Decided on December 10,2020

Ascenoer Lift And Automation Private Limited Appellant


BISWANATH RATH,J. - (1.) This Writ Petition is filed seeking a direction from this Court to set aside the order dated 19.08.2019 in cancellation of the tender call notice vide Annexure-4.
(2.) Short background involved in this case is that petitioner being a private company is incorporated under the Companies Act and represented through its Chairman. The O.P.2-the Chief Engineer, Orissa State Housing Board floated the tender call notice at a cost of Rs.1,26,50,000/- for work and supply with installation / testing and commissioning of 8nos. of 6 passenger lift and one number of 8 passenger lift including supply and installation of Servo Stabilizer and Comprehensive Annual Maintenance (CMC) for two years excluding the OEM provided warranty period of lift for the work of multistoried residential apartment (LIG Block) Phase-VII at Dumduma, Bhubaneswar. In the tender call notice eligible criteria of the bidders has been specifically stated in clause-2 and prior to participation in the tender the bidders were advised to verify the spot. Copy of the tender call notice is at Annexure-1. Meeting with the eligible criteria petitioner submitted all required documents before the O.P.2. It is stated that the Tender Committee accepted the proposal submitted by the petitioner. There were 8 agencies who had applied pursuant to the tender call notice and the Tender Committee rejected the proposals of Omega Elevator, Kumar Elevator and M/s. Bharat Elevator as they are not technically qualified on the basis of insufficient experience, but however, selected M/s. Arohi Elevator, M/s. LT Elevator and the petitioner as they were qualified technically and after these parties technically qualified the Tender Committee considered the financial bid. In the financial bid petitioner as well as one Arohi Elevator Private Ltd. quoted their percentage i.e. 14.99 and both of them were selected as L-1. As there were two parties standing at L-1, the Tender Committee entered into a lottery process between Arohi Elevator and the petitioner and in the process, petitioner became the successful bidder. Pleadings made in this Writ Petition further discloses that in spite of depositing of a sum of Rs.1,26,500/- towards EMD by the petitioner, the O.P.2 did not issue the work order in favour of the petitioner and ultimately the petitioner came to know that the O.P.2 has cancelled the tender notice vide its order dated 19.08.2019 without assigning any reason and also without even communicating the same to the petitioner. It is submitted that petitioner could only get the information about cancellation of the tender notice through the Notice Board of the party concerned.
(3.) Taking this Court to the grounds raised in the Writ Petition, Sri Mishra, learned counsel for petitioner contended that the cancellation decision of the authority is otherwise illegal, arbitrary and contrary to law. It is further contended that for the tender process having been concluded after entering into lottery process and once the petitioner stood at L-1 this is a concluding decision of the authority, it will be amounting to completion of the tender procedure and after which, there is no scope for cancelling the tender process. Further, it is also urged by Sri Mishra that the cancellation notice having not assigned any reason of cancellation the impugned notice vide Annexure-4 is otherwise bad in law. Taking this Court to the heavy investment in participation of the tender process and consumption of time, Sri Mishra, learned counsel for petitioner also contended that after so much development it becomes illegal to go behind such decision that too having no reason for such cancellation and such cancellation order makes huge financial loss to the petitioner. Sri Mishra, learned counsel for petitioner further contended that looking to the development already taken place upto selection of the petitioner as L-1 and the deposit already made, the authority at least should have given opportunity to the petitioner before issuing such cancellation order. On the basis of development taken place involving the issue involved in the matter, learned counsel for petitioner claimed that petitioner had already got a right involving the work order, which cannot be denied under any circumstance. Taking this Court to the rejoinder affidavit at the instance of the petitioner so also the averments made in I.A. No.15088 of 2019, learned counsel for petitioner giving reference to the provision under the OPWD code contended that after cancellation of the tender call notice, providing such work to Iron Triangles Ltd. is opposed by the provisions made by the State in the matter of contractual workings under the OPWD code and contended that such letter is opposed to their own provision through OPWD code, which has a binding force on all the parties concerned. Further, taking this Court to some contradictions in the counter affidavit learned counsel for petitioner also contended that the opposite parties do not come to the Court with clean hand.;

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