R.K.MERATHIA, J. - (1.) HEARD learned counsel for the petitioner, learned Advocate General appearing for the State and Mr. M.K. Roy, learned counsel appearing for respondent No. 6.
(2.) WHETHER the decision making process in awarding contract of package No. 3 in tender Notice No. 1/2003 -04 is fair and bonafide, is the question. Learned Counsel for the petitioner placed the following facts in support of his contention that the contract has been awarded in favour of respondent No. 6 in a arbitrary and malafide, manner : A notice inviting tender was advertised on 25.5.2003 being Advertisement No. 1/2003 -04 for construction of 29 Nos. of RCC/PSC bridges including approach roads in four packages. In his case, package No. 3 is in question. The petitioner and other submitted their bids in two envelopes as per Clause 25 of the Tender Notice. The first envelope containing technical bids were opened on 31.5.2003 in presence of the tenderers/ their agents. The second envelope containing the details of price offer was to be opened after examination of technical bids. Clause 28.2 of the Tender Notice provided that 'the financial bids of all the technically qualified bidders shall be opened in presence of tenderers or their authorised representatives who may choose to be present for which they would be intimated separately.' Petitioner did not receive any intimation about opening of financial bid and a representation was made in this regard. From the counter affidavit filed in this case, the petitioner learnt that the financial bid was opened on 19.6.2003 about which the petitioner had no intimation. It further appeared from the counter affidavit that on 18.6.2003 a purported scrutiny was done in which four tenderers including the petitioner and respondent No. 6 were found technically qualified. It is further alleged in the counter affidavit that since the technical bid was scrutinized on 18.6.2003, the Engineer -in -chief decided to open the financial bid on the next day i.e., on 19.6.2003 and as there was no time to inform the bidders through letters, all the bidders were informed on telephone through a telephone booth after obtaining proof of making telephone calls. It further appeared to the petitioner from the counter affidavit that the four bidders present were Royal Engineering (respondent No. 6), Bhupendera Engineering (petitioner), S.P. Singha and Kamla Construction but from Annexure -B, the alleged minutes of meeting, it appeared that Kamla Construction was not present. S.P. Singha was not a tenderer regarding package No. 3. Therefore, it is clear that only the respondent No. 6 and one other tenderer S.P. Mallick were present in the alleged meeting held on 19.6.2003. It further appears from the minutes of the alleged meeting (Annexure -B), that the rate quoted against package No. 1 is mentioned. The decision/details of the relevant package No. 3 has not been brought on record. The form of financial bid (annexure - 4), shows that for all the four packages one composite form is provided whereas there should be separate forms of financial bids for separate packages otherwise there are every chances of manipulation. One tenderer can purchase such four composite forms of financial bids for submitting tenders against each package separately but if the department wants to favour a party, a form of financial bid making him lowest tenderer can be inserted easily in place of his original financial bid. The petitioner asserts that there has been such mal practice in this case in view of the other facts and circumstances. Learned counsel for the petitioner further submitted that the stand of the State in the counter affidavit is that on the opening of the financial bid the tenderers or their representatives who participated were S.P Singha, Royal Engineering (respondent No. 6) and S.P. Mallick who were present there in relation to some other package, the financial bid of which also was being opened on the game day. Whereas the stand of the respondent No. 6 in his counter affidavit is that in pursuance of the telephonic message the deponent of the counter affidavit, participated in the opening of financial bid. The petitioner also expressed its objection as to how the respondent No. 6 could know about the rates quoted by the parties. The bid was to be opened in presence of all the parties, but only the officers are required to know the rates quoted by the parties to ascertain as to who is the lowest. The respondent No. 6 is made the lowest with the rate quoted at Rs. 4,70.40,000/ - in view of the rate quoted by the petitioner at Rs. 4,82,49,584/ -. On 22.7.2003, this Court while issuing notices, ordered that in the meantime, if any work is performed with respect to package No. 3, it shall be subject to the decision of the case. This order was passed in presence of the Government counsel even then an agreement was entered into with respondent No. 6 on 25.7.2003. When the said fact was brought to the notice of this Court, on 24.9.2003 it was ordered that in he meantime if any work order is issued or agreement executed with he 6th respondents in respect to the work in question, it shall remain stayed. The Executive Engineer was directed to ensure that no work is performed by 6th respondents until further order of this Court. Moreover, such a package involving construction of five bridges and involving more than four crores was decided by the Chief Engineer, Rural Development Department, Special Zone and two Assistant Engineers of his office. The total tender is for 29 bridges involving more than 20 crores.
(3.) THE petitioner's contention is that the totality of the circumstances clearly establishes that the Government has shown favour in awarding contract to respondent No. 6.;