(Prayer: This Petition is filed under Articles 226 & 227 of the Constitution of India, with a Prayer to call for the records relating to issue of the Impugned Order Dtd:16.2.2017 [Annexure-P] of the R-1 and after perusal set aside the same and declare the petitioner's Tender Application as most responsive and to issue work order in respect of the Notification Dtd:25.2.2016 vide Annexure-C to execute the work relating "Comprehensive Development of ward roads including Drain, Footpath and asphalting in Ward No.35, 36 & 45 within a time frame specified by this Court.
This Petition is filed under Articles 226 & 227 of the Constitution of India, with a prayer to call for the records relating to issue of the impugned proceedings of the meeting of the Tender Scrutiny Committee Dtd:11.11.2016 under the Chairmanship of the R2 (Annexures M & M1) relating to awarding of the works pursuant to the Tender Notification Dated 22.01.2016 and after perusal set aside the same and etc.)
1. The petitioner in W.P.NO.7881/2017 is assailing the order dated 16.02.2017 whereby the Government through the said order has cancelled the earlier tender process and ordered retendering of the work relating to Malleswaram Ward Nos.35 and 45 Mathikere subdivision. The petitioner in W.P.No.9569/2017 is also assailing the very same order. The petitioner in W.P.No.6402/2016 is assailing the order dated 21.11.2016 ordering retender for Gandhinagar Division. Insofar as the Tender Accepting Authority ('TAA' for short) rejecting the tender of the petitioner and considering the bid of the L2 tenderer is also assailed. In W.P.No.62068/2016 the petitioner is seeking consideration of the bid of the petitioner relating to Chamarajpet sub-division and issue work order in that regard. In W.P.Nos.12735/2017, 12736/2017 and W.P.No.6293/2017, the petitioner is seeking review and recall of the earlier order dated 04.08.2016 passed by this Court in W.P.No.30127/2016, W.P. No.30635/2016 and W.P.No.28986/2016.
2. Since all these petitions relate to the earlier tender notification which has the genesis for the present dispute, the petitions are considered together.
3. The petitioners in W.P.Nos.7881/2017, 60402/2016 and 62068/2016 viz., M/s Aishwarya Infrastructure and Developers ('M/s. AID' for short) and the petitioners in W.P.Nos.9569/2017, 12735/2017, 12736/2017, 6293/2017- Sri M.S.Venkatesh were among the contractors who had responded to the tender notification issued by the Bruhat Bengaluru Mahanagara Palike ('BBMP' for short) which had been floated through the tender notification dated 25.02.2016 for carrying out the comprehensive development of the roads including drain, footpath and asphalting in the different wards of Malleswaram, Gandhinagar and Chamarajapet divisions. The bids of both the said contractors were found technically qualified and the financial bid was opened. The financial bid of M/s.AID was found to be the lowest and as such was classified as L1. The financial bid of Sri M.S.Venkatesh was found to be L2.
4. The said L2 bidder raised certain queries at that stage due to which the revaluation of the technical bids of M/s. AID was made. In the process M/s. AID was held not technically qualified and the bid was rejected through the endorsement dated 07.05.2016. Being aggrieved by such action, they were before this Court in W.P.No.28986/2016. In respect of a similar action taken relating to the other divisions, the petitions in W.P.Nos.30127/2016 and 30635/2016 were filed. This Court on taking note of the contentions, including the objection that had been raised by the BBMP and the manner of consideration made, was of the opinion that the procedure followed by the Tender Scrutiny Committee ('TSC' for short) to reevaluate in the manner as done was not justified. The procedure as contemplated in law viz., the consideration to be made by the TAA based on the evaluation made by the TSC was emphasized and in that view the impugned endorsement was set aside and the BBMP was directed to proceed from the stage where the financial bid had been opened. A similar consideration had been made in W.P.No.30605/2016, the connected petition. The said L2 Tenderer Sri M.S.Venkatesh was not a party to the said proceedings and it is in that view presently the writ petitions in W.P.No.6293/2017, W.P.No.12735/2017 and W.P.No.12736/2017 are filed seeking recall/review of the said earlier orders passed by this Court. Insofar as the official respondents are concerned, in view of the said orders passed in the earlier writ petitions, they have proceeded further in the matter and the present impugned action has been taken.
5. At the outset, since in W.P.No.6293/2017, W.P.No.12735/2017 and W.P.No.12736/2017 the petitioner has sought for recall of the order dated 04.08.2016 passed in W.P.No.28986/2016, W.P.No.30127/2016 and W.P.No.30635/2016, whether the prayer is to be accepted in that regard is to be decided as it will have a bearing on the consideration on other aspects. The petitioner Sri M.S. Venkatesh was also the tenderer in the earlier process and was placed at L2 as already noticed above. Though the TSC at the first instance had found the bid of M/s.AID as technically qualified, the re-evaluation was made in view of the objection raised by Sri M.S. Venkatesh which in fact had been noticed by this Court at the earlier instance. Firstly, the objection of another tenderer at that stage would not arise. Secondly even after this Court had through the order dated 04.08.2016 directed the further consideration to be made as indicated in the order, at that stage, Sri M.S. Venkatesh did not make out any grievance but waited till the entire process was completed and a decision was taken. The decision to challenge is taken only when it was ordered to retender the work and after M/s.AID challenged that process.
