TSEWANG GYATSHO KALEON Vs. STATE OF SIKKIM
LAWS(SIK)-2010-9-8
HIGH COURT OF SIKKIM
Decided on September 07,2010

TSEWANG GYATSHO KALEON Appellant
VERSUS
STATE OF SIKKIM Respondents

JUDGEMENT

DINAKARAN, J. - (1.) THE petitioners are registered Government contractors in the State of Sikkim and they claim that they have successfully completed various Government contracts, semi-Government contracts as well as private contracts. Accordingly, they filed their tenders pursuant to the `Notice Inviting Tender' published by the Urban Development and Housing Department, Government of Sikkim ON 14.05.2010. THE said Notice was also published in the Daily "Herald Classified" dated 17.05.2010 for the work namely, "Infrastructure Development for notified Slum Area, Singtam (IHSDP).
(2.) THE Notice Inviting Tender dated 14.05.2010 prescribes 34 conditions for submission of Tenders, suffice it to refer to condition No. 34, which reads as hereunder: "PRE-QUALIFICATION OF CONTRACTORS THE following criteria shall be required to be fulfilled by the interested bidders for Pre-Qualification. 1. Three similar works experience having successfully completed costing not less than the amount equal to 40% of the estimated cost put to tender OR Two similar works costing not less than the amount of 50% of the estimated cost put to tender. OR One similar work of aggregate cost not less than 80% of the estimated cost. 2. Average annual financial turnover on construction works should be at least 30 percent of contract value during the last three years ending 31st March, of the previous financial year. Profit/Loss account papers as on 31st March of the 3. previous financial year. 4. Solvency Certificate for an amount equal to 40 % of the estimated cost of work. THE interested bidders who fulfill the above Pre- Qualification criteria by way of submission of the required documents/ Certificates issued from relevant Authority/ Departments may only apply for the tender form. Certificates in case of Sl. No. 1 above should be supported by Work Orders." Concededly the said Pre-qualification of contractors, which is a condition precedent to submitting the tenders as per the said Notice Inviting Tender dated 14.05.2010, is in conformity with Section 11.6 of Chapter IV of Sikkim Public Works Manual, 2009, which reads as hereunder: "Prequalification of Contractors 11.6 Pre-qualification of contractors shall be resorted to in the following cases: (a) The estimated cost of the work exceeds Rs.10 crores. (b) The estimated cost of work is upto Rs.10 crores and the Principal Chief Engineer in his discretion and for recorded reasons decides to pre-qualify contractors on the following grounds: (i) The work is required to be executed speedily, which not all contractors are in position to perform. (ii) The work is of special nature requiring specialized equipments, which is not likely to be available with all contractors. (iii) The work is to be executed in sensitive VIP areas. (iv) Client has requested to restrict the tender. (v) Any exigencies of the work to be placed on record." (emphasis supplied) Obviously, since the petitioners did not have the said pre-qualifications, they could not participate in the tender, even though they furnished the relevant details. The Government then considered the merits and demerits of the other contractors who had applied for the work and ultimately granted the contract work in favour of the 6th respondent herein. Hence, being unsuccessful at the threshold, and also aggrieved, the petitioners have filed the present writ petition for issue of writ of Certiorari/ writ of Mandamus to quash the prequalification criterion prescribed under Section 11.6 (a), Chapter IV of the Sikkim Public Works Manual, 2009; the impugned prequalification criterion prescribed in the NIT of construction of Infrastructure Development for Notified Slum Area, Singtam (IHSDP); the impugned notice dated 19.07.2010 issued by the Respondent No. 3 thereby disqualifying the Petitioners to participate in the tender proceeding of construction of Infrastructure Development for Notified Area, Singtam (IHSDP); and to allow the Petitioners to participate in the tender proceedings of construction of Infrastructure Development for Notified Slum Area, Singtam (IHSDP).
(3.) THE writ petition was admitted by this Court on 27.07.2010. In the meanwhile, the second and the third respondents moved this Court with Civil Miscellaneous Application No. 67 of 2010, setting out the fact that the tender notice for the impugned contract work was published on 17.05.2010. Tenders offered by the eligible contractors and firms were opened on 21.07.2010 and finally the contract work was awarded to the 6th respondent after due scrutiny of the tenders submitted by the eligible contractors by the Tender Evaluation Committee. 6.2 According to respondents No. 2 and 3, if there is any delay in handing over the work on account of pendency of the writ petition, that would not only result in the escalation of total cost of the work but would also cause loss to the public exchequer and lot of public inconvenience. 6.3 Hence, the respondents No. 2 and 3 brought this Civil Misc. Application No. 67 of 2010 seeking permission to proceed with the above mentioned contract work entrusting the same to the 6th respondent. ;


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