MEGA ELECTRICALS Vs. UNION OF INDIA & ORS

JUDGEMENT

(1.) This intra-Court appeal is directed against the judgment and order dated 11.01.2018, dismissing WP(C) 117(AP)/2017 instituted by the appellant herein challenging order dated 11.03.2017 by which the appellant was informed of the rejection of its tender during financial evaluation by the duly constituted committee for reason of being the second lowest bidder (L-2). Challenge made to the said order dated 11.03.2017 as well as for a direction not to award the contract work to respondent no.9 was negated by the learned Single Judge.

(2.) On 11.04.2016, an Invitation For Bid (IFB) was issued in respect of the work, namely, "Rural Electrification works of Tirap district in Arunachal Pradesh under Deen Dayal Upadhyay Gram Jyoti Yojona (DDUGJY)". The execution of the said project is entrusted to the Department of Power, Arunachal Pradesh on behalf of the Government of Arunachal Pradesh, with financial assistance from the Rural Electrification Corporation Limited (REC)/Power Finance Corporation Limited (PFC). For the purpose of procurement activities related to the project, the Department of Power, Arunachal Pradesh is the 'Employer' and the Government of Arunachal Pradesh is the 'Owner'. The IFB involved adoption of a Single Stage Bid Envelope Bidding Procedure followed by e-bidding for price bids as detailed in the Bidding Documents. Both the appellant M/s. Mega Electrical, Guwahati and the respondent no.9 M/s. K.T. Enterprise, Naharlagun responded and participated in the tender process.

(3.) The price bid of admitted bidders were opened on 07.06.2016 and evaluation thereof was minuted by the Tender Opening and Evaluation Committee (TOEC) on 13.06.2016. The TOEC recorded that on evaluation of the price bid of the appellant it was found to be Rs.7,67,40,919.70, which is 7.54% below the estimated cost of the project put to tender. It was also recorded that the appellant had submitted the price break-down as per the required Bill of Quantity (BOQ) format. The relative ranking of the appellant on the basis of the system generated BOQ chart was found to be L-2. In so far as respondent no.9 M/s. K.T. Enterprises isconcerned, it was found that price quoted is Rs.7,46,97,299.47, which is 9.99% below the estimated cost of the project put to tender. Notwithstanding the fact that the relative ranking of the respondent no.9 as per system generated BOQ chart was found to be L-1, however, the TOEC observed that it did not submit the price break-down of the price bid in BOQ format and as required by the owner. In absence of the same, the basic rate, excise duty, CST, VAT and freight and insurance etc. of individual items and its total could not be ascertained. The TOEC opined that the bid quoted by respondent no.9 is not in compliance of Clause 11.3 and 11.4 of Vol-I Section-II, Instruction to Bidders (ITB) of the Bid Documents. The TOEC further observed that respondent no.9 had earlier defaulted under Clause 23.5, which pertains to non-acceptance of bid for failure to submit Performance Security, in connection with execution of Khonsa-Lazu package of RGGVY scheme under Deomali Electrical Division during 2010-11, thus rendering its bid for rejection. On such findings, the TOEC decided on rejection of the price bid of the respondentno.9 with concurrence of the competent authority. On a whole, the TOEC recommended the price bid of the appellant to be treated as L-1 for issue of Letter of Award (LoA).