SUPERINTENDENT ENGINEER, RHD SYLHET Vs. MD. EUNUS & BROTHER (PVT) LTD.
LAWS(BANG)-2009-7-8
SUPREME COURT OF BANGLADESH
Decided on July 19,2009

Superintendent Engineer, Rhd Sylhet Appellant
VERSUS
Md. Eunus And Brother (Pvt) Ltd. Respondents

JUDGEMENT

MOHAMMAD FAZLUL KARIM,J. - (1.) These appeals by leave are directed against the judgments and orders passed by the High Court Division in making the Rules absolute with directions in Writ Petition Nos. 3570, 6895, 6456, 6461 and 6457 of 2003. In all these writ petitions the writ petitioner and the writ respondents are same and the writ petitions arose out of different tender contracts but containing the similar facts and circumstances and involving similar issues.
(2.) In Writ Petition No. 3570 of 2003 the letter bearing memo No. 5-532/1006 dated 19.03.2003 issued by the respondent No.1 (Annexure-D to the Writ Petition) relating to allowing the non-responsive tender bid of M/S. Abdus Samad and Janmabhumi Nirmata (JV) and Tel-Mi (JV) to be considered as responsive tender bid against the tender invited for bids for construction of 434.35 meter long PC. Girder Bridge on Dholi River at 34th K.M. (link Road) of Sylhet-Salutikar-Companyganj and Bholagonj High-Way under Sylhet Road Division of Sylhet Road Circle for the year 2002-2003 has been challenged.
(3.) That five parties/bidders having participated submitted the tenders, all the tenders were opened on the date fixed for the same. The respondent has alleged that the Superintendent Engineer, Roads and Highways Department, Sylhet Road Circle, Sylhet submitted a statement/report to the Additional Chief Engineer, Roads and Highways Department, Comilla Zone, Comilla for taking necessary action with his alleged recommendation vide Memo. No.5-384/880 dated 11.03.2003 that out of 5 tenders, the bid of responsive bidders namely, Messers Abdus Samad and Janmobhumi Nirmata (JV), (4) M/S. Mohammed Eunus and Brothers (Pvt.) Ltd. and TEL-ME-JV as responsive but the bid of Messers Abdus Samad and Janmobhumi Nirmata (JV) quoting 9,93,05,624.00 as the lowest bid and upon an evaluated rate the said bid stood at TK. 9,82,85,958.00 and recommended for the approval and necessary action enclosing the concerned papers of the bids though initially the bid of the writ petitioner, quoting rate at Tk.10,55,12,076.55, was allegedly found to be substantially responsive tender. Thereafter, on 19.03.2003 vide Memo. No.5-582/1006 the Superintendent Engineer sent an amended comparative statement for further consideration and necessary action to the additional Chief Engineer, RHD, Comilla Zone, Comilla. The writ-petitioner further alleged that upon opening the tender from a comparative statement the writ-petitioner also only shown responsive at TK.10,55,12,076.55 being the lowest quoting rate 7.68% of the Engineer's estimate finding it the only responsive tender and forwarded to the writ-respondent No.2 under Memo No. 5-384/5645 dated 28.12.2002 for acceptance. The respondent alleged that the remaining 4 tenders were found and reported to be non-responsive and defaulters to comply with the requirements of tender and in furnishing the necessary/required papers and documents including the "full particulars of the contractor's RHD registration book" which was decided at the 70th (2002-2003) meeting of RHD purchase committee. The respondent further alleged that while he was waiting to get the work order, as a right has accrued to him to get the same, he surprisingly come to know that the writ-respondent No.3 sent a letter to writ-respondent No.2 for correction of the tender price illegally by curing the defects of 2 bidders namely, M/s. Abdus Samad and Janmobhumi Nirmata and (JV) TEL-MI-JB who were earlier found non-responsive and defaulter and instructed them to furnish Photostat copy of full book of registration (neither original nor attested) to submit after the comparative statement/assessment was made on 28.12.2002 vide Memo No.263/1(5) dated 01.03.2003. That the respondent No.1 issued the impugned letter vide Memo No.5-535/1006 dated 19.03.2003 for awarding the contract in favour of M/s. Abdus Samad and Janmobhumi Nirmata (JV) instead of the writ-petitioner, Mohammed Eunus & Brothers (Pvt.) Ltd, the only alleged substantially responsive bidder has been denied his right to get the contract which is not tenable in law. The writ-petitioner further alleged that the tender of the writ-petitioner was found in order, responsive with due process of law and in terms and conditions of the tender schedule and as such the impugned letter (Annexure-D) is illegal, whimsical and not binding upon the writ-petitioner and as such the same is without lawful authority and is of no legal effect.;


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