PROMOD KUMAR RATH Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner, a Super Class contractor, has filed this Writ Application for the following reliefs :

(2.) CASE of the petitioner is that he started his career as D Class contractor in the year 1971 and has upgraded up to a Super Class contractor since last four years. According to the petitioner, he has executed various contract works including construction of road, buildings and canals of various departments of the State Government to the satisfaction of the said department. Pursuant to tender call notice issued by the Opp. Party No. 2 and published in daily 'The Dharitri' on 21.3.2004 for execution of number of packages in Phase III (Part II) under the Pradhan Matri Grama Sadak Yojana Scheme (PMGSY).The petitioner submitted his tender in respect of two packages. Said tender papers were submitted by the petitioner in respect of Package Nos. OR 25 16and OR 25 18. Further case of the petitioner is that tender papers were divided into two parts, i.e., technical bid and price bid. Those who qualify in technical bid can only be considered for opening of price bid. Accordingly, technical bids of all the participants were opened on 22.4.2004 and technical bids submitted by the petitioner and the Opp. Party No. 5 were found to be acceptable. Thereafter, on 29.4.2004 price bids were opened and it was found that the petitioner was the first lowest tendered among three successful participants having quoted Rs. 2,30,02,000/ and the Opp. Party No. 5 was found to be the third lowest tender having quoted 20% in excess of the estimated cost. It is also the case of the petitioner is that the Opp. Party No. 3 after consideration of the price bid recommended the case of the petitioner in respect of Package No. OR 25 18. Opp. Party No. 2 who is the Chairman of the Tender Committee did not accept the recommendation on the basis of complaint received from an ex MLA of Phulbani and also a Member of Lok Sabha from Phulbani constituency and accordingly the Opp. Party No. 5 was recommended for the said work. Pursuant to such recommendation the tender of the Opp. Party No. 5 was accepted and an agreement was executed on 11.8.2004.

(3.) IN order to substantiate the grounds taken in the Writ Application, Learned Counsel for the petitioner drew attention of the Court to the counter affidavit filed by the Opp. Parties No. 1 to 4 as well as Opp. Party No. 5. So far as the first ground is concerned, it was contended by the Learned Counsel for the petitioner that in the technical bid, past performance of a contractor is also looked into and the petitioner having been found suitable after opening of the technical bid, his tender could not have been rejected on the ground that his past performance was not satisfactory. Learned Counsel for the State, in reply, did not dispute the statement that the petitioner was found eligible after opening of the technical bid, but contended that the award of contract does not rest on price quoted by a particular tenderer, but several other factors are to be looked into. According to the Learned Government Advocate, the Tender Committee is constituted of experts who are experienced enough to decide as to which tenderer would be most suitable for the work and while taking such a decision several factors are taken into consideration including the capacity of a tenderer to execute such work, availability of the required machineries for execution of such work, past experience of the tenderer in execution of such work as well as possibility of completing the work within the price quoted by him. According to the Learned Government Advocate, complaints were received from ex MLA and a sitting M.P. with regard to poor past performance of the petitioner and on receipt of such complaints, verifications were made and the allegations were found to be correct. Accordingly, the Tender Committee decided not to accept the tender of the petitioner. Shri S. P. Mishra, Learned Counsel for the Opp. Party No. 5 adopted the argument advanced by the Learned Government Advocate and further submitted that so far as allegations made against the Opp. Party No. 5 are concerned, on examination of papers it can be found that there has been delay in execution of work by Opp. Party No. 5 but such delay cannot be attributed to the Opp. Party No. 5 and therefore there has not been any discrimination between the petitioner and the Opp. Party No. 5 in the matter of consideration of tenders submitted by both of them. From Annexure 2 it is clear that in respect of Package No. OR 25 16 and OR 25 18 both the petitioner and the Opp. Party No. 5 were found to be qualified. From the procedure adopted for consideration of the tenders, it appears that the technical bids and the price bids are opened by the Superintending Engineer and on the basis of the same recommendation was made to the Tender Committee for further consideration. The Tender Committee consists of five members including the Chief Engineer of the concerned department and therefore the Tender Committee is competent to again scrutinize the technical bids as well as price bids before accepting or rejecting recommendation made by the Superintending Engineer. In view of the above, the petitioner cannot have a grievance to the effect that he having been found suitable in the technical bid, the Tender Committee could not have reconsidered the question of past performance. We are unable to accept such a ground as initially recommendation is made by the Superintending Engineer subject to the final decision of the Tender Committee and it is open for the Tender Committed to scrutinize all the technical bids as well as price bids to take a different view. We are, therefore, did not find any illegality in the conduct of the Tender Committee in considering the technical bids again before making a further recommendation to the State Government.