P K CONSTRUCTION Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in this writ application calls in question the legality of the order in Annexure -5 issued by the opposite party No. 5 rejecting the security bid given by the petitioner and holding the tender as non -responsive in terms of ITB Clause 16.3.

(2.) CASE of the petitioner is that it is a joint venture firm and takes up different works in the State of Orissa. Opposite party No. 2 through the Orissa State Disaster Mitigation Authority (OSDMA) invited sealed bids for the work C.D.R. to Kartiachira Drainage System in Balasore District in Package No. ST/BLDS -I which was approximately valued at Rs. 1,87,38,140/ -. The petitioner being joint venture firm participated in the bid along with four others. The petitioner's bid being the lowest responsive bid, decision was taken to recommend petitioner's bid for approval and accordingly the Chief Engineer, Drainage Division, Cuttack (opposite party No. 2) forwarded the same to the opposite party No. 3. On 8.5.2003 the Tender Committee of opposite party No. 3 recommended petitioner's bid the World Bank Group (opposite party No. 5) for approval. On receipt of the said recommendation the Tender Committee of the World Bank Group sought for certain clarifications vide its letter dated 21.5.2003 from opposite party No. 3. Points on which clarification was sought for is that whether in a bid submitted in the name of Joint Venture, the bid security should be in the name of Joint Venture, whether the Joint Venture agreement is verified and found to be acceptable and further clarification was also sought for about the credit facility certificates. In response to the above queries, the opposite party No. 3 clarified the points raised by the opposite party No. 5. It was specifically mentioned by the opposite party No. 2 that as per clause 4.4. of the bid documents, bids from Joint Ventures are acceptable and minimum qualification criteria for each partner of the Joint Venture individually is not stipulated in the document, for which experience of M/s. S.N. Kanungo, the second partner of the Joint Venture was considered. It was also clarified that as per the requirements of Clause 16, bid security amount was made by means of bank guarantee from a nationalised bank and therefore should be accepted. However, in Annexure -5 the said recommendation was not accepted and the opposite party No. 5 observed that the bid security having been furnished by one of the partners of the Joint Venture and not having been given by the Joint Venture, the same violates the guidelines and accordingly the tender submitted by the petitioner ultimately should be treated as non -responsive, Challenging the said decision of the opposite party No. 5, this writ application has been filed.

(3.) CONSIDERING the nature of dispute as presented before this Court by both parties, it appears that the dispute only relates to the bid security which is admittedly furnished by one of the partners of the Joint Venture. Shri Rath, learned counsel appearing for the petitioner submitted that even though the bid security is furnished by one of the partners of the Joint Venture, the same should be accepted by the opposite parties in view of the fact that the entire purpose of keeping bid security is satisfied by furnishing bank guarantee, more so, when the bank itself by letter dated 29.5.2003 has clearly indicated that the bid security for the work concerned is valid and accepted by the bank even if P.K. Constructions has bided in name of its joint venture with M/s. S.N. Kanungo and bank guarantee having been issued in favour of the Executive Engineer, Drainage Division, Balasore and the same can always be encashed/invoked. Merely because bank guarantee has been furnished by one of the parties of the Joint Venture, the opposite parties were not justified in treating the tender of the petitioner non -responsive.