BINU INDUSTRIES Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner, registered as a small scale industry (for short 'SSI Unit') has filed this Writ Petition questioning the legality and propriety in issuing a Tender Call Notice inviting tenders from civil contractors classified under the Orissa Public Works Department Code (for short OPWD) for the combined work of both civil and mechanical gate work, thereby depriving the SSI units. According to the petitioner, SSI units are competent to execute the mechanical gate work required for hydraulic structures like Escapes, Cross Regulators (for short CR) and Head Regulators (for short HR) which are sophisticated in nature and are designed only on workshops well equipped for the purpose. The said work being highly technical is required to be executed with precision. The SSI units with full -fledged mechanical workshop and experienced personnel with all infrastructure were entrusted to execute such mechanical gate work in the past. The SSI units established and registered under the Government of Orissa for execution of specific mechanical works, according to the Industrial Policy Resolution of Government, are entitled to some preferential treatment while entrusting the works of Government and public sector undertakings. The Tender Call Notice, vide Ext. 1, was issued by the Government of Orissa inviting tenders from Super -Class contractors for executing the work of 'Construction of HR, CR, Escapes and Service Road'. The said work was a composite package involving civil work and mechanical work and was to be executed at Rengali Irrigation Project. The work is funded by Overseas Economic Cooperation Fund. Government of India and the Government of Orissa. The petitioner seeks to quash the Tender Call Notice, Annexure -1, and prays for a direction to the Government of Orissa to bifurcate the civil work from mechanical work and entrust the mechanical gate work to SSI units.

(2.) ON behalf of the State, a detailed counter affidavit has been filed inter alia taking the stand that the work in question is a composite package; and as per the guidelines of Japan Bank of International Cooperation (for short JBIC) which has provided funds for execution of the said gate work, the work is to be entrusted to a Super -Class contractor and cannot be segregated. While repudiating the assertions made by the petitioner, it is stated that nowhere in the OPWD Code it has been stipulated to separate the mechanical work and civil work and award civil portion of work to civil contractors and mechanical portion of work to mechanical contractors. In short, the stand taken by the State is that in consonance with the guidelines of JBIC as the work of construction of Cross Regulators, Head Regulators, Escapes and Service Road is a composite package, the same cannot be segregated from one another and there is absolutely no illegality or irregularity in issuing the Tender Call Notice inviting tenders from Super -Class contractors with expert experience in executing similar type of works. The allegation that in order to deprive the SSI units of submitting their tenders to show favour to some Super -Class contractors, conditions have been stipulated in the Tender Class Notice is stoutly denied in the counter -affidavit.

(3.) LEARNED counsel for the State, at the other hand, submitted that the entire work, as would be evident from the minutes of discussion between the Overseas Economic Cooperation Fund, Government of India and Government of Orissa, vide Annexure - A/1, is a composite package consisting of both civil and mechanical works and in order to maintain uniformity one part of the work cannot be segregated from the other. It was further submitted that if civil work and mechanical work are entrusted to two different contractors, it would create unnecessary hindrance and would also lead to unsurmountable hardship, inasmuch as the work cannot be conducted in a synchronised manner. It would also be difficult to coordinate the works between the civil contractors and mechanical contractors and the quality of work would suffer considerably, creating adjustment problems. Failure of one contractor in a particular field or area would lead to chain reaction and disruption, thereby causing substandard work and also enorrenous difficulties. The State has also taken a stand that in consonance with the guidelines of JBIC, the funding bank, and in order to be assured of a full proof work, it was decided to call tenders for the entire work from expertised and experienced Super -Class contractors. The work of construction of HR, CR and Escapes of the canals of Rengali Irrigation Project is a very sensitive work and depends upon complete synchronization of civil and mechanical works. If the work is segregated and entrusted to two different contractors, it would not be possible to synchronize the same. Taking into consideration all these factors, the State Government decided to invite tenders only from Super -Class Contractors having expert experience in executing such type of sensitive works.