KAMAL SINGH DUGAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) A notice inviting tenders, in two bid system i.e. technical bid and financial bid, for shi-fting of Assam State Electricity Board (ASEB) line and sub-station including dismantling of existing circuit at different locations under the jurisdiction of SESD, SESD-I, SESD-II, SESD-III & UESD of CAEDCL to facilitate the construction work of Silchar by-pass road (Package No. NH(Elect)/SIL/2010- 11/04) with approximate value of Rs.608.22 lakh, was issued by the Chief Engineer, PWD (NH Works), Assam, on behalf of Governor of Assam, pursuant to which 3(three) bidders, namely, Shri Kamal Singh Dugar (writ petitioner), M/S Dutta Electricals (respondent No.5) and M/S Assam Electricals submitted their bids. The technical evaluation committee having found the bids of the writ petitioner and the respondent No.5 being responsive, the Addl. Chief Engineer, PWD (Electrical), Government of Assam, vide communication dated 09.05.2011 informed the writ petitioner and the respondent No.5 about the same and requested them to attend the office at the time of opening of the financial bids. The writ petitioner has challenged the decision of the technical evaluation committee as well as the decision of the respondent authority as communicated by the aforesaid communication dated 09.05.2011 to open the financial bid of the respondent No.5, on the ground that the bid of the said respondent being violative of the instruction to bidders (ITB), laying down the qualification, the decision to open its financial bid is illegal.

(2.) I have heard Mr. N. Dutta, learned Sr. counsel for the petitioner, Mr. U. Rajbangshi, learned standing counsel appearing for the respondent Nos.1 and 2 and Mr. D.K. Misra, learned Sr. counsel appearing for the respondent No.5. None appears for the other respondents.

(3.) MR. Misra, learned Sr. counsel appearing for the respondent No.5 submits that the 'qualification of bidders' as stipulated in clause 4.3 of the ITB are not the essential qualification required to be fulfilled by the bidders, so as to declare a bid of a bidder technically non- responsive for non-compliance of any of the clauses of 4.3 of the ITB. It has been submitted that in clause 4.5.3 of the ITB, the essential requirements to be fulfilled by the bidders are stipulated, which does not require completion of similar nature of single work in a single year during last 5(five) years, instead requires the experience in successfully completing or substantially completing at least one contract of similar nature electrical work, value of which is at least 40% of the value of proposed contract, within the last 5(five) years, and not in a single year. The learned Sr. counsel further submits that in case of a project, shown as experience and executed by a joint venture, if a member of such joint venture actually executed the work, the entire experience would be credited to him and consequently the entire value of such work has to be taken into consideration for the purpose of ascertaining the 40% of the value of the proposed work towards experience. In the instant case, according to the learned Sr. counsel, it is not in dispute that by virtue of the power of attorney executed by the joint venture, the respondent No.5 did execute the entire work of augmentation of 6(six) existing 33/11 KV sub-stations in Assam under the ASEB, value of which being more than 40% of the value of the proposed contract, the respondent authority has rightly found the bid respondent No.5 technically responsive. MR. Misra further submits that the technical evaluation committee having found that the respondent No.5 has executed the similar nature of electrical work and as such the bid of the respondent No.5 technically responsive, this Court in the absence of anything to the contrary may not record a finding that the project which was completed by the respondent No.5, by virtue of the power of attorney, is not of similar nature of the proposed work. The learned Sr. counsel, therefore, submits that no illegality has been committed by the respondent authority in finding the bid of the respondent No.5 as technically responsive and in deciding to open his financial bid.