- (1.) CHALLENGE in this intra-court appeal is to the order dated 24th January, 2012, whereby the learned Single Judge dismissed the writ petition filed by the appellant-petitioner.
(2.) ADUMBRATED in brief, the facts of the case are that the appellant is a registered partnership firm doing the business of manufacturing plastic pipes and other accessories as also doing the work of civil contract. He is AA class registered contractor firm with the respondent-department. It is stated that the respondent no.3 Chief Engineer. Narmada Canal Project, Government of Rajasthan, Sanchore, District Jalore issued Notice Inviting Tender No. 2/2012-12 inviting bids from intending contractors / firms for execution of earth work, single PCC block lining, pucca structure, diggies etc., as mentioned in NIT Item No. 1 under the head of 'name of work' on the basis of two envelop system and the last date for receiving the bid was 16th September, 2011. The bids were opened on 19th September, 2011. The appellant-firm was found qualified as he had given the lowest bid relating to the said works mentioned at Item No. 1 and 2 of the NIT. The appellant firm also deposited the earnest money to the tune of Rs. 23.18 lacs along-with its bid for the work of item no. 1 in the shape of Demand Draft of Rs. 10.00 lacs and bank guarantee for the rest of the amount. It is submitted by the appellant that in terms of the Rajasthan Public Works Financial and Accounts Rules (here-in-after to be referred to RPWFA Rules) more particularly clause 11 of Appendix-XI (RPWA-100), the bid was to be accepted within 70 days i.e. upto 28th November, 2011, but the respondent-Department could not issue the acceptance / tender bid submitted by the appellant firm within the said period and instead vide order dated 28th November, 2011 required the appellant firm to extend the validity period of acceptance of the tender submitted by it for item no. 1 of NIT No. 2/2011-2012. The case of the appellant firm is that even though no extension on the validity period, as sought, was given by the appellant-firm and vide order dated 7th December, 2011, the refusal to the request for extension of bid was sent, yet the work order in respect of the NIT in issue was released to the appellant-firm by the respondent-Department vide order dated 13th December, 2011, and the appellant-firm was required to start the work and also required to attend the office of the Executive Engineer, Narmada Canal Project, Division-IV, Sanchore for executing the contract agreement with the Government of Rajasthan, within a period of 10 days from the letter dated 13th December, 2011. It is submitted that the acceptance of the bid dated 16th September, 2011, which had been opened on 19th September, 2011, vide letter dated 13th December, 2011 is contrary to the RPWFA Rules and, therefore, not binding on the firm. The prayer, as set out earlier in the petition, has been made in the aforesaid context. In reply to the petition, the Department submitted that the work order dated 13th December, 2011 was issued by the answering respondent lawfully and rightly within terms of clause-9 of NIT, which provided that the bidder would be advised in writing by Fax or Telex, within 90 days of the date of submission of applications, the result of its bid. It has further been submitted that Appendix-XI (RPWA-100) only provides the prescribed period for sanctioning authority and that the validity period of the proposal, as made, was a period of 90 days from the date of the bid, within which the communication was to be made to the bidder with regard to the outcome of its bid. Thus, the issue of work order to the appellant-firm on 13th December, 2011 was well within the validity period of 90 days of the bid dated 16th September, 2011, as specified under Clause 9 of the NIT and in any event of the matter, no challenge to Clause 9 of the bid document having been made by the appellant firm, no argument dohors the said condition could be countenanced. Heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order dated 24th January, 2012. Learned counsel for the appellant, Mr. R.D. Rastogi canvassed that the appellant firm submitted its bid for the works listed for item no. 1 on 16th September, 2011 and the technical bid (Pre Qualifying Bids) was opened on 19th September, 2011 and the financial bid was opened on 3rd October, 2011 and the acceptance of the bid was to be given upto 28th November, 2011. Since the limitation period of acceptance of the tender has been provided 70 days by Finance Committee Board / Empowered Committee / Empowered Board in terms of Clause No. 11 of Appendix-XI (RPWA-100) and the respondent no.3 wrote letter dated 28th November, 2011 to the appellant firm requesting to give consent for extension of the validity period of the bid relating to item no. 1 and the appellant firm sent its refusal vide