Full Text
JUDGMENT
S A INFRASTRUCTURE CONSULTANTS PVT LTD ..... Petitioner
Advocates who appeared in this case:
For the Petitioner : Mr Joy Basu, Senior Advocate with Mr Alok Agarwal, Mr Sudhir Mishra, Ms Ritwika Nanda, Mr Milan Tomar and Mr Abhinav Pandey, Advocates
For the respondent : Mr S. Nanda Kumar with Mr Parivesh Singh and Mr P.
Srinivasan, Advocates
HON’BLE MR JUSTICE ASHUTOSH KUMAR
1. This writ petition has been filed in respect of the Request for Proposal („RFP‟) for procurement of Independent Engineer Services for 8-Laning of a Section of NH-1 (new NH-44) from Mukarba Chowk at km 15.500 to Panipat at km 86.000 on BOT (Toll) basis in the state of Haryana. 2016:DHC:6135-DB
2. The petitioner participated in the bidding process pursuant to the said RFP. However, the respondent decided to open the financial bids by excluding the petitioner. The methodology of the evaluation process was that there would be two stages. The first stage would be the technical evaluation stage and the next would be the opening of the financial bids. A marking system was devised whereby marks were to be awarded at the technical evaluation stage as well as at the financial evaluation stage. The bidders, who got the top five highest marks at the technical evaluation stage, would be the only bidders whose financial bids would be opened. Thereafter marks would be awarded to these five bidders for their financial bids and the total marks given to the bidders, both in respect of the technical evaluation and financial evaluation, would be considered for award of the contract. One more aspect which needs to be mentioned is that the weightage to be given to the technical evaluation marks was 80% and the remaining 20% weightage was to be given to the marks obtained in the financial evaluation.
3. It may also be pointed out that the petitioner (S A Infrastructure Consultants Pvt. Ltd.) obtained 94.97 marks in the final technical scores after technical evaluation and was ranked third. Therefore, based on the technical evaluation marks, since the petitioner was within the top five bidders, it would, under normal circumstances, have progressed to the next stage and its financial bid would also be opened. However, by a letter dated 09.08.2016 issued by the NHAI (the respondent herein) all bidders were informed about the opening of the financial bids of the eligible firms which was slated to take place at 11:30 a.m. on 17.08.2016 at the NHAI Headquarter, New Delhi. The letter dated 09.08.2016 is of vital significance and therefore the same is reproduced herein below:- “NHAI/BOT/IE/11023/1/MC-P/2015/HR/362 09.08.2016 To, The Bidders Sub: Procurement of Independent Engineer Services for 8-Laning of Section of NH-1 (New NH-44) from Mukarba Chowk at Km 15.500 to Panipat at Km 86.000 on BOT (Toll) basis in the State of Haryana: Finalization of Technical Evaluation and Opening of Financial Bids-Reg.
1. Vide letter no.NHAI/BOT/IE/11023/1/MC- P/2015/HR181 dt.13.04.2016, the summary of Technical Evaluation was displayed on E-tender portal of NHAI for information of bidders wherein bidders were given opportunity to respond by 20.04.2016 (upto 11:00 hrs.) in case of any objection. The objections raised by some of the bidders were scrutinised and with the approval of Competent Authority final Technical Scores as mentioned below are hoisted for information of bidders:-
┌─────────────────────────────────────────────────────────────────────────────────────────────────┐ │
┌────────────────────────────────────────────────────────────────────────┐ │ Firms as under:- │ │
┌────────────────────────────────────────────────────────────────────────────────────────────┐ │ are as under:- │ │ Sl. No. Name of the Consultancy Technical Rank │ │ Firm Score │ │ i. URS Scott Wilson India 95.49 1st │ │ Pvt. Ltd. in JV with │ │ Consulting Engineers │ │ Group Ltd. and in │ │ association with AECOM │ │ India Pvt. Ltd. │ │ ii. Egis International S.A. in 95.17 2nd │ │ JV with Egis India │ │ Consulting Engineers Pvt. │ │ Ltd. │ │ iii. Getinsa-Payma, S.L. In 93.06 3rd │ │ Association with │ │ W.P.(C) No. 7214/2016 Page 13 of 17 │ │ 2016:DHC:6135-DB │ │ Segmental Consulting and │ │ Infrastructure Advisory │ │ Pvt. Ltd. │ │ iv. Aarvee Associates 92.41 4th │ │ Architects Engineers & │ │ Consultants Pvt. Ltd. │ │ v. Louis Berger Consulting 89.01 5th │ │ Pvt. Ltd. │ ├────────────────────────────────────────────────────────────────────────────────────────────┤ │ 14. In view of above, approval of Competent Authority │ │ may be solicited for the Minutes of the Meeting of │ │ Evaluation Committee dt. 12.07.2016 and for opening of │ │ Financial proposals of the Consulting Firms as per para │ │ 13(e) above.” │ │ (underlining added) │ │ 16. The Chairman, NHAI being the competent authority approved │ └────────────────────────────────────────────────────────────────────────────────────────────┘
LEA Associates South Asia 87.59 X
│ │ Pvt. Ltd. │ │ II. STUP Consultants Pvt. Ltd. 88.24 IX │ │ in Association with Ayoleeza │ └────────────────────────────────────────────────────────────────────────�
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LEA Associates South Asia Pvt. 87.59 X
