S.S.SARON,J - (1.) CMS 17352 and 15823 of 2006 The rejoinder filed by the petitioner to the written statement of respondents-1, 2 and 4 and the written statement filed on behalf of respondent-5 are taken on record. The CMs stand disposed of. CWP 11706 of 2006
(2.) THE petitioner firm - M/s. Rajindra and Company, it is submitted, is engaged in executing huge works including roads, buildings, etc. It has earlier done work for the respondent-PWD B&R Department and executed their works for over Rs. 5.00 crores during the period 2002-03. In the following year of 2003-04, the works are stated to be of much higher amount. The works were completed to the complete satisfaction of the respondent department who even issued certificates (Annexures P1 and P2) in this regard. Notice inviting tenders (Annexure P3) was issued by the respondent department for strengthening of the Mamoon-Madhopur road KM No. 0.00 to 16.30 in district Gurdaspur under the RIDF-NABARD-XI scheme. The petitioner being eligible, completed the necessary formalities and applied for the same. During the tender process he came to know that with a view to oust his claim as a successful tenderer, some terms and conditions of the tender notice were being changed by respondents-1 and 2. Besides, inspite of the fact that the project was a NABARD sponsored/financed project and the terms and conditions had been settled by it, the respondents-1 and 2 for reasons and considerations best known were changing the terms and conditions to suit a particular category. Accordingly, the petitioner-firm served a legal notice dated 14.7.2006 (Annexure P4) on respondents-2 and 3. It expressed its apprehension that the terms and conditions were being changed not only after the tenders had been invited but had been duly accepted by the department. The petitioner received a letter dated 19.7.2006 (Annexure P5) from the Executive Engineer, Construction Division, PWD B&R Branch, Pathankot (respondent-4). He was informed about opening of the financial bid on 21.7.2006. The petitioner was present at the time of opening the financial bid on 21.7.2006 and his apprehension was confirmed. A contractor namely R.K. Mahajan and Company (respondent-5) who was not eligible was made eligible by diluting the terms and conditions that were earlier specified. The said contractor - R.K. Mahajan and Company (respondent-5) was in fact required to have and was asked whether it had executed any work of Rs. 10.00 crores or two works of Rs. 5.00 crores each during the last three years. However, no certificate could be produced by the said contractor. Till date, no allotment of the work has been done but the petitioner-firm believes that the allotment was now being made in favour of the said contractor (respondent-5) who was ineligible even to apply for the tender. It is stated that the petitioner believes that the terms of the tender have been diluted on account of political, extraneous and arbitrary considerations without publication of any change in the terms and conditions. The petitioner, by way of the present petition under Articles 226/227 of the Constitution of India, seeks a mandamus directing respondents-1 and 2 to strictly adhere to the terms and conditions of the notice inviting tender and to allot the work to lowest tenderer without diluting or tailor-making the same to favour a party; besides, not to allot the work to respondent-5. On notice of motion, written statement has been filed by Mr. Madan Bansal, Executive Engineer, Construction Division, Pathankot on behalf of respondents-1, 2 and 4. It is stated that the financial bid was opened by the Tender Processing Committee on 21.7.2000 in the presence of the petitioner as well as other contracting agencies. Since the rates of the financial bid of the petitioner were not the lowest, he has no right to file the present petition. It is, however, admitted that the petitioner-firm applied for issuance of tender documents which were issued to it. The tenders were called for Rs. 495.00 lakhs per DNIT submitted to the Chief Engineer but due to change of use of bitumen CRMB-55 instead of 60/70 grade, the amount of DNIT marginally increased to Rs. 516.00 lakhs. It is denied that the terms and conditions of the bidding documents had been framed in consultation with the NABARD authorities. It is submitted that the NABARD authorities had in fact vide letter (Annexure R1) emphasized in condition No. 11 of the terms and conditions for constituting a High Power Committee by the State Government to finalize the tender documents relating to the projects sanctioned by NABARD. A three-member committee has been constituted for receipt and processing the matters for road works approved under RIDF-VIII CRF. The committee was named as Tender Processing Committee (TPC). The members of the committee have been indicated as (1) Superintending Engineer, Construction Circle, Pathankot, (2) Superintending Engineer, Construction Circle, Hoshiarpur and (3) the concerned Executive Engineer in whose jurisdiction the work falls. The guidelines and criteria to be followed for receipt and process of the tenders by the committee was also issued vide letter dated 24.12.2002 (Annexure R3). The Tender Processing Committee while scrutinizing the technical bid in the present case found that M/s R.K. Mahajan and Company (respondent-5) fulfilled all the conditions except one condition i.e. the agency must have executed two works of Rs. 5.00 crores each or one work of Rs. 10.00 crorers whereas the said agency has executed one work of Rs. 5.00 crores and two works of Rs. 2.50 crores each. As per the standard bidding criteria prescribed for works which cost Rs. 2.00 crores to Rs. 5.00 crores, the contracting agency must have executed two works of Rs. 2.00 crores or one work of Rs. 5.00 crores. Since only two agencies submitted their technical and financial bids and moreover the DNIT amount was marginally higher than Rs. 5.00 crores, the Tender Processing Committee decided to refer the case to higher authorities so as to have competitive rates. It is stated that had the technical bid of M/s R.K. Mahajan and Company (respondent-5) been rejected on account of this marginal variation from the stipulated condition there would have been no competition. Besides, there is an extra saving to the government exchequer to the tune of Rs. 4,19,696/- which is evident from the financial statement (Annexure R4). It is stated that due to minor variation in the stipulated conditions and to have competitive rates, the case was referred to the Chief Engineer, Punjab as per guidelines contained in the letter dated 24.12.2002 (Annexure R3) prior to the opening of the financial bid of the petitioner. Therefore, the question of favouring anybody does not at all arise.
(3.) IN the written statement filed by respondent-5, a preliminary objection has been raised to the effect that the petitioner raised no-objection when the technical bid was opened on 10.7.2006 in his presence and thereafter when the financial bids were opened on 21.7.2006. Therefore, the petitioner-firm is estopped by its act and conduct to challenge the award of the tender in its favour. The filing of writ petition, it is stated, is nothing but an attempt to stop the carrying out the contract relating to the strengthening of Mamoon-Madhopur road awarded to respondent-5. The petitioner is laying challenge to the commercial contract and the manner of its implementation which cannot be agitated under Articles 226/227 of the Constitution of India. It is further stated that the contract was awarded to respondent-5 only after opening of the financial bids. The Tender Processing Committee held that the tender offered by respondent-5 was the lowest and there was an extra saving of an amount of Rs. 4,19,696/-. The location of the plant of respondent-5 near the site of the contract and the past performance of respondent-5 while executing the earlier contract sanctioned in its favour in the previous year by the same department also showed that the award of work in favour of respondent-5 was in the interest of the department and the public at large.;