ECOMETRIX CONSULTANTS PVT. LTD. Vs. BHUBANESWAR DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) M/s Ecometrix Consultants Pvt. Ltd., a company registered under the Companies Act, 2013, as petitioner no.1, and the Manager (Finance) of the said company, as petitioner no.2, have filed this writ petition seeking to quash the letter dtd. 21/10/2022 under Annexure-5, by which the Letter of Award for selection of Survey Agency issued in favour of the petitioner no.1-company, vide letter dtd. 13/9/2022, has been cancelled/terminated, since petitioner no.1-company failed to fulfill the terms and conditions, as mentioned in sl. nos.3 and 4 of the above Letter of Award along with the conditions stipulated in Clause-13 of the Request for Proposal (RFP), within stipulated date and time, and the petitioner no.1-company has been blacklisted and banned for at least 3 years to be employed anywhere in the authority works with a warning not to submit any proposal, as Survey Agency, with Bubaneswar Development Authority (BDA) in future, otherwise the same would be rejected.

(2.) The factual matrix of the case, in a nutshell, is that petitioner no.1, as a consulting company, was established in the year 2015 for providing professional services in GIS, ITES, Water, Environmental and Social Sectors and, as such, petitioner no.1-company has adequate knowledge and experience in providing the same. Therefore, it is empanelled with Odisha Remote Sensing Space Application Centre (ORSAC) and Maharastra Remote Sensing Space Application Centre (MRSAC) along with other Government bodies, such as, Town and Country Planning Authority, Rural Water Supply and Sanitation Organization, Odisha Public Health Engineering Department, Odisha, Bhubaneswar Development Authority, Odisha, etc. and being engaged in various projects of different organizations, the petitioner no.1-company has completed the assignments/ works in time. Apart from the same, many of the works are ongoing in different organizations. 2.1 Opposite party no.1-BDA, which was constituted under the Orissa Development Authorities Act, 1982, and functioning under the control and supervision of the Department of Housing and Urban Development, Govt. of Odisha, issued a Request for Proposal (RFP) on 29/7/2022. In response to the same, the petitioner no.1-company applied for selection of Survey Agency for survey and field verification of land parcels for land demarcation of various plots of land with BDA. Such RFP contained two bid systems, viz., technical and financial. As per the RFP, the date of availability of RFP document was 20/8/2022, the date and time of pre-bid meeting was fixed to 3/8/2022 at 4.00 P.M. in the Conference Room, BDA, Akash Shobha Building, Sachivalaya Marg, Bhubaneswar, the last date and time for receipt of proposals was fixed to 22/8/2022 till 3.00 P.M., place of submission of proposals was before the Secretary, BDA, Akash Shobha Building, Sachivalaya Marg, Bhubaneswar and the date and time for opening of technical proposal was fixed to 24/8/2022 at 4.00 P.M. In adherence to the conditions of the RFP, petitioner no.1-company submitted its bid, which was considered and intimation was sent to the petitioner no.1-company, vide letter dtd. 13/9/2022, that it was selected as L-1 to undertake survey work as per RFP dtd. 29/7/2022 and was issued with Letter of Award (LoA) of even date along with format of performance guarantee agreement. Thereafter, the petitioner no.1-company approached the opposite parties for further discussion on 15/9/2022 and the same was done in the office of opposite party no.3 and Planning Member (TP). Clarifications were sought before signing the agreement and accepting the LoA as well as meeting all other requirements under the same, where the petitioner no.1-company was advised to put the same in writing and, as such, the petitioner no.1-company, in response thereto, sent a letter/email on 19/9/2022. Accordingly, on 15/10/2022, opposite party no.3 rejected the request made by the petitioner no.1-company in modification of demarcation point which would affect the payment conditions for being beyond the scope of RFP. Thereafter, opposite party no.3, without any prior notice, whether verbal or written, vide letter dtd. 21/10/2022, intimated the petitioner no.1-company that the LoA dtd. 13/9/2022 stands terminated/cancelled since petitioner no.1-company failed to fulfill the terms and conditions within the stipulated date and time as per sl.nos.3 and 4 of the LoA along with the conditions stipulated in Clause-13 of the RFP. In the said letter, it was further indicated that the petitioner no.1-company has been blacklisted and banned for a period of three years from being employed anywhere in the authority (BDA) works with a warning not to submit any proposal as Survey Agency with BDA in future, otherwise the same would be rejected. Hence, this writ petition.

(3.) Ms. Mamata Tripathy, learned counsel appearing for the petitioners vehemently contended that the impugned letter of cancellation/termination of LoA on the plea of invoking Clause-13 of the RFP and consequential blacklisting and banning for a period of three years to be employed anywhere in the authority (BDA) works with a warning not to submit any proposal as Survey Agency with BDA in future is arbitrary, unreasonable and contrary to the provisions of law and violates Article 14 of the Constitution of India and also principles of natural justice. It is contended that no show cause notice was issued to the petitioner no.1-company before blacklisting and banning it for a period of three years. It is contended that no contract was executed between the parties, as no agreement was signed by the petitioner no.1-company and till date the petitioner no.1-company has not been awarded the work to be undertaken by it. It is contended that on receipt of the letter dtd. 21/10/2022, the petitioner no.1-company immediately approached the BDA on 25/10/2022 with a request to accept the LoA dtd. 13/9/2022 and also undertook to submit the bank guarantee as well as for execution of the agreement for the said work within seven days. In the request for reconsideration and representation dtd. 26/10/2022, petitioner no.1-company clearly stated that as per sl.nos.3 and 4 of LoA, Clause-13 of the RFP and Clause-2.6 of the RFP are not applicable to it and, therefore, it cannot be subjected to cancellation/termination /blacklisting. In response to the same, on 22/11/2022, the opposite party-authority rejected the request for reconsideration of cancellation/ termination. It is thus contended that such action of the authority in not considering the case of the petitioner no.1-company is an outcome of non-application of mind. Therefore, the petitioners have approached this Court invoking extra-ordinary jurisdiction of this Court to interfere with the same.