6. That apart, it is to be noticed that in the earlier petitions in W.P.No.28986/2016 and connected petitions the Tender Inviting Authority ('TIA' for short) was a party to the petition, which had urged the very same contentions which is now sought to be urged by Sri. M.S.Venkatesh relating to M/s. AID not satisfying the condition of pre-requisite qualification contained in Clause 3.2(b) of the tender documents and that the re- examination had been made by the TSC at the instance of Sri M.S.Venkatesh. This Court having adverted to that aspect of the matter was not very much concerned about the decision itself, but keeping in view the scope of judicial review in a writ petition relating to certiorari proceedings had found fault with the procedure adopted by the TSC to arrive at its decision and it is in that view the clock was set back to the stage at which the error in procedure was committed and directed to proceed further in the matter. The tender process not being completed and the work not having been awarded to Sri M.S.Venkatesh at that stage, no right had accrued in his favour to entitle a right of hearing in the earlier petitions before this Court and as such he was not required to be heard. In that circumstance, reviewing or recalling the earlier orders dated 04.08.2016 passed in W.P.No.28986/2016, W.P.No.30127/2016 and W.P. No. 30635/2016 at his instance does not arise even at this point in time. Accordingly the petitions in W.P. No. 6293/2017, W.P. No. 12735/2017 and W.P. No. 12736/2017 lack merit and the prayer made therein is liable to be rejected.
7. In the above backdrop, the composite issue that arises in the combination of the prayers contained in the remaining petitions is as to whether in that circumstance, M/s. AID should have been given the benefit of the work order due to the directions contained in the earlier order dated 04.08.2016 in W.P. No.28986/2016 and connected petitions or whether the TAA and the TSC were justified in the procedure adopted by them after disposal of the earlier petitions? Further the issue is also as to whether if such procedure is held justified and if M/s. AID was rightly held excluded, in that circumstance should the work order have been given to Sri M.S.Venkatesh who was the only other tenderer who had qualified in the technical evaluation and thus was the L2 tenderer in the analysis of the financial bid? If not, whether the ultimate decision of the Government to direct retendering the same work was justified or not ?
8. To determine the above aspects, the true purport of the order dated 04.08.2016 passed in W.P. No. 28986/2016, the reasons of which was adopted for disposal in W.P.Nos.30127/2016 and 30635/2016 is to be taken note and be kept in perspective. Incidentally since the very Bench of this Court had decided the earlier set of writ petitions, what weighed in the mind of this Court and to what extent the consideration was made therein is not far to seek. In that regard while answering the first aspect to decline the prayer to recall or review the order, it has been clearly indicated that what was kept in view was the examination of the correctness or otherwise of the procedure adopted in the decision making process and not so much the decision itself. In that view, the endorsement dated 07.05.2016 issued rejecting the technical bid of M/s.AID on making a second evaluation by the TSC itself and the circumstance under which it was done and the procedure that was followed was found fault with, the endorsement was accordingly quashed and the TAA was directed to proceed from that stage onwards.
9. For better appreciation, it is appropriate to reproduce the relevant portion of the order in W.P. No.28986/2016 which is as hereunder;
"8. Therefore, if in that light the evaluation as has been made, keeping in view the nature of the observations made in the note sheets which directs reconsideration is kept in view, the consideration as made purportedly by the Committee appears to be only to satisfy the decision, which had already been taken to disqualify the petitioner as contained in the note sheet and to thereafter consider the sole bidder, who would be in the field. Hence, if the subsequent evaluation as made is considered in the background of the evaluation, which was made by the Committee, at the first instance it is seen that with regard to the work experience to be satisfied as provided under Clause 3.2(b), the Committee in fact had referred to the total cost of the work that had been undertaken by the petitioner as well as the other tenderer Sri.M.S.Venkatesh and thereafter has held that both of them would meet the eligibility criteria only after such evaluation the financial bid was opened. If that be the position, the nature of the subsequent consideration made would indicate that the same is done only with an object of disqualifying the petitioner, in view of the note that had already been put up. That apart, the re- evaluation also does not indicate that any other additional consideration had been made by the Committee except stating that he does not meet the eligibility criteria for which no basis is indicated.
