- (1.) HCIL and HCLL (JV) a Joint Venture of M/s. Harish Chandra (India) Ltd. and M/s. Hardik Construction & Leasi'ng Ltd. and others have approached this Court questioning the validity of the decision dated 25th July, 2013 taken by the Tender Evaluation Committee constituted by the Chief Engineer (Construction), North Central Railway, Bhagirathi Building, Allahabad whereby the Pre -qualification Bid of petitioners have been rejected and further prayer has been made that the Pre -qualification Bid be accepted as responsive and their Techno -commercial Bid be considered and thereafter contract in question be awarded, accordingly, to the petitioners.
(2.) BRIEF background of the case is that Railways proceeded to float tender notice dated 25th April, 2013 inviting tenders for executing civil work of construction of road over bridge at NHAI Chainage 315142m Railway Chainage 4050m near Etawah on NH -2 Express Highway consisting of Reinforced Earth, Retaining Wall, RCC Boxes on approaches and construction of Railway span with RCC Boxes in connection with New BG Rail Line between Etawah and Mainpuri. In the top sheet of the tender documents approximate cost of the work was quoted as Rs. 33.81 Crore and the earnest money of Rs. 18,40,600/ - was required to be deposited by the bidder/tenderer. The last date/time of receipt of tender was stipulated upto 1500 hrs on 29.05.2013. The date of opening of tender was stipulated at 1530 hrs on 29.05.2013 in the office of Chief Administrative Officer (Construction), North Central Railway, Bhagirathi Building, Allahabad. The top sheet of the tender documents also proceeded to ask for as to when was the partnership constituted and deed executed, whether attested copies of partnership deed and power of attorney furnished with the tender and details were also required to be furnished and the working contractors were required to submit a list of works executed/now being executed by them with their value and agreement number with the tender and name and address of party to whom the tender sold was also liable to be disclosed. Tender form, first sheet also clearly proceeded to mention that the terms and conditions of tender attached has been read and the tenderer undertakes to abide by the said conditions. First Sheet in question is followed by Special Tender Conditions and Instructions to Tenderers. Relevant extract of the special tender conditions and instructions to tenderers are hereby quoted below; "2. TENDER DOCUMENTS 2.1 SUBMISSION OF TENDERS. 2.1.1 The tender documents consist of (a) Top Sheet (b) Tender form (First sheet) (c) Special Tender Conditions and Instructions to tenderer/s (d) Special Conditions Relating to Site Data and Specifications (e) Schedule of Items, Rates, and Quantities. These must be submitted together as one set, failing which the tender is liable to be rejected. 2.1.2 Tender documents can be had from the office of of in the office of the Chief Administrative Officer/Construction/North Central Railway, Bhagirathi Building GM office Complex, Subedarganj, Allahabad as well as Deputy Chief Engineer/Construction/NCR, opposite Jhakarkati Bus Stand, Kanpur, on any working day from 1000 hrs to 1500 hrs up to 28.05.2013 on cash payment of Rs.10000/ - (Rupees Ten thousand) +12.5% VAT only per set, if the same are required by post, an additional sum of Rs.500/ - (Rupees Five Hundred) only should be deposited towards postal charges. The cost of this tender form is not refundable and the tender form is not transferable. Tenders requested by post will be sent on the risk of the applicant. 2.1.3 Tender documents will also be available on the net and can be down loaded from Railway Web site www.ncr.indianrailways.gov.in. and htpp://tenders.gov.in In case of down loading of tender form, from Railway's web site or India Govt web site, the cost of tender form should be submitted through demand drafts in favour of FA&CAO/C/NCR/Allahabad along with the tender, otherwise tender will not be considered. 2.1.4 These tender documents must be submitted duly completed in all respects in a sealed cover superscribed as tender form for the work and should be deposited in the Tender Box in the office of the of in the office of the Chief Administrative Officer/Construction/North Central Railway, Bhagirathi Building GM office complex, Subedarganj, Allahabad and CAO/Indian Railway Project Management Unit,(IRPMU), Shivaji Bridge, behind Shankar Market, New Delhi. up to 15.00 hrs on 29.05.2013. The tenders will be opened on same day at 15.30 hours thereafter and Packet -A (Pre -qualification Bid) should be opened in presence of such tenderer/s as is/are present and Time and date for opening the SECOND PACKET i.e. ''Techno Commercial BID' of only those tenderers who qualify in Pre -qualification Bid shall be communicated subsequently. Tenders which are received after the time and date specified above may not be considered. In case the intended date for opening of tenders is declared holiday, the tenders will be opened on the next working day at the same time. Tenders sealed and superscribed as aforesaid can also be sent by registered post addressed to the of in the office of the Chief Administrative Officer/Construction/North Central Railway, Bhagirathi Building GM office complex, Subedarganj, Allahabad but tender received after the time and date specified in Clause 2.1.3 above is liable to be rejected. Any tender delivered or sent otherwise will be at the risk of the tenderer/s. 2.1.5 (a) TENDER BID The Tender Bid shall be submitted in only two separate sealed covers as under: Packet -A Pre -qualification element of the tender bid, herein after called "Pre -qualification Bid" Packet -B Technical, Commercial and Price elements of the Tender Bid herein after called "Techno commercial Bid". The details to be included in Pre -qualification Bid (Packet A) AND Techno Commercial Bid (Packet -B) are as per 2.1.5(b) below: The Pre -qualification Bid (Packet -A) shall be opened on the date of tender opening. The detailed scrutiny ofPre -qualification Bid shall be carried out. The "Techno -commercial Bid" (Packet -B) of only those tenderers shall be opened who qualify in Pre -qualification Bid. The Techno -Commercial Bid (Packet -B) of unqualifying tenderers shall not be opened and they shall be intimated about rejection of their Pre -qualification Bid along with return of un -opened price bid and Earnest money Deposit (EMD) before opening of price bid of tenderers whose technical bids have been found acceptable. 2.1.5 (b) FORM OF TENDER The Tender Bid shall be submitted in two parts viz: i) Pre -qualification bid (packet - A). ii) Techno Commercial Bid (Packet -B)
(3.) THE Tender Bid shall be submitted in two copies. One sealed cover shall Contain Pre -qualification BID (Packet A). The packet A shall contain only details with respect to eligibility criteria, conditions, failing which the tender shall be rejected. Earnest money/bid bond shall also be kept in this cover. This cover shall be clearly super scribed with Pre -qualification BID (Packet A) along with the tender no. and its description. ;