere as the rates in respect of item Nos. 1,2 4, 5, 10, 12, 15, 16, 19, 20
\nand 23 were excess by more than 25% over the estimated rates. The
\nproject Level Technical Committee analyzed the three major items,
\nnamely, item No.5 (Excavation of all kinds of soil (AKS), Item No.6
\n(Excavation of D.I.) and Item No.7 (Excavation of Hard Rock (HR) by
\nblasting) with quoted rates of Rs.70\/- -Cu.M., Rs.70\/- Cu.M. & Rs.135\/-
\nCu.M.respectively being 52.84% excess, 19.06% excess and 31.6% less
\nthan the estimated rates respectively and found that the analysis of item
\nNo.5 & Item No.7 are not based on reality on comparison of cost of
\n excavation and transportation between AKS and Hard Rock. The tender
\nCommittee apprehended that since the quantity of Hard Rock coming
\nunder ground has been assessed tentatively basing on drill data, the
\nquantity may vary during execution and if the quantity of hard rock
\ndecreases by 39,737 Cu.M. with corresponding increase or AKS and D.I.
\nrelative position of tender will change. Basing on the assessment of the
\nPLTC, the members of the tender Committee meeting held on 25.06.2009
\nat Government level felt that since the estimate had not been prepared
\nproperly by the petitioner and the quoted rates of the bidder were
\nseriously unbalanced, irrational and speculative and tender should be
\nrejected as per para 3, 5, 18 of the OPWD Code Vol.-I. Accordingly the
\nGovernment in the Department of Water Resources vide its letter bearing
\nNo. IIT-KIP-1\/2009-22468\/WR, BBSR dated 25.08.2009 ordered to reject the
\nbid and to invite fresh bid after preparing proper estimate and classifying the soil
\nproperly. It is stated that unless the said document is quashed the re-tender notice can
\nnot be quashed. As the e-procurement notice inviting Bid Identification No.CCE, KIP
\n(KCD-01\/2008-09 dt.31.10.2008 was cancelled on 07.09.2009 and intimated to all
\nconcerned vide the office Letter No. 4167\/WE dt.07.09.2009 and further it is stated that
\nas there was a stipulation in the Tender Call notice that the authority reserves the right to
\nreject any or all tenders without assigning any reason thereof as per Para 3,5,18 of the
\nOPWD Code Vol-I and since the work value is more than Rs.7.00 crores and the
\nGovernment is the approving authority as per amendment to Para 6,3,15 of OPWD
\nCode Vol-I, question of issuing the work order in favour of the petitioner by the opposite
\nparty after executing contract does not arise.\n<\/p>\n
6. It is further stated that if quantum of rock is less by 39,737 Cu.M. the petitioner will
\nno more be the first lowest for which the detailed price analysis was asked for, from him,
\nbut he has failed to furnish the same despite repeated reminder letters issued to him.
\nSince the petitioner did not furnish the price analysis of items in response to Annexure-
\nIX, he was reminded again vide letter No.1370 dated 17.03.2009 by the Chief
\nConstruction Engineer, Kanupur Irrigation Project to furnish price analysis of all items
\nwhich are more than 10% excess or more than 10% less except items 9,18,24 & 25 as
\nhe had submitted irrational rates in different items and the rate of excavation by means
\nof excavator is also found to be excessive. The carriage change of rock should be more
\nthan that of soil charge. Therefore, the analysis was not based on reality and due to non-
\nsubmission of the required price analysis by the petitioner despite repeated
\ncommunication by the opposite party No.2, the bid offered by the petitioner was
\ncancelled and opposite parties re-tendered the same. Further the State Government in
\nthe Department of Water Resources vide its letter dated 8.5.2009 instructed to ask the
\npetitioner to clarify as to how he will execute the work when the rates quoted by him are
\nseriously unbalanced along with the detailed analysis of rates in all items as
\nrecommended by the Tender Committee as per the proceedings of the Tender
\nCommittee under Annexure-P. Pursuant to the same, opposite party No.2 vide his letter
\ndated 14.5.2009 intimated the petitioner to clarify the same as desired by the Tender
\nCommittee. Reminder was also issued to the petitioner, but despite the same the
\npetitioner did not furnish price analysis as required by the Committee to examine as to
\nwhether he can execute the work by balancing both excess and less rates. Since he did
\nnot furnish the price analysis, the State Government had no option but to cancel the
\nsame and ask the opposite party No.2 to re-tender the work, which has been challenged
\n in this writ petition urging various contentions, which are wholly untenable in the eye of
\nlaw and therefore, this writ petition is required to be dismissed. Further, the decision in
\ncancelling the bid offered by the petitioner is taken by the State Government and
\nthereafter the present re-tender notification has been issued.\n<\/p>\n
7.    This Court has passed the interim order dated 20.10.2009 stating that the tender
\nprocess pursuant to Annexure-7 shall not be finalized without leave of this Court till the
\nnext date of listing of the case. Thereafter this case was listed on 11.5.2010 on the basis
\nof a Miscellaneous Application filed by the opposite parties seeking vacation of stay
\norder. However, on the request of the learned counsel for the parties matter was taken
\nup for final hearing.\n<\/p>\n
8.      We have heard learned counsel for the parties and perused the records. After