9. Hence, in the said circumstances when the Committee had found the petitioner to be eligible at the first instance and in that light, the financial bid had been open and the petitioner was found to be L1, the respondents re-visiting the aspect regarding the technical evaluation once again without strong basis will not be acceptable. Such action would indicate that the same has not been done with a bonafide intention of evaluating the bids in an appropriate manner, but is only to disqualify the petitioner by raising such issues belatedly with a malafide intention.
10. In addition what is also to be kept in view is that, as rightly pointed out by the learned Senior Counsel for the petitioner, a Technical Evaluation Committee had evaluated the tender documents and found the petitioner to be eligible. It is only the Tender Accepting Authority, which could have either accepted or rejected such evaluation for reasons to be recorded and not an Executing Engineer as has been done and that too by raising a note for approval seeking for a re-evaluation. Therefore, if all these aspects are kept in view, the endorsement dated 07.05.2016 at Annexure 'J' cannot be sustained. If that be the position, the second evaluation as made, based on which such endorsement has been issued also would not be sustainable."
(Emphasis is supplied herein)
10. The consideration as made in W.P.No.28986/2016 will leave no room for doubt that this Court did not approve the procedure adopted where, after the evaluation was made by the TSC a note was put up as at Annexure-L to that petition relating to the non satisfaction of the condition contained in clause 3.2(b) of the tender documents. Based only on the same the TSC which had become functus officio in so far as the technical and financial evaluation stage in the process had at that stage re-assumed the role once over again, that too after the financial bid had been opened. It is in that view this Court had held, from that stage onwards it was the prerogative of the TAA and not for the TSC to reverse the process based on a note of the Executive Engineer. The fact that this Court had clearly indicated that the TAA could have either accepted or rejected for reasons to be recorded will make it clear that this Court had not determined the absolute right in favour of M/s.AID to be issued with the work order as they were L1 tenderer but allowed the process to be taken forward from the stage wherein the financial bid had been evaluated to thereafter be done in accordance with law by the TAA.
11. If that be the position, what was desired by this Court was that the report of the technical and the financial evaluation which was already made by the TSC was to be collated and be taken to the next stage by submitting it to the TAA who was required to process the same from that stage. The direction issued by this Court had not circumscribed the consideration to be made by the TAA in any particular manner. Therefore, as per the protocol for tender evaluation, TAA can reassess the documents in the backdrop of the evaluation report of the TSC, the material available on record and take a decision regarding evaluation which can also be different from the one taken by the TSC or it may also be open to the TAA to send it back to the TSC for re-evaluation, if it is not satisfied with the evaluation made. However, such decision taken will be for the reasons to be recorded which will be open for judicial scrutiny in the appellate or such other forum where the remedy is provided in law.
12. In that light, the consideration in that regard being the similar in respect of the work in the different divisions which are the subject matter herein, the consideration as made relating to the Gandhinagar sub division and raised in W.P.No.60402/2016 is taken note for decision making in these petitions. The consideration made after the direction in the earlier petition is as seen in Annexure M and M1. Though the same would record as the proceedings dated 11.11.2016 of the TSC, the body of the proceedings will indicate that detailed reference is made to the order dated 04.08.2016 passed in W.P.No.28986/2016 in its correct perspective and in that light has recorded that the committee which has considered the matter is itself the TAA and in that view having assessed the material has taken the independent decision that M/s. AID does not satisfy the criteria as the documents are found to be fabricated and has decided that the work be given to the L2 tenderer Sri M.S.Venkatesh, which decision is to be implemented after approval of the Government keeping in view the scheme under which the work is undertaken.
13. Therefore, in so far as the procedure that is followed by the BBMP subsequent to the earlier order dated 04.08.2016 of this Court, there is no legal flaw committed. With regard to the subject of the decision itself, in holding that the documents submitted by M/s.AID being fabricated and therefore the Work Qualification Certificate dated 03.03.2016 did not satisfy the qualification criteria, extensive arguments are addressed by the learned senior counsel for M/s.AID and is also contended that the very same certificate is accepted by the BBMP to award the work to them in Byatarayanapura Division and the learned counsel for Sri M.S.Venkatesh, on the other hand refers to the said certificate with reference to the tender cost indicated therein and would seek to point out that the work undertaken as per the other tenders and the bills paid to M/s.AID, would not match up to the value indicated therein. The learned counsel though would also refer to certain aspects to indicate the manner in which it has been fabricated, I do not propose to analyse the said contentions to render a finding on that aspect herein. That is for the reason, firstly such seriously disputed questions of fact which may require evidence to be recorded cannot be gone into in the limited scope available to this Court in a writ petition. Secondly, if on such conclusion in the impugned order the work order was actually awarded to the L2 tenderer, M/s.AID would have had the remedy of assailing it in an appeal as provided under Section 16 of KTPP Act wherein the re-appreciation of the material was possible. Further, in the present circumstance the decision is also to initiate action in accordance with law, including against the official of BBMP who is stated to have aided the fabrication and as such it would not be appropriate for a writ Court to dwell into those aspects as the defence is to be putforth in such proceedings.
