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Rejection of technical bid by Indian Tourism Development Corporation was violative of the rights of petitioner- Orrisa HC

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A Single Judge Bench of Chief Justice K.R. Mohapatra held that the documents submitted by the Petitioner in support of the executed value of the contract of similar nature of work being far more than 80% of the total estimated cost, TEC had no difficulty accepting the same and considering the Petitioner’s technical bid favorably.

The Petitioner in this writ petition calls in question the rejection of its technical bid by the Indian Tourism Development Corporation (ITDC) for the work “Development of Tourism Facilitation Centre cum-Multilevel Parking at Puri, Odisha”. Pursuant to a Tender Call Notice issued by the ITDC for the work for an estimated cost of Rs. 19,12,65,674.25, the Petitioner, and other bidders submitted their bids.

The last date of submission of the bid was 2nd January 2020 and the technical bid was scheduled to be opened on 3rd January 2020. It is revealed from the averments in the writ petition that after the opening of the technical bids, the Petitioner was sent an e-mail from the Senior Manager -ITDC on 31st January 2020 requiring him to submit the following:

(i) Copy of the work order and scheduled of quantity for the work for an amount of Rs. 25,96,99,318.00.

(ii) History and structure of firm, name of Director/Partners/Proprietor/with Technical Staff.

Responding to the e-mail, the Petitioner submitted the required documents/information on 4th February, 2020. Thereafter, the Petitioner also sent some clarificatory documents to the Opposite Party No. 4 through e-mail on 24th February, 2020. On 18th March, 2020, the petitioner was informed that his bid was rejected for not being technically qualified because all documents not submitted as per NIT through e-tendering portal.

It was mentioned that although the completion certificate produced by the Petitioner dated 27th September, 2019 was for a value of Rs. 25,96,99,318.00 and Letter of Acceptance (LOA) 21st October, 2016 was for an amount of Rs. 27,00,01,000.00, but, in the completion certificate dated 27th September, 2019, the original contract value was mentioned as Rs. 25,43,15,588.00. On seeking clarification and work Order with BOQ/Schedule of Quantity & Rates for work through e-mail dated 31st January, 2020, the Petitioner submitted a Detailed Letter of Acceptance (DLOA) dated 23rd December, 2016 for an amount of Rs. 27,00,01,000.00 with incomplete set of Schedule of Quantities & Rates.

There was a discrepancy in the Contract Value/Work order amount in the LOA of 21st October 2016 and the Completion Certificate dated 27th September 2019. The above discrepancy in the documents could not be clarified.

The TEC stated that the technical bid of the Petitioner was rejected for submission of defective certificate in support of completion of similar nature of work by the Petitioner. In terms of clause-19 of the NIT, the bidders were required to submit completion certificate of similar nature of work.

Ms. Roy Choudhury, counsel for the Petitioner submitted that the he had submitted documents in compliance with Clause-19(c) of the NIT, which required the Petitioner to submit proof with regard to one similar completed work costing not less than the amount equal to 80% of the estimated cost. But Tender Evaluating Committee (TEC) rejected its technical bid arbitrarily on a flimsy ground showing discrepancy in the figures in the documents submitted by the Petitioner. There is no discrepancy at all.

 Senior Advocate appearing for ITDC objected claiming that the Petitioner submitted the bid on 31st December, 2019 enclosing Letter of Acceptance dated 21st October, 2016 for value of Rs. 27,00,01,000.00 and completion certificate dated 27th September, 2019 for original contract value of Rs. 25,43,15,588.00 and executed value of Rs. 25,96,99,318.00 in support of completion of similar work by the Petitioner. After the technical bids of the bidders were opened on 3rd January, 2020, the same was scrutinized by the Scrutiny Cell where after deficiencies of the respective bidders were informed for submitting clarificatory/deficient information.

Since the amount mentioned in the completion certificate submitted by the Petitioner did not match with the LOA submitted by it, it was specifically informed to submit the copy of the work order and schedule of quantity for the work done amounting to Rs. 25,96,99,318.00.

The Petitioner in response to the same submitted voluminous papers through e-portal and since there was a mismatch in the first and last page of the schedule of quantities for and abstract of payments, the technical bid of the Petitioner was rejected.

The court observed that the Petitioner has submitted the bid along with required documents within the stipulated time. After taking into consideration the facts and circumstances of the case, the court held that the TEC tried to find out certain discrepancy in the value of execution of similar nature of work executed by the Petitioner, but that loses its relevance as the executed value of the contract of Rs. 25,96,99,318.00 (excluding GST) was never disputed and it is admittedly more than 80% of the estimated cost of the tender in question.

The documents submitted by the Petitioner in support of the executed value of the contract of similar nature of work being much more than 80% of the total estimated cost, there was no difficulty on the part of TEC to accept the same and consider the technical bid of the Petitioner favourably.

Therefore, the rejection of the technical bid of the Petitioner was not just and proper. The same was set aside. The Tender Evaluating Committee was directed to consider the financial bid of the Petitioner along with other bidders.

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