B HIMMATLAL AGRAWAL Vs. WESTERN COALFIEDS LTD

JUDGEMENT

(1.) Rule returnable forthwith. Heard finally by consent of Shri. Bhangde, learned Senior Counsel, assisted by Shri. Samarth, learned Counsel for the petitioners, shri. Mehadia, learned Counsel for the respondent Nos. 1 to 3 and Shri. Manohar, learned Senior Counsel, assisted by Shri. Anjan de, learned Counsel for the respondent No. 4.

(2.) Shri. Bhangde, learned Senior counsel for the petitioners, contended that respondent No. 2 has published tender notice no. 6/2006-07 dated 2-5-2006, whereby sealed tenders were invited in two bid system for transportation of coal by hiring of equipment such as payloaders and tippers etc. from gondegaon O. C. Mines of Nagpur area to godhni Railway siding, from the experienced and reputed Contractors, who have in their name a prime Contractor experience of having successfully executed works of similar nature (Removal of coal from Face/coal transportation/wagon loading/removal of shale/removal of extraneous material etc. ) valuing 65% of the annualized value of the work put to tender in any year during last 7 (seven) years ending last day of month previous to the one in which bid applications are invited [annualized value of work is Rs. 14,33,18,500/- and 65% of the annualized value works to Rs. 9,31, 57,057. 50 say Rs. 9,31,57,0007-]. The learned Senior counsel for the petitioners further contended that the petitioners submitted their bid along with others, including respondent No. 4 as per the schedule mentioned in tender document. It was contended that condition No. 3 of tender documents stipulates qualification of tender. Clause 3. 1 contemplates that in the event pre-qualification of potential bidder or bidders has been undertaken, only bids from prequalified bidders will be considered for award of contract. These qualified bidders should submit with their bids any information updating their original pre-qualification applications or, alternatively, confirm in their bids that the originally submitted pre-qualification information remains essential correct as of the date of submission of bid. The learned Senior Counsel for the petitioners further contended that Clause 3. 2 of the tender document stipulates that if the employer has not undertaken pre-qualification of potential bidders, all bidders shall require to include the information and documents mentioned in clauses (a) to (k) with their bids. Shri. Bhangde, learned Senior Counsel submitted that the intending bidder was required to submit a declaration in support of the authenticity of the credential submitted by him along with the tender in the form of affidavit as per the format provided in the bid document as annexure A-1, as mentioned in the note in Clause 3. 2.

(3.) Shri. Bhangde, learned Senior counsel for the petitioners, further contended that Clause 3. 3 stipulates that the bidder, who shall fulfill the conditions mentioned in sub-clauses (a) to (d) of clause 3. 3 would qualify for award of contract. Those conditions are - (a) The intending tenderer must have in his name as a prime Contractor experience of having successfully executed works of similar nature (such as transportation of coal/removal of coal and wagon loading/removal of shale/removal of extraneous materials etc. for coal transportation) valuing 65% of the annualized value of the work put to tender in any year during 7 (seven) years ending last day of month previous to the one in which bid applications are invited. (b) Evidence of possessing adequate working capital (at least 20% of the annualized value of this work) inclusive of access to lines of credit and availability of other financial resources to meet the requirement. (c) Ownership of a fleet of minimum 1/3rd of the tipping truck/trucks and equipments required for the annualized work. (d) Financial turn over and cost of completed works of previous works shall be given a weightage of 5% per year (Average annual rate of inflation to bring them it at current price level). The learned Senior counsel for the petitioners contended that Clause 3. 4 of the tender document stipulates that sub contractors' experience and resources will not be taken into account in determining the Bidders' compliance with qualifying criteria.