ARIJIT BANERJEE,J. - (1.) In this writ application the petitioners have challenged the Notice Inviting Electronics Tender No. 20 of 2014-15 dated 31 December, 2014 issued by the Superintending Engineer, Central Circle, PWD, Murshidabad for widening and strengthening of Motijhil to Panditbagh More Road, i.e. a stretch of 8.75 kms in the district of Murshidabad. The contention of the petitioners is that the petitioner company was the successful bidder pursuant to Notice Inviting Electronic Tender No. 8 of 2014-15 issued for the same work and as such issuance of the subsequent tender No. 20 was illegal. The petitioners submitted that the work order should be issued in favour of the petitioner company. Facts of the case:-
(2.) A tender was floated and Notice Inviting Electronic Tender No. 8 of 2014-15 dated 4 September, 2014 was issued by the Executive Engineer-II, Berhampore Division No. I, PWD Directorate for widening and strengthening of 8.75 Kms stretch of the road from Motijhil to Panditbagh More Road in the District of Murshidabad. The estimated value of the tender work was Rs. 6,18,26,809/- and the estimated completion period was 180 days. Sub-clauses (i) and (ix) under Clause 3 (Eligibility criteria for participation in tender) read as follows:- "3(1) The prospective bidders shall have satisfactorily completed as a prime agency during the last 5(five) years prior to the date of issue of this Notice at least one work of similar nature under the authority of State/Central Govt., State/Central Govt. undertaking/Statutory Bodies constituted under the statute of the Central/State Government and having a magnitude of 40 (forty) percent of the Estimated amount put to tender. (Non Statutory Documents) N.B. Estimated amount, Date of completion of project & detail communicational address of Client must be indicated in the Credential Certificate. Similar nature of work in Road Works. (ix) The prospective bidders should own (Details as mentioned in Sl. No. 2) the required plant and machineries of prescribed specifications as shown in format. Conclusive proof of ownership (Tax invoice, Way Bill, Delivery Challan, incorporation in the Balance Sheet as fixed asset) for each plant and machineries in working condition shall have to be submitted. Present location of installation of main Plant and machinery as mentioned in specified format has also to be disclosed. Present status/location of all the Plant and Machineries are needed to be provided. If the same is already engaged in the other works, then name of client along with his contact number should be furnished in the declaration by the intended tenderer countersigned by the client with tentative date of release of such Plant and Machineries where the same are presently engaged. If necessary, authority/evaluation committee may inspect Plant and Machineries physically or call for the original documents as proof of Ownership in favour of owner Plant and Machineries should be owned by the applicant. (Non Statutory Documents)."
(3.) There were no bidders in response to the said NIET. The authorities reviewed the tender process and while doing so took into consideration the Government Notification No. 229-CRC/2M-02/2013 dated 11 July, 2013 whereby sub-Rule (3) of Rule 216 of the PWD Code was amended. Rule 216(3) as amended reads as follows:- "(3) If upon calling for competitive tenders, the number of tenders received is less than three, the tenders shall be invited afresh. Such Re-Tender notice shall be published in widely circulated dailies for conventional 'Notice Inviting Tender' (NIT) and also through e-Tender portal in case of re-Tender. Prior to invitation of Re-Tender or fresh Tender the eligibility criteria and other terms and conditions as contained in the first 'Notice Inviting Tender' shall have to be reviewed by the Tender Inviting Authority to ascertain whether (i) it was too much restrictive, say, specifications and qualifications were fixed at higher standard than required, (ii) advertisement in the widely circulated Newspapers were properly published and (iii) other related procedural matters were observed in its entirely. However, in every such case of Re-Tender, all categories of Contractors shall be allowed to participate irrespective of the fact whether the initial tender was confined to any class of Enlisted Contractors or to registered Co-Operative Society formed by Unemployed Engineers; provided that such contractors shall have to fulfill the requirements laid down in the tender notice. Even if, after taking appropriate steps, the response to such Re-Tender is less than three, that tender may be accepted without reference to the Finance Department; Provided that the rates do not exceed the estimated or the schedule rates beyond 3% in case of works estimate and responsible prevailing market price for goods and service in other cases. Otherwise, such cases should be referred to the Finance Department for decision.";