Maj. Gen. Sanjeev Jain (Retd.) v. Central Public Works Department & Anr.

1. The Petitioner, Maj. Gen. Sanjeev Jain (Retd.), who retired as the Chief Engineer, Western Command having served 37 years, was enlisted as a government contractor in 2023 under the Rules of Enlistment of Contractor in CPWD 2022[1] issued by Respondent No. 1 – Central Public Works Department[2]. On the basis of this enlistment, the Petitioner participated in Notice Inviting Tender[3] bearing no. 04/SE(AGRA)/2023-24 floated by Respondent No. 2 - Executive Engineer Bareilly, for ‘Planning “2022 Rules” “CPWD” and Construction of 30 bedded (Upgradable to 100 bedded) Hospital Building, Service Buildings etc. at Paina Bujurg, Sadar District, at Shahjahanpur, Uttar Pradesh’. On emerging as the successful bidder, a Letter of Award dated 06th June, 2024[4] was issued in favour of Petitioner.

2. However, subsequently when the Petitioner wanted to participate in another NIT floated by Respondent No. 2 bearing no. 01/SE(AGRA)/2024- 25, for executing works of planning and construction of 100 bedded ESIC Hospital Building with Service Building etc., he was deemed ineligible to participate on the basis of a communication dated 8th August, 2024[5]. This communication clarified the terms of the NIT to the effect that CWPD contractors enlisted under Rule 6.1.[7] of the 2022 Rules are also required to fulfil the eligibility requirement of having completed ‘similar works’ as mentioned under Paragraph No. 1(a)(i) of the NIT in question. It was further emphasised that there was no change in NIT conditions.

CONTENTIONS OF PETITIONER

3. Ms. Amrita Panda, counsel for Petitioner, impugns the aforenoted communication, raising the following contentions: 3.[1] The Respondents’ impugned communication, unreasonably and arbitrarily, precludes the Petitioner from the bidding process for the subject NIT and thereby, puts unreasonable fetters on the Petitioner’s ability to carry out his business. 3.[2] The impugned communication is in contravention of the Rules for Enlistment of Contractors 2022 and 2023 issued by CPWD, wherein there is no requirement for retired engineers empanelled under Rule 6.1.[7] to have “NIT” “LOA” prior work experience of having completed similar works. As such, the Petitioner had a legitimate expectation that this ‘similar works’ condition, which is otherwise applicable to other prospective bidders would not be applicable to him on account of his empanelment. Therefore, introducing such an extraneous condition in the NIT by way of the impugned communication, is not justified. 3.[3] Clause 6.1.[7] of the 2022 Rules creates an exception to the General Rules of Enlistment of CPWD contractors, specifically in terms of persons who retired as Government servants, State Governments, Central or State PSUs engineers. This class of contractors get enlisted after one year of retirement from service, rendering them eligible to seek enlistment as CPWD contractors in their individual capacity, without prior work experience, subject to them having the required financial soundness and individually holding a valid PPO or equivalent documentation. However, the impugned communication renders the Petitioner’s enlistment under the said rule nugatory and meaningless, since the Petitioner can never have the experience of completing ‘similar works’ and thereby, they can never be eligible for CPWD tenders, despite being an enlisted CPWD contractor. 3.[4] The Petitioner falls in the exclusive category provided in Clause 6.1.7. of the 2022 Rules, which makes an exception for prior work experience which the Petitioner already carries, on account of his experience of serving for 37 years as an engineer in the Central Government. 3.[5] Petitioner has successfully secured LOA in respect of an earlier tender floated by Respondent No. 2, wherein the conditions were identical to the subject tender. However, in the subject tender, the Respondents have “Impugned communication” arbitrarily and unreasonably interpreted the same terms in a different manner, to preclude Petitioner from participating in the tender.

CONTENTIONS OF RESPONDENTS

4. Mr. Bhagvan Swarup Shukla, CGSC for Repsondents, on the other hand, argues the following: 4.[1] Petitioner’s entitlement as an enlisted CPWD contractor cannot be confused with eligibility to participate in tenders. 4.[2] The subject tender conditions have been framed in consonance with the communication dated 07th June, 2024 issued by the Director General, CPWD, whereby the Statement of Purpose[6] No. 4/9 and Annexure-24 of SOP for CPWD Works Manual, 2022 has been modified in terms of the ‘applicability of similar work’ condition. The impugned communication dated 8th August, 2024 was issued based on the above communication of 7th June, 2024, however the latter has not been impugned by the Petitioner. 4.[3] Respondent authorities are well within their right to frame the tender conditions. The impugned communication is only an interpretation/ clarification of the tender conditions after discussing the issue with all the parties in a pre-bid meeting and accordingly, it does not amount to an amendment.

ANALYSIS AND FINDINGS

5. The Court has considered the aforenoted contentions of the parties. At the outset it must be noted that the jurisdiction of the Court under Article 226 of the Constitution of India, 1950, in relation to matters of interpretation of tender conditions, is well defined through several judicial precedents. The Supreme Court has repeatedly emphasised that the scope of interference of this Court in writ jurisdiction under Article 226 for matters relating to tender is narrow and the tendering authority is the best person to interpret the tender conditions[7]. In fact, in the case of Galaxy Transport Agencies v. New J.K. Roadways & Ors.8, while referring to the earlier judgment of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.9, the Supreme Court has explicitly held that the authors of the tender document are the best persons to interpret the terms of the tender. The relevant extracts of the same are as follows:

6. Furthermore, in Agmatel India Pvt. Ltd. v. Resoursys Telecom & Ors.10 after taking note of multiple authoritative judgments on the subject, the Supreme Court summarised the position of law as follows: “26. The abovementioned statements of law make it amply clear that the “SOP” Tata Cellular v. Union of India, (1994) 6 SCC 651 author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given.”

7. Guided by these judgments, this Court must now determine whether the impugned tender conditions infringe upon any enforceable constitutional or legal rights of the Petitioner. Even though the Petitioner has impugned the communication dated 8th August, 2024, the requirement for ‘similar works’ experience, which is now part of the tender conditions, originates from the letter issued by the Director General, CPWD, dated 7th June, 2024, which modifies SOP 4/9 to mandate that both CPWD and Non-CPWD contractors submit documents demonstrating eligibility for similar work experience. The said communication reads as follows:

8. The SOP 4/9 and Annexure-24 of SOP for CPWD manual which deals with applicability of similar works stands modified. Now, the CPWD enlisted as well as Non-CPWD contractors are required to submit their eligibility documents for similar work experience.

9. The language of the subject NIT makes it clear that all bidders, including CPWD enlisted contractors, are required to meet specific eligibility criteria. Furthermore, the tender conditions in question, which are alleged to be changed by way of the impugned communication, read as follows:

10. In light of the above, it is thus established that the impugned communication, which is alleged to be a Corrigendum is actually only a clarification issued to all the tender participants making it clear to them that the requirement for completing ‘similar works’ is also applicable to CPWD enlisted contractors.