SHREE CHANDRASHEKHAR, J. - (1.) THE petitionerM/s VA Tech Wabag Limited has approached this Court with the following prayers: (i) For a declaration that the Respondent No. 4 was not technically eligible to participate in the bidding process in respect of Tender No. O&M/DWSS/Dhanbad02/201314 issued by the Respondent No. 2 for Operation and Maintenance of Water Treatment Plant at Bhelatand and Maithan with other ancillary works including water supply from 18 nos. of existing ESR under Dhanbad water supply scheme phase1 and 2 for the year 201314 and 201415 and set aside the decision of the Respondent Department dated 25.09.2013 holding the Respondent No. 4 as technically eligible; (ii) further issuance of writ in the nature of certiorari or any other appropriate writ to set aside the award of contract in favour of the Respondent No. 4 in respect of Tender No. O&M/DWSS/Dhanbad02/201314, as communicated to the petitioner vide letter dated 21.10.2013 of the Respondent No. 3, as being illegal, arbitrary, unjustified, contrary to the tender conditions and constitutional; (iii) further an appropriate writ or writs order or direction commanding upon the Respondents to act in a fair, equitable, legal manner and in accordance with the tender conditions in respect of Tender No. O&M/DWSS/Dhanbad 02/201314 and to consider the financial bid of only technically eligible bidders, (iv) further an appropriate writ or writs order or direction commanding upon the Respondents to restrain from acting in any manner and in furtherance of the said award of contract to the Respondent No. 4 in respect of Tender No. O&M/DWSS/Dhanbad02/201314; (v) further for a declaration that the petitioner being the only eligible bidder was entitled to the award of contract in respect of Tender No. O&M/DWSS/Dhanbad02/201314 for the year 201314 and 201415 and, (vi) for issuance of any other appropriate writ(s), order(s), direction(s), as deemed fit and proper for doing conscionable justice to the petitioner.
(2.) BRIEFLY stated, the facts of the case are narrated thus: The petitionercompany claiming itself one of the leading companies in the world in the water treatment field, was awarded work order dated 30.07.2011 for the O&M contract for the Dhanbad Water Supply Scheme Phase1 for two years. Previously also the petitioner has executed water R.O. Plant at Chennai, Games Village Water Treatment Plant at New Delhi, Wastewater Treatment Plant at Jamnagar Refinery, MBR Technology Wastewater Treatment Plant at Muscat, Ultrafiltration Plant for Wastewater Treatment at Vizag etc. Since the period for O and M contract for Dhanbad Water Supply Scheme PhaseI was coming to an end, the respondentDepartment of Drinking Water and Sanitation issued eProcurement notice dated 25.06.2013. In the notice dated 25.06.2013 the scope of work was enlarged by including small Water Treatment Plant at Maithan also. The estimated cost for execution of work was Rs. 9.47 crores for a period of 24 months. The bid was required to be submitted in online format in two folders containing the technical bid and the price bid separately. Specific requirement of experience of the bidders was also indicated in the Tender condition and it was made clear that the bid of the tenderers, not having requisite eligibility would not be considered. The bidders were required to submit experience certificates indicating: (a) atleast one year experience in successful operation and maintenance of municipal WTP of minimum 30 MLD capacity anywhere in India; (b) possess High Tension and Low Tension Contractor License; (c) experience of successful O and M of a pumping station, consisting of a V.T. Pump with minimum capacity of 800 Cubic Meter/Hour discharge and a centrifugal pump of 400 Cubic Meter/Hour discharge and a centrifugal pump of 400 Cubic Meters discharge; (d) experience of 1 year in maintenance of 3 nos. of Elevated Service Reservoir of a capacity of minimum 1 lac gallon; (e) experience of laying and maintaining of rising mains and distribution network of pipe 30 km in length with 200 m to 400 m diameter and (f) the turnover requirement of the bidder was that it should have had a turnover of 50% of the tendered amount in any one year in last three financial years to be certified by a Chartered Accountant.
(3.) THE petitioner further claims that in terms of Clause 1.12.2.2 of the Tender condition, in a JointVenture, "lead partner" of the JV was required to meet atleast 50% of the eligibility under Clause 1.9. in proportion to partnership in JV, but not less than 50% of the eligibility criteria provided under Clause 1.9. The respondentDepartment uploaded the PreBid Clarification and Corrigendum on 10.07.2013 however, there was no indication of a discussion as to clarification of Clause 1.9. The information available on 23.07.2013 did not disclose the JointVenture of the respondent no. 4 with M/s Neo Parisrutan Pvt. Ltd, M/s Hindustan Architects Pvt. Limited and M/s Basak Engineering. The petitioner who has successfully executed the work order dated 30.07.2011 submitted its bid on 23.07.2013. The bid submitted by the respondent no. 4 discloses that the respondent no. 4 entered into MoU with the aforesaid three companies for execution of the work. The respondent no. 4 submitted its bid on the basis of credential of the above collaborators in the following manner: (a) Relying on the experience of M/s Neo Parisrutan Pvt. Ltd for the purpose of experience in O and M of WTP; (b) Relying on the credential of M/s Hindustan Architects Pvt. Limited for the purposes of laying and maintaining long distance large diameter pipeline and (c) Relying on M/s Basak Engineering and Co for its HT and LT contractor license. Upon relying on the above, the Respondent No. 4 stated that the Department would find him competent to execute the work. The writ petitioner asserts that the respondent no. 4 does not meet the experience eligibility for the following reasons: (a) the Certificate given by M/s. Hindustan Architects Private Limited was only for laying of 12 km pipeline and it did not meet the requirement of laying as well as maintaining of a 30 km pipeline. (b) the certificate given by M/s. NeoParisrutan Private Limited did not meet the required experience of operating and maintaining a pumping station consisting of a VT Pump of minimum capacity of 800 Cubic Meter per hour discharge. The Certificate given related only to operation and maintenance of a Water Treatment Plant and did not deal with VT pump in a pumping station. (c) there is no proof that Mr. Abhay Kumar Sinha or his JointVenture Partners have any experience of 1 year in maintenance of 3 nos. Elevated Service Reservoir with a minimum capacity of 1 lakh gallon. (d) the Respondent No. 4 only claim was that it had been executing various type of works of substantial quantum in the State of Jharkhand. The Certificate annexed by the Respondent No. 4 showed that he had been recently given a contract by the Department for the levelling, design and construction of RCC ESR, but there was no work of O and M of the nature required. (e) the tender conditions required that the prime bidder/lead partner should have minimum 50 % proportion in the partnership. Despite being the prime bidder, there was no expertise that Abhay Kumar Sinha possessed. Abhay Kumar Sinha was not meeting the experience eligibility of minimum 50%. ;