SINGH ENTERPRISES Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present writ petition has been filed for quashing the tender cancellation notice dtd. 27/5/2021, issued under the signature of the Chief Engineer, Planning, Design and Monitoring, Urban Development and Housing Department, Government of Bihar, Patna (hereinafter referred to as the "Chief Engineer, Urban Development and Housing Department")whereby and whereunder the NIT bearing No. BUIDCo/Yo-1493/ 20-171 dtd. 1/9/2020 has been cancelled. The petitioner has further prayed for quashing the notice inviting retender for the Badhaiya I&D and STP project of National Mission for clean Ganga (hereinafter referred to as the "NMCG") bearing BUIDCo/YO/1493/20-22 dtd. 28/6/2021, issued under the signature of the Chief Engineer, Urban Development and Housing Department, as also for quashing that part of the Technical Bid Evaluation Committee Report dtd. 6/1/2021 whereby and whereunder the technical bid of the petitioner has been declared to be non-responsive only by observing that one of the JV partners of the petitioner, M/s EMS Infracon Pvt. Ltd., has been blacklisted and for consequently directing the respondent-BUIDCo to declare the petitioner as responsive in the technical bid, pertaining to NIT dtd. 1/9/2020 inasmuch as the aforesaid order of blacklisting has been quashed by the Hon'ble Patna High Court vide order dtd. 19/7/2021 passed in CWJC No. 9597 of 2021.

(2.) The brief facts of the case, according to the petitioner, are that National Mission of Clean Ganga has been established as a registered society i.e. responsible for the effective implementation of the overall National Ganga River Basin Authority Program at the National level. It is submitted that the entire programme of designing, developing, building, testing and commissioning of sewage treatment plant on the bank of river Ganga at Barahiya is funded entirely by the Central Government without any contribution by the State Government. The Respondent-BUIDCo, being the executing agency for implementation of the project of Namami Ganga on behalf of the NMCG, issued an NIT bearing BUIDCo/Yo-1493/20-171 dtd. 1/9/2020 for the project, pertaining to designing and building of sewage treatment plant etc., whereafter the petitioner had submitted its bid along with three others. The Technical Bid Evaluation Committee had then evaluated the technical bid of the bidders in its meeting held on 6/1/2021, however, the technical bid of the petitioner was declared to be non-responsive, though it was fulfilling all the parameters relating to technical qualifications and eligibility, merely on the ground that one of the JB partners of the petitioner, namely, M/s EMS Infracon Pvt. Ltd., was under blacklisting as on 6/1/2021 inasmuch as it had been blacklisted vide Order No. 7559 dtd. 4/11/2020. It is submitted that the bid of M/s Anodyne Water Engineering Co. Pvt. Ltd. was not evaluated since it had not submitted the bid document fees and as far as the other two bidders are concerned, they were declared to be technically non-responsive. Thereafter, the Respondent-BUIDCo had cancelled the aforesaid NIT vide notice dtd. 27/5/2021, under the signature of the Chief Engineer, Urban Development and Housing Department and a fresh Notice inviting retender of the aforesaid Barahiya I&D and STP Project was issued on 28/6/2021 vide NIT No. BUIDCo/Yo-1493/20-22, though on the letter head of BUIDCo but signed by the Chief Engineer, Planning, Design and Monitoring, Urban Development and Housing Department.

(3.) The learned Senior Counsel for the petitioner has submitted that the NIT dtd. 1/9/2020 for the Barahiya I&D and STP Project as well as the bidding documents clearly stipulate that the owner of the project is BUIDCo and the Owner's representative, as provided in Article 8.1.1 of the bid document, is the Design-Build-Operations Engineer, during the Design-Build period. It is submitted that nowhere in the entire bid document, the Chief Engineer, Planning, Design and Monitoring, Urban Development and Housing Department has been empowered to issue the tender cancellation order. In fact, the fresh tender notice dtd. 28/6/2021 has also been issued under the signature of the Chief Engineer, Planning, Design and Monitoring, Urban Development and Housing Department, hence, the same is without the authority of law.