Decided on July 14,2014

Sapara Dilip Bharatbhai Appellant


BHASKAR BHATTACHARYA, C.J. - (1.) BY this Public Interest Litigation, the writ -petitioner has prayed for quashing and setting aside the resolution dated 17th January 2014 empowering the respondent No.2, Surat Municipal Corporation the Corporation, hereafter. to enter into an agreement with the respondent No. 4, M/s Unique Construction Company, for construction of the Surat BRTS Phase 2, 2/3 lane flyover at Anuvratdwar Junction and Canal Road Junction at Udhana Magdalla road.
(2.) THE grievance of the writ -petitioner in this Public Interest Litigation is that the selected contractor, the respondent No.4 M/s. Unique Construction Company, Surat, should not have been awarded the contract as the selected contractor does not even possess the requisite qualifications prescribed in the tender notice. According the terms of the tender, the following are the requisite qualifications for taking part in the process of tender: - "3.1 EXPERIENCE a. The Applicant shall provide evidence that their firm has been actively engaged in the civil works construction of Flyovers and Bridges during the last 7 years in the role of prime contractor/partner. The Work completed as Sub Contractor shall not be considered for evaluation. b. Particular Construction Experience The applicant shall provide evidence that it has successfully completed or substantially completed within the last seven years completing on 31/03/2013. The works may have been executed by the Applicant as prime contractor or proportionately as member of joint venture. Substantially completed works means those works that are at least 90% completed as on 31/03/2013 and continuing satisfactorily on the date of application. For this, the Certificate from the employer shall be submitted along with the application incorporation clearly the Contract value -billing amount, date of commencement of works. Satisfactory performance of the contractor and any other relevant information should be forwarded in enclosed forms. The works completed/substantially completed during the current financial year will also be considered for counting the particular construction experience. 4. QUALIFYING CRITERIA OF APPLICANT The applicant who is not capable of meeting requirement listed below shall not be qualified for the works. Post qualification will be based on Applicants all the following minimum criteria regarding their particular experience, financial position, personnel and equipment capabilities and other relevant information as demonstrated by the Applicant's responses in the forms attached to the Letter of Application. The qualifications, capacity and resources of proposed subcontractors will not be taken into account in determining the Applicant's compliance with the qualifying criteria. The applicant to note specifically that all information given including those in the form of various formats must be supported by certificates from respective authorities not less than Executive Engineer or equivalent.. Certificates from private individual, for whom the bidder has worked, shall not be considered. Certificates from only those organizations/institutions/bodies will be considered which execute work in Public View and maintain verifiable records. As such, organizations/bodies from which the certificate will be considered are as follows: i. Government Departments, PSUs and other Government institutions. ii. Public Limited Company. iii. Private Limited Company. iv. Government recognized institutions. v. Cooperative registered with "Registrar of Cooperatives". vi. Partnership firm registered with "Registrar of Cooperatives". vii. Sole proprietary firms registered with "Registrar of Companies". However, the certificates should be on the organization's letter pad bearing contact address, telephone no. and fax no., email address etc. Further the certificates from sources listed from sr. no. ii. to vii. above, should invariably be accompanied with the proof of the organization's registration with, or recognition by Government, without which such certificates shall not be considered as adequate proof for the purpose of this letter. Public View is considered to be public works and thus "Similar Work" showcased must be public works carried out by Central, State or Local Governments, Public Sector Enterprises and Government companies for the benefits of Society/Public. a. Average Annual financial turnover during the last 3 years, ending 31/03/2013, should be at least 30% of the estimated cost I.e. 30% of Rs. 78.07 Crores = 23.42 Crores. b. Experience of having successfully completed similar works during last 7 years ending last day of month previous to the one in which applications are invited should be either of the following: i. Three similar completed works costing not less that the amount equal to 40% of the estimated cost I.e.40% of Rs. 78.07 Crores = Rs. 31.23 Crores. OR ii. Two similar completed works costing not less that the amount equal to 50% of the estimated cost I.e. 80% of Rs. 78.07 Crores = Rs. 39.04 Crores. OR iii. One similar completed works costing not less that the amount equal to 80% of the estimated cost I.e. 80% of Rs. 78.07 Crores = Rs. 62.46 Crores. AND iv. The Contractors/Companies having registration in class 'AA' State Govt. or Equivalent registration with Central Govt./CPWD/other State Govt./Semi Govt. Organization/MES. c. The Contractors/Companies having solvency certificate of National or Scheduled Bank amounting to Rs. 31.23 Crores of current year I.e. 40% of the estimated cost. Similar work shall mean construction of Fly Over Bridge for road or for railways or on river, in which they have successfully carried out the execution of work like pile foundation/Well foundation, Cast in Situ RCC Solid slab, precast, pre -tensioned, Prestressed concrete girders, Launching of girders etc. In case of large projects, executed on "package" basis, a separate detail of individual bridge work shall be given for the evaluation. In short, any Package chain of projects as a whole shall not be considered while evaluation. The execution of pile foundation and pres tressing in a single or separate job will also be taken into consideration. It is further to clarify that if any of works. is/are on hand with the applicant, but if the amount of the work done at the site is more than 90% of the total Project/Tender cost as on date I.e. 31.3.2013 then those works. will also be taken into consideration while evaluation. Following enhancement factors will be used for the cost of works executed and the financial figures to a common base for the value of the works completed in India. Year before Multiplying factor 2012 -13 1.10 2011 -12 1.21 2010 -11 1.33 2009 -10 1.46 2008 -09 1.61 2007 -08 1.77 2006 -07 1.95
(3.) ACCORDING to the petitioner, while selecting the respondent No.4 as the successful bidder, the Corporation has taken into consideration various works completed by the said respondent as subcontractor whereas according to the terms of the contract, work completed as subcontractor shall not be considered for evaluation. As pointed out in clause 3.1, the applicant should provide evidence that their firm has been actively engaged in the civil works construction of flyovers and bridges during the last 7 years in the role of prime contractor / partner, and, the work completed as subcontractor shall not be considered for evaluation. It is further alleged that the selected contractor has also not complied with the requirements of clause 4(b) of the terms of the tender quoted above, and it will appear from the documents submitted by the selected bidder that they worked mostly as subcontractor and in respect of only one transaction, they acted as a partner of a joint venture, but by virtue of that particular work, the condition specified in clause 4(b) are not complied with.;

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