M/S. BAIBHAW CONSTRUCTION PVT. LTD. THROUGH ITS DIRECTOR, ABHAY KUMAR Vs. THE STATE OF BIHAR THROUGH THE SECRETARY, WATER RESOURCES DEPARTMENT & ORS.

JUDGEMENT

(1.) Petitioner is aggrieved on rejection of its tender from the technical bid submitted pursuant to the tender bid notice No. 1/2011-12 in connection with the work of metallization of service road as detailed in tender vide Annexure-1. Petitioner is further aggrieved on execution of agreement for the said work with the respondent No. 4 allegedly in violation of the provisions of Article 299 of the Constitution of India. Besides the above petitioner alleges serious commission of forgery and fabrication of documents in allotting the work to the respondent No. 4 whereas the technical bid of the petitioner was rejected arbitrarily. Petitioner accordingly prays for a direction commanding the respondent No. 3 to decide the tender bid of the petitioner afresh in accordance with law. It is submitted on behalf of the petitioner that he was excluded from the technical bid on the ground that the petitioner was not having the requisite work experience as required under clause 4.5A(c) of the bid document. It was required that the successful bidder must have experience of work to the tune of 469128 MQ in any one of the preceding five years from the date of tender notice whereas the petitioner had the total work experience of 612312.298 MQ in the year 2009-10, and as such, excluding the petitioner from the technical bid was absolutely illegal and arbitrary. It was further submitted that the respondent No. 3 committed illegality in entering into agreement of the aforesaid work with the respondent No. 4 who had not submitted the tender and the agreement so entered was also violative of the provisions of Article 299 of the Constitution of India which prescribes the mode for entering into a Government contract and the agreement so entered with the respondent No. 4 was not expressed in the name of the Governor of Bihar nor the same was executed by the Executive Engineer of the concerned Division being competent authority.

(2.) Notwithstanding the above, it was submitted that in allotting the work to the respondent No. 4 the authorities have fabricated the document and thereby committed forgery.

(3.) On the other hand, learned counsel appearing for the State on basis of the statements made in the counter affidavit, seriously denied the allegations of the petitioner with respect to the work experience. It is contended that on perusal of the work experience vide Annexure-8 (series) it would appear that in none of the preceding five years the petitioner had performed the volume of work as required. It was further submitted that the authorities have considered the work experience and found that none of the certificates of work experience submitted by the petitioner discloses that in any of the year petitioner had completed the requisite work experience. As such, authorities in order to find out the total work experience bifurcated the total work experience of the petitioner in the relevant year in a bona fide manner and found that the petitioner had no requisite work experience in any one year in the preceding five years. It is accordingly submitted that since the petitioner got himself excluded from the technical bid it is not open for the petitioner to assail the agreement entered into with other qualified tenderers. The technical bid and financial bid of the respondent No. 4 was accepted considering four other tenderers who were qualified in technical bid, however, none of the unsuccessful bidder who were qualified in the technical bid assailed the agreement with the respondent No. 4. As regards allegation of forgery and fabrication of document although false the same cannot be gone into in a writ proceeding which involves the adjudication of serious disputed question of fact.