S S ELECTROGRIP PRODUCTS PRIVATE LTD AND ANOTHER Vs. ODISHA CONSTRUCTION CORPORATION LIMITED (OCCL) AND ANOTHER

JUDGEMENT

(1.) Petitioner no.1, a private limited company registered under the Companies Act, 1956, and petitioner no.2, being its authorized representative, have filed this application to cancel Notice Inviting Tender (NIT) No.03/OCCL/2017-18 dated 08.11.2017 in Annexure-1 and further seek for direction to the opposite parties to call for fresh tenders for the work in question by allowing participation of joint venture and/or consortium.

(2.) The Orissa Construction Corporation Limited (OCCL)- opposite party no.1 through its Managing Director invited online item rate tenders in double cover through e-procurement, vide notice no.03/OCCL/2017-18 dated 08.11.2017, for the work "dredging and removal of shoal no.1 at upstream of Mahanadi Barrage and disposal of dredged materials within 2.5 km through pipeline". The estimated cost of the tender was Rs.4929.18 lakhs and the period of completion was within 18 calendar months. The date of pre-bid meeting was fixed to 17.11.2017 and the date of opening of technical bid was fixed to 07.12.2017. With regard to date of opening of financial bid, it was indicated that the same would be intimated to the qualified bidders after evaluation of technical bid. In the column meant for class of contractors eligible to participate in the tender, it was mentioned as Class-I enlisted contractors of OCCL. Though petitioner no.1 was interested, it was deprived of participating in the tender process owing to the enlistment clause, which specifically allows the contractors/job workers enlisted under OCCL. Further, the tender notice also prevents participation of any joint venture and/or consortium. Petitioner no.1, though eligible to participate by virtue of being constituent of a joint venture and/or consortium, but in view of the aforesaid clause it could not, hence this application.

(3.) Mr. S.D. Das, learned Senior Counsel appearing along with Mr. H.P. Mohanty, learned counsel for the petitioners contended that floating of tender by OCCL inviting bids only from its enlisted contractors and prevention of participation of joint ventures and/or consortiums, is arbitrary, illegal and violative of Article 14 of the Constitution of India, i.e., right to equality, which speaks volume on the transparency of the tender process. It is further contended that since it is large contract, wider participation should have been permitted and thus restricting participation to individual participants and not joint venture companies, would be restrictive in nature. It is also contended that restriction of participation only to contractors enlisted with the corporation, would be detrimental to the interest of the corporation. To substantiate his contention, he has relied upon a judgment of the apex Court in New Horizons Limited v. Union of India, 1995 1 SCC 478.