14. Hence, for all the above reasons, it cannot be said that the action taken by BBMP pursuant to the earlier order is in any way contrary to the direction issued therein and as such merely because this Court had directed to proceed from the stage of opening the financial bid, it does not mean that it was mandated in the order of this Court that M/s.AID being the L1 tenderer was to be awarded the work. Hence the prayer made in W.P. Nos. 60402/2016 and 62068/2016 is also not sustainable.
15. The issue which therefore remains for consideration is as to whether the decision taken by the Government to direct the BBMP to retender the work in question is justified. On that aspect, in so far as the grievance put forth by M/s.AID in W.P. No. 7881/2017 the same would not require this Court to advert to further details since in the circumstance where the right for award of work as claimed by M/s. AID has been declined, the question of M/s. AID being aggrieved by the decision to retender will not arise. The learned counsel for Sri M.S.Venkatesh while assailing the action taken to retender the very work which the BBMP being TAA had decided that it be awarded to the Sri M.S.Venkatesh as he was the L2 tenderer when M/s. AID though the L1 tenderer had not qualified in the technical evaluation would refer to the provision contained in Section 14 of KTPP Act with regard to the limited scope available therein to cancel the tender or order retender in terms of Section 15 of KTPP Act. In that circumstance, it is contended that the action taken is not justified.
16. In that regard, it is seen that after the BBMP had sent the file to the Government seeking for approval of the further action, the Addl. Secretary to the Urban Development Department (BBMP) has placed it before the Principal Secretary, Urban Development Department through the communication dated 08.11.2016 (Annexure R1). The Principal Secretary on verification of the file has noted as follows, "In view of the fact that the tender process is vitiated, it is ordered to retender the works".
17. The BBMP having acceded to the same has retendered one of the works, the further process of which is held up due to these petitions and the retendering of the other works are kept on hold due to the pendency of these petitions. One of the Residents Welfare Association has filed I.A.No.2/2017 in W.P.No.7881/2017 seeking to implead themselves so as to highlight the hardship being faced by the general public due to the delay in completion of the work as the road condition has deteriorated in the area where the work was to be undertaken.
18. The objection statement filed on behalf of the Government would indicate that the Government on keeping in view the entire sequence of events which led to the earlier round of writ petition and the manner in which the tender process had been undertaken was of the opinion that the entire process of transparency under KTPP Act is not followed by the TIA and TAA during the process of tender and considering that the tender for asphalting major roads in the centre of the city was invited on 24.02.2016 and a year had passed without progress, a conscious decision was taken to cancel the tender process as the tender had not been awarded in favour of any bidder and no right had been created. Reference is made to the power available under Sections 14 and 15 of the KTPP Act.
19. In the above background as noticed, the litigation with r
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egard to the tender process commenced with the petition in W.P.No.28986/2016 at a stage when the tender process had not even been completed. On the evaluation of the technical and financial bid having been done, one of the tenderers Sri M.S.Venkatesh had raised objection with regard to the documents relied on by the other tenderer M/s. AID and the consideration made thereafter was as if an adversarial litigation was being adjudicated in the tender process itself. The nature of the allegations and counter allegations made in that regard relating to the evaluation process with reference to the tender documents will indicate that Rule 23 of the KTPP Rules 2000 was followed more in breach since the confidentiality was not maintained. Further the learned counsel for Sri M.S.Venkatesh, the L2 tenderer while opposing the prayer made by M/s.AID seeking for issue of the work order in their favour pursuant to the tender evaluation made on 24.07.2016 has referred to the TSC proceedings as at Annexures-D and D1 in W.P.No.60402/2016, to point out the irregularity in the proceedings wherein the Superintending Engineer has not signed the proceedings while the Executive Engineer who has signed was at the verge of retirement. The learned counsel has also referred to Rule 23 to point out that the confidentiality has not been maintained as otherwise M/s. AID could not have produced the documents along with the earlier writ petition. The said contentions in my opinion would act as double edged sword. It is the very same irregular proceedings dated 24.07.2016 under which Sri M.S.Venkatesh was also held to be technically qualified and as such the benefit of such proceedings cannot be available to either of the parties. Hence if all these aspects of the matter are kept in view, as rightly observed by the Government, the entire process was contrary to the requirement under the KTPP Act and the conclusion that the tender process was vitiated is justified so as to cancel the process and retender the work. Hence W.P.No.9569/2017 would also fail. The impleading applications are disposed of without specific orders though the contentions urged therein has formed part of the consideration. In the result, the W.P.Nos.7881/2017 60402/2016, 62068/2016, 6293/2017, 9569/2017, 12735/2017 and 12736/2017 are dismissed with no order as to costs.