- (1.) The Executive Engineer, Water Resources Department, Government of Jharkhand, invited item rate bids for construction of Kharkhai Dam at Icha with all control gates and its allied works including Civil, Mechanical (with design of gates), Electrical and SCADA system under SMP on 28/02/2014, through e-procurement from eligible and approved contractors. Since the project was for more than Rs. 250 Crores, terms and conditions of it were in accordance with Standard Bidding Documents (SBD). A pre bid meeting held on 24/03/2014, in which 10 persons, including the petitioner, had participated. In the meeting question over the work and also conditions of the NIT were invited, which were duly answered by the Chief Engineer, Icha Galudih Complex. Adityapur, Jamshedpur. In course of pre bid meeting when it was found that there has been departures relating to the terms and conditions of the NIT from the clauses of Standard Bidding Documents (SBD) which had never been approved by the Department, it was informed to the Chief Engineer and was requested to issue necessary corrigendum to the tender notice, so that the tender be in accordance with SBD. That was replied with by letter dated 02/04/2014 (Annexure- C to the Counter Affidavit), whereby justification was given by the Chief Engineer by stating that the work was of specific and urgent nature and that apart due to other reasons, the clauses were inserted so as to ensure appropriate and smooth implementation of the work in time. Pursuant to that NIT, three tenderers namely M/s CWE-SOMA Consortium, Hyderabad (the petitioner), M/s IL & FS Engineering and Construction Company Limited, Hyderabad as well as M/s Navyuga Engineering Co. Limited, Hyderabad, participated in the tender process by submitting their bids. After receiving papers, a meeting was convened by the Departmental Tender Committee (DTC) on 02/06/2014, for taking decision upon pre qualification bid. In that meeting held on 02/06/2014, only the petitioner was found to be the responsive, whereas other two bidders were found to be non-responsive. The Tender Committee having found that only one bidder has been found to be responsive, a decision was taken in terms of clause 4.18 (d) of the Central Vigilance Commission (CVC) guidelines to cancel it and to go for re-tender to make the process of tender more competitive. Being aggrieved with that decision, the petitioner has come to this Court by filing this writ application.
(2.) Mr. Ajit Kumar Sinha, learned senior counsel appearing for the petitioner submits that out of three bidders, the petitioner was found to be responsive, whereas other two bidders were found to be non-responsive and, therefore, it was assumed by the Tender Committee to be a case of single tender and, thereby, a decision was taken to cancel it and to go for another tender to make the process of tender more competitive. That decision taken by the Tender Committee taking the case of single tender is against the CVC norms as in terms of clause 4.2 of the CVC guidelines, single tender happens to be that tender when there happens to be invitation to one firm only. Further, learned counsel by referring to clause 4.17 of the CVC guidelines, submits that in a case single quote or a single valid acceptable quote is received against limited tender or open tender, this results into a single Vendor situation but it shall not be treated as procurement against single tender enquiry and, thereby, it needs to be processed further. In order to buttress his stand, those clauses, which were referred to, read as follows:- "4.2 Single Tender.- As per note 27 of Annexure to Rule 102 (I) of GFR, "invitation to one firm only" is called Single Tender. Single Tendering for non PAC items may be resorted to only on the grounds of urgency or operational or technical requirements. The reasons for single tender enquiry (STE) and selection of a particular firm must be recorded and approved by the CFA prior to single tendering. Purchases on STE basis should be made from reputed firms after determining reasonableness of rates. However, when defence PSUs/OFB have specifically developed an item for the department of defence or have taken TOT, such sources could be treated at part with the PAC firms. 4.17 There are cases when only a single quote or a single valid acceptable quote is received even against LTE or OTE, this results in a single vendor situation indicating lack of competition. These cases will not be treated as procurement against Single Tender Enquiry and shall be progressed as an LTE or OTE case as applicable."
(3.) By referring to the aforesaid two clauses, learned counsel further submits that the Tender Committee instead of resorting to the clause 4.17, resorted to clause 4.18 that deals with the matter relating to re-tender, which can be resorted to on amongst other in a situation where there has been lack of competition. The said clause 4.18 reads as follows:- "4.18. Re-tendering- Re-tendering may be considered by the TPC/CFA with utmost caution, under the following circumstances: (a) Offer do not confirm to essential specification. (b) Wherever there are major changes in specification and quantity, which may have considerable impact on the price. (c) Prices quoted are unreasonably high with reference to assessed price or there is evidence of a sudden slump in prices. (d) There may be cases when the lack of competition is due to restrictive specification, which do not permit many vendors to participate. The CFA must consider if there are reasons for review of specification of the item to facilitate wider competition. Retendering will be done only after approval of IFA and CFA in all cases.";