Full Text
HIGH COURT OF DELHI
Date of Decision: 30th April, 2019
ASHWANI GARG ..... Petitioner
Through: Mr.Sanjay Sharawat, Mr.Divyank Rana & Mr.Ashok Kumar, Advocates
Through: Mr.Satyakam, Addl.Std.Cousnel with Mr.D.A.Dewan, Ex.Eng., PWD
HON’BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
JUDGMENT
1. This petition concerns nine Notices Inviting Tender [hereinafter referred to as "NIT"] dated 06.09.2018, issued by the respondent [Government of NCT of Delhi] for the construction of additional classrooms in various schools.
2. The petitioner submitted his bid pursuant to the NIT on 29.09.2018. The respondent rejected the technical bid of the petitioner on the ground that it had failed to score minimum marks in the “Time Over Run” criteria (explained in greater detail herein below). The petitioner represented to the respondents vide letters dated 02.11.2018 and 05.11.2018. The lack of a satisfactory response has led to the present proceedings. 2019:DHC:2360-DB
3. The tender was open to contractors enlisted in the appropriate category by the Central Public Works Department [hereinafter referred to as "CPWD"] as well as those not so listed. The petitioner being undisputedly not enlisted in the appropriate category, Clause 1.2.1(a) required establishment of its past performance in the following manner: “1.2.[1] Conditions for other eligible agencies who are not enlisted under appropriate composite category of CPWD only, (a) Three similar works each of value not less than Rs 16.08 crore or two similar works of value not less than Rs. 24.12 crore or one similar work of value not less than Rs 32.16 crore in last 7 years ending previous day of last date of submission of bids. Similar work shall mean "C/o RCC framed structure building including water supply, sanitary installation and internal electrical installations". The value of executed works shall be brought to current costing level by enhancing the actual value of work at simple rate of 7% per annum, calculated from the date of completion to the last date of submission of bid. Note: While considering any similar work executed by applicant Firm under joint venture, the experience of the applicant Firm in that works shall be restricted to its share/responsibilities as reflected in the Memorandum of Understanding (MoU), signed between the parties, while forming joint venture for that work, attested copy of which shall be submitted along with the technical bid.”
4. Eligible bidders were thereafter to be evaluated in accordance with criteria specified in clause 8.0 of Section II of the tender document. Clause 8.1.[2] thereof provided as follows: “8.0 EVALUATION CRITERIA xxxx xxxx xxxx xxxx 8.1.[2] The bidders qualifying the initial criteria as set out in para 7.[1] to 7.[9] above will be evaluated for following criteria by scoring method on the basis of details furnished by them. (a) Financial strength (Form „A‟ & „B‟) Maximum 20 Marks (b) Experience in similar nature of work during last Seven years (Form „C‟) Maximum 20 Marks
(c) Performance on works (Form „E‟)- Time over run Maximum 20 Marks
(d) Performance on works (Form „E‟)- Quality Maximum 15 Marks (e) Personnel and Establishment (Form „F‟ & „G‟) Maximum 10 Marks (f) Plant & Equipment (Form „H‟) Maximum 15 Marks Total 100 Marks (Evaluation of marks shall be done as per Annexure –„A‟ at Sheet attached hereinafter) To become eligible for short listing the bidder must secure at least fifty percent marks in each and sixty percent marks in aggregate. The department, however, reserves the right to restrict the list of such qualified contractors to any number deemed suitable by it.”
5. As stated above, the methodology for evaluation of marks against the above criteria was contained in Annexure-A, which was part of the tender documents. This methodology was admittedly derived from the CPWD Works Manual, being Annexure-I to Appendix-20 thereof. We are concerned, in the present case, with the evaluation of “Time Over Run” [“TOR”] under Clause 8.1.2(c) above. As far as this is concerned, the methodology for evaluation of marks contained in Annexure-A was as follows: “CRITERIA FOR EVALUATION OF THE
(c) Performance
(i) Without levy of compensation
(ii) With levy of
(iii) Levy of compensation not decided
1.00 2.00 3.00 >3.50 20 15 10 10 20 5 0 -5 20 10 0 0 TOR = AT/ST, where AT = Actual Time; ST = Stipulated Time. Note: Marks for value in between the stages indicated above is to be determined by straight line variation basis. [Emphasis supplied]
6. For evaluation of the agency’s past performance, the TOR criteria is incorporated in these provisions so that the timeliness of the agency’s performance can be factored in. In the clause above, the TOR in respect of a particular project is calculated by dividing the “Actual Time” taken by the “Stipulated Time”. For a particular TOR, the marks awarded to the agency is then determined by reference to the table above, and is thus also dependent upon whether or not the contractor was subjected to levy of compensation.