letter dated 7th December, 2011 and expressed its inability to extend the validity of bid, yet the respondent-Department released the work order in respect of item no. 1 of NIT No. 2/2011-12 in favour of the appellant firm and required him to attend the office of the Executive Engineer, Division-IV, Sanchore for executing contract agreement with the Government of Rajasthan, within a period of ten days from 13th December, 2011. Since the respondents had acted against the provisions of law and contrary to the RPWFA Rules, therefore, the work order was not binding on the appellant-firm. Learned counsel further canvassed that despite the work order being totally illegal and invalid in the eyes of law, the respondents had verbally told the appellant that they would forfeit the earnest money deposited by the firm in case the appellant firm failed to start the work within ten days and execute the contract agreement. Learned counsel also contended that the learned Single Judge wrongly relied upon the provisions of Clause 9 of Technical Bid, which had nothing to do with the Financial Bid and the same related to merely giving intimation to the bidders, who had participated in the technical bids, about the results of their bids. Thus, the learned Single Judge committed gross illegality both of law and facts while passing the impugned order, which in the light of the terms of Clause No. 11 of Appendix-XI of RPWA-100 deserves to be set-aside.
(3.) E Converso, Shri Sushil Kumar Sharma, the learned Additional Advocate General, appearing for the respondents defended the impugned order rendered by the learned Single Judge and stated the same to be just and proper. He further contended that Appendix-XI (RPWA-100) only provided the prescribed period for sanctioning authority and that the validity period of the proposal as made was a period of 90 days from the date of the bid within which the communication was to be made to the bidders with regard to their outcome. The impugned order is well in tune with the terms and conditions of the tender notice and the same warrants no intervention and the appeal deserves to be dismissed. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, a very short but the crucial and intractable question springing for determination is that as to whether the time period of 70 days is to be considered by tendering authority for acceptance of tender envisaged in Clause 11 of Appendix-XI (RPWA-100) or the time period of 90 days as provided in Clause-9 of NIT documents is to be taken into consideration for the acceptance of the bid? The learned Single Judge having considered the submissions put forth by both the sides and critically analyzed the relevant rules ad-longum observed as under: So far as the merit of the case is concerned, in my considered opinion, the issue is fully covered by clause 9 of NIT 02/2011-12 pertaining to item No. 1 as circulated by the respondents-Department to prospective bidders and by which they were all bound. Clause 9 makes it clear that the result of the bid of the bidders was to be conveyed within 90 days and thus made it quite clear that the validity of the bid as made by the petitioner-firm as also other firms was a period of 90 days from the date of submission of the bids. Admittedly, the date of submission was 16.9.2011 and the bids consequently made by any of the firm/s was/were valid till 14.12.2011. In the instant case the bid of the petitioner-firm was accepted and the acceptance conveyed to the petitioner-firm by the respondents-Department vide letter dated 13.12.2011. Consequently, the acceptance of the petitioner-firm's bid was within the validity period as detailed in clause 9 NIT documents. I therefore find no ground to hold that the acceptance of the petitioner-firm's bid under the letter dated 13.12.2011 was illegal, arbitrary and liable to be set aside by this Court. The learned Single Judge further observed that: the petitioner-firm is bound by the terms and conditions of NIT under which it has acted and under which it has made its bid. Reference to the RPWFA Rules is besides the point as the said rules pertain to internal administrative functioning with the department / Government and sets out the calender under which the relevant government authorities are expected to operate. Appendix 11 has no manner of relevance to the conditions of the NIT as notified and under which the bids were submitted amongst others by the petitioner-firm and therefore, no succor can be sought therefrom by the petitioner firm. The petitioner-firm is bound by the terms and conditions of NIT documents as discussed here-in-above in terms whereof the validity of the bid which period of 90 days commencing 16.12.2011. The acceptance of bid and work order issued to the petitioner-firm on 13.12.2011 was clearly within the 90 validity period of the offer / bid by the petitioner firm. ;