JEE ENN ENGINEERS Vs. STATE

JUDGEMENT

(1.) The Government in order to further augment the drinking water supply to Sopore Town decided to commission Water Treatment Plant comprising of Pre-set-ting Tank, Flash Mixer, Clariflocculator and Filter House with all Mechanical/Electrical works as a composite unit including construction of 0.5 MG (5 Lac Gallons) capacity RCC clear water Reservoir at Sharkwara, District Baramulla. The Executive Engineer PHE Division Spore issued Gist of tender notice No. 25/PHE/Sopore of 10/2009. The tender notice was issued for and on behalf of the Governor, of J&K State wherein sealed tenders affixed with Rs. 5/- revenue stamps were invited for the aforementioned work as a turn-key job, on three cover system, as per detailed tender documents, from the registered PWD "A" Class Contractors/reputed firms/concerns having experience in the field of construction works of similar nature for which they were required to produce documents before issuance of tender document(s). The tender documents were to be received before 07th Dec. 2009 upto 3 P.M. in the office of Chief Engineer, Kashmir PHE Department. The date of the tender notice was extended and the last date for receipt of tender document was fixed 10th Feb. 2010. The petitioner submitted his tender document. The Contract Committee for fixation of Contract for "Design, Provision, Construction etc in its meeting held on 24th Jan. 2011 decided to put the aforementioned work to fresh tender on the ground that the concerned Executive Engineer had issued corrigendum on 20th Jan. 2010 and as per the Committee's decision same should have been done before short listing of contractors/agencies and should have been given wide publicity both in print and electronic media to facilitate the participation of more contractors/agencies in the NIT in first instance. The Chief Engineer Kashmir PHE send communication to Superintending Engineer circle Baramulla/Bandipora bearing No. PHE/DB/19076-79 dated 31.01.2011, wherein he was asked to direct the concerned Executive Engineer to invite fresh tender after discussing the case with Technical Cell of the directorate. It is this communication which is called in question in this writ petition on the ground that in the tender document for construction of the aforementioned work, in clause 2.15(a) (iii), it was provided that the average annual turnover for the last three years should not have been less than Rs. 100 lacs for similar type of work, which would mean that for each year the annual turnover should have been Rs. 100 /- lacs and for three years it would have been Rs. 300/- lacs and the corrigendum issued did not change the condition of the tender notice of which the tender document forms part and the decision to re-tender the work was made for malafide reasons of allotting the work to some blue eyed persons, notwithstanding this fact that the petitioner was a lowest tenderer.

(2.) Respondents 1 to 3, 10 and 11 have filed reply affidavit/objections in which it is stated, that the corrigendum made material change in the terms and conditions of the tender notice and same was required to be given wide publicity in order enable all those persons who would not have submitted the tender documents earlier on the understanding that they were not eligible to afford them opportunity to participate in tender process and it was decided to re-tender the work.

(3.) Heard Ld counsel for parties Considered the matter.