MEGA ELECTRICALS-JOINT VENTURE WITH DIHANG EDUTECH INFRASTRUCTURE PVT. LTD. AND ORS. Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) PURSUANT to notice inviting tender dated 31.7.2014 for settlement of a contract work involving construction of 33 KV line under Kalain Electrical Sub -Division of Cachar Electrical Circle, the Tender Purchase Committee of the APDCL (hereinafter referred to as 'the TPC') adopted resolution on 13.11.2014 to award the contract in favour of respondent No. 10, M/s. Jayanta Khound Joint Venture with Win Power Pvt. Ltd. Writ petitioner claiming to be the lowest bidder in the tender process has challenged this resolution by filing present writ petition. On 21.11.2014 while issuing notice of motion, this court passed an interim order permitting the official respondents to proceed with the selection procedure but not to issue work order. By filing an affidavit -in -opposition, the official respondents have brought on record that the selection procedure has been over and the Board accepted re -commendation of the TPC on 20.12.2014. The writ petitioner, therefore, filed an application praying for amendment of the writ petition so as to challenge the decision of the Board taken on 20.12.2014 whereby impugned resolution of the TPC was approved. The amendment was allowed after hearing both sides and thereafter the main writ petition has been taken up for hearing. The writ petition, therefore, requires adjudication as to legality and validity of not only the resolution dated 13.11.2014 adopted by the Tender Purchase Committee but also the decision of the board adopted on 20.12.2014 accepting the recommendation.

(2.) THE writ petitioner is a joint venture of three units, namely, Mega Electrical, Dihang Edutech Infrastructure Pvt. Ltd. and Borooah Real Estates and Commercial Pvt. Ltd. The writ petitioner along with six others participated in the tender process initiated by Notice Inviting Tender (herein after referred to as "NIT") dated 13.7.2014. By that NIT, sealed tenders were invited from experienced and financially sound electrical contractors (individual or joint venture or firms having valid electrical contractor license upto 33 KV issued by the competent authority of the Government of Assam, inter alia, for construction of 33 KV line, augmentation of 33/11 KV S/S construction on power railway track crossing of 33 KV line under Kalain Electrical Sub -Division of Cachar Electrical Circle for providing service connection to flood light installation along India Bangladesh border in Assam. The NIT has been annexed as Annexure -1 to the writ petition. The NIT shows that the tender paper can be purchased in all working days upto 4 pm w.e.f. 4.8.2014 to 12.8.2014 from the office of the Chief General Manager (D), APDCL, CAR, Bijulee Bhawan, Paltan Bazar and can also downloaded from the official website within the same period. Date of submission of tender has been shown as 1300 hrs. of 22.8.2014. The date of opening of techno commercial bid is at 1330 hrs. on 22.8.2014 and price bid would be opened on a date to be notified later on. Clause -3 of the NIT shows that bids must be in two parts as techno commercial bid and price bid in two separate envelops superscribing (a) tender number (b) name of bidder with full address and (c) name of the package against which the bid is offered. In Clause -10 it was further mentioned that only those bidders whose part -I bid i.e. techno commercial bid is found acceptable, shall be considered for opening of the price bid, the date and time for which would be communicated to the eligible bidders in due course. It was mentioned that details can be seen in the official website of the APDCL which is www.apdcl.gov.in. The terms and conditions of the NIT are mentioned in separate sheet. As per recital of Clause -4 thereof, techno commercial bid will include defined vendors, scope of work, responsibilities, guarantees, specification of equipment, commercial terms and conditions, vendor's company credentials, experience of similar assignment, registration details etc. and the format for techno commercial bid is also furnished at Annexure -1 to the terms and conditions. The same clause defined price bid under a second sub -head. It shows that price bid will include rates of supply and erection of different items for electrification according to the BOQ. The format for this is also furnished at Annexure -2 of the tender document. In clause -6 it was mentioned that the evaluation of the bids will be carried out first of the techno commercial bid and thereafter opening the price bid of only those bidders who qualify and meet the technical requirements. At the same time it was mentioned that, the APDCL reserves the right not to order/award the job to pricewise lowest party if the party during any part of evaluation is found technically non -responsive. In clause -18 of the terms and conditions it was disclosed that funding of the project would be done by the Government of India. At the last paragraph -20, it was mentioned that the terms and conditions which are not specified in the tender document would be governed by the company's General Terms and Conditions of Supply and Erection. Thus, apart from the terms and conditions mentioned in the tender document the whole of the General Terms and Conditions of Supply and Erection (hereinafter referred to as 'General Terms and Conditions') would apply to the tender process in question.

(3.) ACCORDING to the writ petitioner, the TPC prepared a in -house estimate formula surreptitiously in respect of price so as to restrain the lowest bidder from coming into zone of consideration but no whisper of such procedure or estimated price was disclosed either in the tender document or in the general Terms and Conditions. All the bidders, under such circumstances quoted a competitive price as per their estimate following healthy competition but the respondent No. 4 acted against the modalities prepared by Central Vigilance Commission in subsequently making estimate and procedure. Annexing the circulars and office orders of Central Vigilance Commission, the writ petitioner claimed that the work in question being a centrally sponsored scheme, guidelines of the CVC is applicable in such a project. According to the writ petitioner, not only the guideline of the CVC, the official respondents did not follow their own guideline laid down in the General Terms and Conditions as well. Whole thing was done without following the principle of transparency and fairness and so selection of the respondent No. 10 is arbitrary and illegal and the same deserves to be set aside.