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Judgment
This writ petition has been filed by the petitioner aggrieved against the decision of the Finance Committee meetings (Annex.1 & Annex.6) and initiation of fresh bidding process issued by the respondents and for seeking directions to the respondents to provide an opportunity of negotiation of price to the petitioner firm.
It is inter alia submitted in the writ petition that pursuant to the NIT No.33/2018-10 for execution of works under deposit work related to P.L. & J. of DI Pipe line, pump houses, pumping machinery, inlet arrangements etc. for providing water supply to Air Force Station, Phalodi, the petitioner firm participated along with four bidders and during evaluation of technical bid, due to lack of documents, four bidders were declared disqualified and only petitioner remained in the fray. The Evaluation Committee forwarded the bid price of the petitioner to the Finance Committee for approval with the submission that provisions of Rule 68 of the Rajasthan Transparency in Public Procurement Rules, 2013 ('the Rules, 2013') have been ensured. However, the Finance Committee by its decision dated 9/4/2019 rejected the bid.
The petitioner filed representation and approached this Court by filing SBCWP No.6271/2019. The writ petition was decided by order dated 8/5/2019 directing the respondents to decide the representation made by the petitioner. However, e-tender dated 20/5/2019 was issued, subsequent thereto in its meeting dated 7/6/2019 (Annex.6), the representation made by the petitioner was again rejected.
It is inter alia submitted by learned counsel for the petitioner that the action of the respondents in cancelling the tender process/rejecting the bid made by the petitioner is ex-facie incorrect/illegal inasmuch as the decision has been taken based on mere suspicion.
Submissions have been made that the Evaluation Committee on finding the requirements of Rule 68 of the Rules, 2013 having been fulfilled had recommended the single bid of the petitioner to the Finance Committee and the Finance Committee without recording any reason has rejected the bid of the petitioner.
Submissions have been made that the provisions of Rule 68 of the Rules, 2013 do not bar grant of contract in case of a single bid and only provides for safeguards in case of single bid and in the present case safeguards having been taken care of by the Evaluation Committee, there was no reason to reject the single bid of the petitioner.
Further submissions have been made that after the directions by this Court to decide the representation made by the petitioner, again the respondents by reiterating the baseless ground rejected the representation and, therefore, on that count the action of the respondents in rejecting the single bid and the representation made by the petitioner cannot be sustained.
Submissions have been made that the action of the respondents in calling for fresh bids also cannot be sustained as the earlier bid of the petitioner was very much valid and on that count the subsequent process also deserves to be quashed and set aside.
Reliance was placed on Food Corporation of India vs. M/s Kamdhenu Cattle Feed Industries : (1993) 1 SCC 71 and Union of India vs. Hindustan Development Corporation & Ors. : (1993) 3 SCC 499.
Learned Additional Advocate General appearing for the respondents vehemently opposed the submissions. It was submitted that the respondents have strictly complied with the provisions of the Rajasthan Transparency in Public Procurement Act, 2012 ('the Act, 2012') and the Rules made thereunder and once the Finance Committee came to the conclusion that the five bidders have participated in the tender process and out of them four bidders did not submit the lacking documents, despite the fact that the said documents were produced in other bids of the department, led the Finance Committee to come to the conclusion that there was apparently cartelisation among the bidders and, therefore, the process was cancelled and a fresh process was initiated.
Submissions have been made that the said view stands fortified from the fact that while the petitioner gave the bid which was 18.75% and 7.82% higher than the estimated cost and assessed justified cost of work respectively, while in the newly initiated tender process the lowest bid is at 18.60% below the estimated cost and, therefore, the Finance Committee was justified in rejecting the bid of the petitioner.
It was further submitted that in compliance of the directions of this Court, the respondents have dealt with the representation made by the petitioner and it cannot be said that the same was a non-speaking consideration and, therefore, the plea raised in this regard has no substance.
With reference to Rule 68 of the Rules, 2013, it was emphasized that in case of lack of competition i.e. single bidder, stringent requirements have been indicated and once the Finance Committee in compliance of the said requirements came to the conclusion that the bid cannot be accepted, the decision taken by it cannot be said to be perverse so as to require interference by this Court and, therefore, the petition filed by the petitioner deserves to be dismissed.
Submissions have also been made that the orders passed by the respondents are open to appeal under Section 38 of the Act, 2012 however, without availing the said remedy the present writ petition has been filed which deserves to be dismissed on account of availability of alternative remedy.
I have considered the submissions made by the parties and have perused the material available on record.
