STATE OF UTTARAKHAND Vs. M M CONSTRUCTION JV

JUDGEMENT

(1.) ON 1st October, 2010, an advertisement was published by the Chief Engineer, Uttarakhand Rural Roads Development Agency (URRDA), Dehradun on behalf of the Governor of Uttarakhand, inviting percentage rate tenders from approved and eligible contractors, registered with PWD / CPWD or equivalent, for the works mentioned in the said tender under PMGSY and maintenance thereof for five years, after construction, through two bid system. One of the works advertised was package No. UT 02 - 01 / VIII and UT 02 - 06 / VIII, Bhanarlati to Namtichita Bagar, situated in the district of Bageshwar. The said advertisement mentioned that cost of bidding document in respect of the said work is Rs. 5,000/ - + 13.5% thereof, which is required to be submitted by Demand Draft. The said advertisement made it clear that bidding documents can be purchased from the offices mentioned in the advertisement or the same may also be downloaded from the website mentioned in the advertisement. It was stated that in the event bidding documents are downloaded, cost of the bidding documents shall be submitted in a separate envelope marked, "cost of bidding documents downloaded from the internet". There is no dispute that the last date of submission of bid was 16th November, 2010. On or before 16th November, 2010, Dalip Singh Adhikari submitted his bid and, while doing so in an envelope marked, "cost of bidding documents downloaded from the internet", tendered a Demand Draft for Rs. 5108/ -. On 19th November, 2010, technical bid was opened, when the said envelope marked, "cost of bidding documents downloaded from the internet" was also opened and it transpired that the same contains a Demand Draft of Rs. 5108/ - only and not of Rs. 5675/ -. On 19th November, 2010, Dalip Singh Adhikari deposited a further Demand Draft for Rs. 675/ - and thereby removed the deficiency in paying the cost of bidding documents. Removal of such deficiency was accepted by the tendering authority. After the technical bid was opened on 19th November, 2010, a notice was issued by the authority concerned and thereby it was indicated that Dalip Singh Adhikari has qualified in the technical bid. On 20th November, 2010, M/s M.M. Construction, who had also given a bid for the selfsame work, wrote a letter to the authority concerned and pointed out that Dalip Singh Adhikari could not succeed in the technical bid, in as much as he did not pay, on or before 16th November, 2010, the cost of bidding documents. Ignoring the said contention of M/s M.M. Construction, financial bid was opened on 23rd December, 2010 and thereupon the said work was awarded to Dalip Singh Adhikari. In the circumstances, M/s M.M. Construction approached this Court by filing a writ petition, contending that Dalip Singh Adhikari could not qualify in the technical bid, in as much as he had not paid the cost of bidding document on or before 16th November, 2010. By the judgment and order under appeal, a learned Single Judge of this Court has upheld the contention of M/s M.M. Construction and, accordingly, has quashed awarding of the work in question to Dalip Singh Adhikari. Aggrieved thereby, two appeals have been filed, one by Dalip Singh Adhikari and the other by the State of Uttarakhand.

(2.) IN the appeals, it appears to be the contention of the appellants that purchase of bidding documents is one thing and the bidder, being technically found eligible, is another thing. It is the contention of M/s M.M. Construction that a bidder will reach the stage of technical bid only when he has purchased the bidding documents. It is also the contention of M/s M.M. Construction that if the bidding document was not purchased by a bidder, question of accepting his bid, at any stage, did never arise.

(3.) IT is true that in terms of the advertisement itself bidders were made obliged to submit their bids in the bidding documents, which they were required to purchase. Bidding documents, according to the advertisement, could be had on payment of cash across the counter or the same could be downloaded from the website. In the event bidding documents are downloaded from the website, the cost of the bidding documents was required to be submitted in a separate envelope marked, "cost of bidding documents downloaded from the internet". In the advertisement, however, it was not indicated that the cost of the bidding documents, downloaded from the internet, should accompany the bidding document, either with the technical bid or with the financial bid.