RAMESH CHANDRA SAMANTARAY Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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 downloading 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 (sic) 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.