The facts are not in dispute, wherein, pursuant to the NIT five bidders responded, qua four bidders other than the petitioner there were deficiency in the eligibility documents and despite opportunity, they did not submit the lacking documents, resulting in petitioner being left as a single bidder. The Evaluation Committee by its agenda note, made recommendation to the Finance Committee to approve the price bid after negotiation with the petitioner. The Finance Committee in its meeting dated 9/4/2019 came the following conclusion:
"3) The agenda item was deliberated in detail. During deliberation, Committee observed even though compliance of provisions of Rule 68(1), 68(1) (a), 68 (1)(b), 68 (1)(c) and 68 (1) (e) of the RTTP Rule, 2013 have been ensured but compliance of provision of rule 68(1) (d) is not established looking to the circumstances that out of receipt five bids, four bidders did not submit the lacking documents but the same are being observed to participate in the other bids of the Department with required eligibility. After deliberations, it was decided to cancel the procurement process and reject the instant bid as per section 26 of RTPP Act, 2012 and Rule 72 of RTPP Rules, 2013 and to call for fresh tenders.
4) Conclusion of decision: Approved to cancel the procurement process and reject the instant bid as per section 26 of RTPP Act, 2012 and Rule 72 of RTPP Rules, 2013 and to re-invite bids through a fresh NIT."
Whereafter, on challenge being laid by the petitioner by filing writ petition, when the respondents were directed to consider the representation of the petitioner, the same was considered by the Finance Committee in its meeting dated 7/6/2019, wherein, after noticing the previous history, it came to the following conclusion:
"(ix) In compliance to directions of Hon'ble High Court, the committee deliberated about the issues raised by the bidder in his representation and observed that compliance of rule 68(1)(d) of RTPP Rules,2013 as to absence of bid cartelisation is not established looking to the circumstances. Thus decision taken by FC in its 755th meeting dated 09.04.2019 is found appropriate to cancel the procurement process as per section 26 of RTPP act 2012 and rule 72 of RTPP Rules 2013 to enhance competition in re-inviting bids through a fresh NIT. It was also decided that CE (Urban & NRW) shall issue detailed speaking order accordingly."
A perusal of the decision would reveal that the committee reiterated its finding, whereby, it was noticed that four bidders other than the petitioner did not submit the lacking documents but they were participating in other bids of the department with required eligibility. Apparently, no reason was forthcoming for their lack of interest in producing the lacking documents and that also by all the four bidders other than the petitioner.
The provisions of Rule 68 of the Rules, 2013 which deal with lack of competition and provides for a situation where after evaluation there is only one responsive bid, it is provided therein that the bid process shall be considered valid even if there is one responsive bid provided certain requirements were fulfilled including that there were no obvious indicators of cartelisation amongst bidders.
While the said requirement was required to be determined by the Finance Committee before approving the single bid, once it came to the contrary conclusion on account of unusual conduct of four bidders, who despite being eligible chose not to file the lacking documents, the action of the Finance Committee in reaching to a conclusion of cartelisation cannot be faulted.
Submissions made by learned counsel for the petitioner pertaining to lack of fairness in action and that mere suspicion was not sufficient with respect of judgment of Hon'ble Supreme Court in the case of Kamdhenu Cattle Feed Corporation (supra) and Hindustan Development Corporation (supra) apparently has no substance inasmuch as the conclusion arrived at by the Finance Committee cannot be said to be contrary to the material available before them.
So far as the passing of the order on the representation made by the petitioner and the same being non-speaking as submitted by learned counsel for the petitioner is concerned, there was no new material and circumstances and the representation made by the petitioner was confined to denial of cartelisation and, therefore, the reiteration by the Finance Committee pertaining to its earlier order also cannot be faulted.
It would be noticed that during the pendency of the writ petition, it was submitted on behalf of the petitioner that the petitioner was ready and willing to accept the contract at the rates offered by the successful bidder in the subsequent process. As already noticed, while the earlier bid was 18.73% higher than the estimated cost, for the same project the successful bidder has offered the bid at below 18.60% i.e. the over all difference between the two offers would be more than 37%, which speaks volume, in case the single bid of the petitioner was accepted by the respondents.
So far as the judgments in the case of Kamdhenu Cattle Feed (supra) and Hindustan Development Corporation (supra) cited by learned counsel for the petitioner are concerned, there is no dispute about the principles laid down by Hon'ble Supreme Court pertaining to fairness in action, however, the circumstances noted hereinbefore clearly reflects that there has not been any lack of fairness as alleged by the petitioner.
The plea raised by the respondents pertaining to availability of alternative remedy, in view of consideration made by this Court on merits, loses its significance.
In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.