AMLORY CONSTRUCTION PRIVATE LIMITED Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present writ application has been filed by the petitioner challenging the non - consideration of his tender consequent to arbitrary, illegal and mala fide rejection thereof and for wrongly considering the tender of an ineligible tenderer both of which allegedly were actuated by mala fide on part of respondent No. 2, the Superintending Engineer, Public Health and Engineering, Circle -Chapra, District -Saran who has also been made a party in person as respondent No. 5 and with a prayer that if the petitioners allegations are found correct then the Court may direct the competent authorities to initiate proceedings against the said respondent under the purview of the Bihar Prevention of Specified Corrupt Practices Act, 1983 alongwith other persons who may be involved therein.

(2.) THE petitioner is a registered Class - IA contractor and is a Company and undertakes various contracts. It is alleged that the Superintending Engineer, Public Health and Engineering, Circle -Chapra, District Saran (respondent No. 2) being Shri Arun Kumar Srivastava (respondent No. 5 by name) issued a notice inviting tender for construction of water tanks in the district of Gopalganj in four groups from eligible contractors vide tender notice No. 2/2006 - 07. Petitioner submitted his tender for Group - I and Group -Ill. Apart from petitioner, there were three other tenderers for the said two groups, namely, M/s J.P.Enterprises, Shri Anirudh Prasad and M/s Durgawati Enterprises. The tender was to be submitted in two parts. First part being a technical bid and the second part being the rate/commercial bid. It was clearly stated that a tenderer who qualified in the technical bid would only be considered tor the ultimate competitive bid in rate/commercial bid. The technical bid basically deals with qualification, suitability and competence which are eligibility conditions. The petitioner stated that on opening the technical bid, it was found that the tender of Durgawati Enterprises was invalid because of improper earnest money papers and was rejected outright. It was found that the other tenderer J.P. Enterprises had not submitted sales tax clearance certificate which was an eligibility condition in the tender notice. It is aiso asserted that the other tenderers Anirudh Prasad and the proprietor of J.P. Enterprises Shri Janardan Prasad are own brothers. This fact has been emphasized only to show that effectively there were only two tenderers left that is the petitioner on one hand and J.P. Enterprises and Anirudh Prasad on the other. It is then specifically stated that respondent No. 2, that is the Superintending Engineer Shri Arun Kumar Srivastava, made his intention dear by putting a demand for money failing which the petitioner was to be excluded. The petitioner protested and apprehending that on some wrongful pretext on the other, his technical bid itself would be rejected, thus, making him ineligible to participate in the financial/commercial bid leaving just J.P. Enterprises and Anirudh Prasad in the field with hardly any competition. The petitioner protested and on 24.7.2006 represented to the Secretary in the Department of Public Health and Engineering Department, Government of Bihar. He has further stated that his valid technical bid was ma/a fide rejected only to favour the other tenderer whose financial bid was higher than the petitioner which has not only caused loss to the petitioner but also to the State revenue. It was submitted that the original records of the tenders be called for which would reveal the aforesaid illegal actions.

(3.) IN the counter affidavit, a purported comparative statement (C/S) has been annexed. This document is a comparative statement of all the four tenders received and the evaluation of papers submitted in technical bid. To this, I will revert in greater detail but suffice to say at this point that the initial notings disclose that except for Durgawati Enterprises, all other tenders were found in order and were to be proceeded with. Suddenly, Executive Engineer disclosed that as per order No. 329 dated 26.6.2006 of the Superintending Engineer, the comparative statement is reexamined and it was found that the experience certificate of construction of RCC, water tower of the petitioner has not been attached and, as such, he does not qualify for the technical bid. On the reverse thereof, the relevant clause under which said certificate was required is shown as serial No. 31 of notice inviting tender. Notice inviting tender has been annexed as Annexure -A alongwith BOQ for the said tender which contains Clause 31 which is quoted hereunder: 31. Contractor having experience of construction of water -tower in Govt. Department or Organization within State of Bihar having registration in this deptt. will be given preference in deciding the tender.