│ │ Ltd. │ │ ii. STUP Consultants Pvt. Ltd. in 88.24 IX │ │ Association with Ayoleeza │ │ Consultants Pvt. Ltd. │ │ iii. Aarvee Associates Architects 92.41 V │ │ Engineers & Consultants Pvt. │ │ Ltd. │ │ iv. Bloom Companies LLC, USA in 86.66 XI │ │ Association with Credible │ │ Management And Consultants │ │ Pvt. Ltd. │ │ v. Egis International S.A. in JV with 95.17 II │ │ Egis India Consulting Engineers │ │ Pvt. Ltd. │ │ vi. Artefact Projects Ltd. 85.28 XII │ │ vii. MSV International Inc. In 88.68 VII │ │ Association with M/s. LSI │ │ Engineering & Consultants Ltd. │ │ viii. Getinsa-Payma, S.L. In 93.06 IV │ │ Association with Segmental │ │ Consulting and Infrastructure │ │ Advisory Pvt. Ltd. │ │ ix. Louis Berger Consulting Pvt. Ltd. 89.01 VI │ │ x. URS Scott Wilson India Pvt. Ltd. 95.49 I │ │ in JV with Consulting Engineers │ │ Groups Ltd. and in association │ │ with AEOM India Pvt. Ltd. │ │ xi. SMEC International Ply Ltd. in 88.55 VIII │ │ Association with SMEC (India) │ │ Pvt. Ltd. │ │ xii. SA Infrastructure Consultants 94.97 III* │ │ Pvt. Ltd. │ │ W.P.(C) No. 7214/2016 Page 4 of 17 │ │ 2016:DHC:6135-DB │ │ * There was Vigilance enquiry on account of submission │ │ of false/altered work experience certificates by M/s. │ │ Nicholas O‟Dwyer Ltd. JV with M/s SA Infrastructure │ │ Consultants Pvt. Ltd. Competent Authority approved │ │ initiating action against the Firm. Legal Opinion was │ │ sought. On the basis of Legal opinion, Competent │ │ Authority approved not to open the Financial Bid of M/s. │ │ SA Infrastructure Consultants Pvt. Ltd. It is further │ │ informed that the Financial Bids of eligible Firms shall │ │ be opened on 17.08.2016 at 11.30 AM, NHAI HQ New │ │ Delhi. │ │ This issues with the approval of Competent │ │ Authority. │ │ (P.K.Sabat) │ │ Manager (Tech)-H.” │ │ (underlining added) │ ├─────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 4. Insofar as this case is concerned, the note given after the │ └─────────────────────────────────────────────────────────────────────────────────────────────────�
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17. After hearing counsel for the parties, we are of the view that the course of action taken by the respondents insofar as the petitioner is concerned cannot be accepted. There are several reasons for this. First of all, there has been no determination on the show cause notices which were issued to inter alia the petitioner. Thus, there is no conclusive finding with regard to the four certificates of work experience submitted by Nicholas O‟ Dwyer Limited were alleged to be false or fabricated. Apart from this, there is no finding that there was any complicity on the part of the petitioner. The respondent should have taken a final decision in the matter and if and only if there was a finding against the petitioner could the respondent have taken the decision to exclude the petitioner from the stage of opening of financial bids. The second reason is that we get the impression that the respondent was bent upon excluding the petitioner from the stage of opening of financial bids and that is why it went on seeking opinions after the first two opinions were against the course of action which they have taken. We are of the view that the first two opinions given by the Vigilance Department of NHAI in the first instance and by the legal consulting firm of NHAI were correct and sufficient to enable the respondent to open the financial bid of the petitioner. The respondent ought to have followed that course of action and permitted the petitioner to participate in the second stage i.e., opening of the financial bids yet, it persisted and sought further opinion from a Senior Government Standing Counsel and furthermore from the CGM (Legal), NHAI. We do not understand as to how the CGM (Legal) could have given an opinion that the petitioner had used fraudulent means/misrepresented in the NHAI projects and that therefore the petitioner should not be entertained and be debarred from future projects also till he conclusively proves his bona fides with documents. This understanding of the law is completely contrary to what it actually is. Once show cause notices had been issued to the petitioner, unless they were taken to their logical end, there could not be any finding against the petitioner. Furthermore, we do not know how the CGM (Legal), NHAI could have given an opinion that the petitioner be debarred from future projects without even considering petitioner‟s replies to the show cause notices. This would clearly militate against the principles of natural justice. Even the opinion given by the Senior Central Government Standing Counsel to the effect that it is always advisable that during the pendency of enquiry the financial bids of the company should not be opened is erroneous and contrary to law. Thirdly, we do not see as to why the respondents did not take heed of the earlier two opinions and sought to rely on the latter two opinions which we have already indicated are contrary to settled legal principles.
18. Therefore, the decision of the competent authority not to open the financial bids of the petitioner in the circumstances narrated above is clearly not warranted in law. Consequently, we direct that the petitioner would be entitled to participate in the next stage and that the petitioner‟s financial bids would be opened because it is otherwise placed at rank No.3.
19. We are making it clear that we have not made any observation with regard to the merits of the show cause notices and the replies given by the petitioner and the final decisions to be taken in the matter.
20. The writ petition stands allowed as above. There shall be no order as to costs.
BADAR DURREZ AHMED, J AUGUST 30, 2016 ASHUTOSH KUMAR, J ns