\nhearing the case on merit and considering the fact situation of the case, now the
\nquestions that would arise for our consideration are (1) whether the petitioner is entitled
\nfor issuance of a writ of certiorari quashing Annexure-7 without challenging the
\ncancellation of the bid offered by the petitioner vide order dated 25.08.2009? ; (2)
\nwhether the petitioner has got right to question the re-tender notification in view of the
\nright reserved in the tender call notice to reject the offer that the bids offered by the
\ntenderer even if it is less than the estimated cost and lowest as compared to other
\ntenderers are required to be accepted and execute the contract in his favour for
\nexecution of the project work; and (3) what order ?\n<\/p>\n
9.   In our considered view, all the aforesaid questions are required to be answered in
\nfavour of the opposite parties and against the petitioner for the following reasons.\n<\/p>\n
10. It is an undisputed fact that the financial bid offered by the petitioner pursuant to
\nAnnexure-1 was examined by the Tender Committee and as it was found by it that the
\nrates quoted by the petitioner in respect of most of the items were seriously unbalanced
\nand estimate had not been prepared properly, he had been called upon to submit the
\nprice analysis with reference to his rates quoted keeping in view the nature of excavation
\nof the rock and works to be executed. Despite repeated reminders and opportunities
\ngiven to the petitioner, he did not submit his item wise price analysis as required by the
\nCommittee to justify his stand. Therefore, the State Government with reference to the
\nrelevant clause 3.5.18 of the OPWD Code Vol.-I has taken a decision to reject the bid
\noffered by the petitioner and the same has been rightly communicated to the petitioner
\nvide its letter dated 25.08.2009. But even after receiving the said cancellation order
\npetitioner did not take any steps to challenge the same. Therefore, the said order has
\nbecome final and as the said order has become final, after cancellation of the bid offered
\nby the petitioner in respect of the project work notified in Annexure-1, the fresh tender
\ncall notice was rightly published as per Annexure-7 in the daily news papers and the
\nsame cannot be quashed on the mere alolegation made by the petitioner that the
\nopposite parties have some mala fide intention to award the contract in favour of the
\nperson of their own choice and this allegation of the petitioner cannot be accepted by
\nthis Court.\n<\/p>\n
11.   Having regard to the quantum of the work and the estimated cost to the tune of
\nmore than Rs.7.00 crores, the decision making power vests with the State Government
\nas to whether the financial bid of the petitioner can be accepted or not. It is the State
\nGovernment which has taken a decision after calling upon the opposite party No.2 to ask
\nthe petitioner to submit his price analysis as desired by the Tender Committee as it was
\n found that the rates quoted by the petitioner in various works and items are unbalanced.
\nBut, the petitioner had failed to furnish the same as pointed out by the Tender
\nCommittee, his bid was cancelled and re-tender notice was issued. It is very much clear
\nthat after giving due opportunity to the petitioner for submitting price analysis, his bid
\nwas cancelled and re-tender notification was issued. Further, issuance of re-tender
\nnotification is permissible in law, in view of the right reserved by the tender inviting
\nauthority in the tender call notice. The State Government being the tender accepting
\nauthority having regard to the quantum of work and the estimated costs of the project
\nwork being to the tune of more than 7.00 crores has rightly taken a decision invoking the
\nclause of OPWD Code. The said decision of the State Government, having regard to the
\nfacts and circumstances of the case, cannot be termed as arbitrary and unreasonable as
\ncontended by the petitioner.\n<\/p>\n
12. For the reasons stated supra and considering the facts and circumstances of the
\ncase, we are of the view that the petitioner has not made out a case for our interference.
\nOn the other hand he has approached this Court, without challenging the cancellation
\norder of the bid offer, questioning the correctness of the re-tender notice urgine various
\nlegal contentions which are untenable in law.\n<\/p>\n
13.     In view of the aforesaid facts, we do not find any cogent reason whatsoever to
\ninterfere with the action of the opposite parties in cancelling the bid offered by the
\npetitioner pursuant to tender call notice under Annexure-1 and thereupon issuing re-
\ntender notification under Annexure-7. Accordingly the petition is dismissed. The interim
\norder dated 20.10.2009 stands vacated. It is open for the opposite parties to proceed
\nwith the tender process in accordance with law.\n<\/p>\n
                                                    Writ petition dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Ramesh Chandra Samantaray vs Unknown on 24 June, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-224535","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nRamesh Chandra Samantaray vs Unknown on 24 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramesh-chandra-samantaray-vs-unknown-on-24-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramesh Chandra Samantaray vs Unknown on 24 June, 2010 - 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