7. The petitioner's grievance in this writ petition turns on an interpretation of the above provision of Annexure-A. Mr.Sanjay Sharawat, learned counsel for the petitioner, contends that the "Stipulated Time (ST)", which is one of the determinants of the "Time Over Run (TOR)" should not be reckoned only on the basis of the time which had been originally provided for performance of the project in question, but should also include any extensions of time granted for which the contractor was not responsible. He argues that a contractor ought not to be penalized for delays in earlier projects for which it was not responsible and for which extensions were granted by the contracting agencies without levy of any compensation. In this connection, Mr.Sharawat submits that the CPWD Works Manual [which is admittedly applicable to construction contracts issued by the respondent] had been amended prior to the issuance of the NIT to incorporate this understanding, which was arbitrarily and unreasonably left out in the present NIT. He referred in this connection to an Office Memorandum bearing No. DG/MAN/347 dated 13.04.2017, by which the CPWD had made various modifications in the Works Manual. The relevant provision of that memorandum is in Sr.No.14 thereof, which defines TOR as follows:
┌───────────────────────────────────────────────────────────────────────────────┐ │ Sl. Existing Provision Modified Provision │ │ No. │ │ xxxx xxxx xxxx xxxx │ ├───────────────────────────────────────────────────────────────────────────────┤ │ 14. ANNEXURE-I OF ANNEXURE-I OF APPENDIX-20 │ │ APPENDIX-20 CRITERIA FOR EVALUATION OF │ │ THE PERFORMANCE OF │ │ xxxx xxxx CONTRACTORS FOR PRE- │ │ ELIGIBILITY │ │ xxxx xxxx │ │ TOR = AT/ST, where AT=Actual │ │ Time; ST=Stipulated Time in the │ │ AGREEMENT plus (+) Justified │ │ Period of Extension of Time. │ │ xxxx xxxx │ └───────────────────────────────────────────────────────────────────────────────┘
16.[5] of the Manual, which provide that the eligibility and bid evaluation criteria would be finalized in accordance therewith. The tender conditions do not expressly refer to “Annexure-A” being incorporated along with its amendments and modifications. In the absence of any reference to Appendix-20 in CPWD-6 or CPWD-7, we do not find any justification to read the amendment of 13.04.2017 into the subject NIT. The interpretation being placed on the clause by the respondent is not only consistent with its terms, but also reflects a “plain meaning” understanding, which other bidders may also have taken. Further, in our view, this is exactly the kind of issue that could have been raised in the pre-bid meeting. That is an appropriate forum for resolution of any ambiguities in the tender documents. The petitioner’s failure to do so demonstrates that he submitted his tender without any reservation, and the present dispute has been raised only after the technical bids were evaluated, and he was disqualified.
11. In this situation, the respondent cannot be faulted for interpreting the term "Stipulated Time" in the manner it did. This construction, even if it excludes justified extensions granted to the contractor, cannot be the subject matter of interference under Article 226 of the Constitution. In general, it is the tendering authority which is responsible for interpreting the tender conditions and the writ Court would interfere only if the construction is manifestly arbitrary or malafide. This principle has been stated by the Supreme Court in several judgments, including Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, wherein it was stated as follows:- “15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.”
12. Any revision of the tender conditions at this stage would entail reevaluation of all the bids submitted and consequential delay in construction of additional classrooms in government schools, which can also not be justified in public interest.
13. In the facts and circumstances aforesaid, the writ petition is dismissed, along with the pending applications, but with no order as to costs.
PRATEEK JALAN, J. S. RAVINDRA BHAT, J. APRIL 26, 2019 „hkaur‟