M/s Dharani Geotech Engineers & Anr vs State Of Meghalaya & Ors

Sanjib Banerjee, CJ

The appeal is directed against a judgment and order of November 15, 2022 by which the appellants’ writ petition has been rejected.

The grievance that the appellants carried to the writ court was that the bid of the first appellant for a project for the repair and upliftment of the Umiam dam had been wrongfully rejected.

Two principal grounds have been canvassed in this appeal: that even the respondent employer and the bid evaluation committee set up by the employer were satisfied that the first appellant met the eligibility criteria for its financial bid to be considered; and, that that the initial satisfaction of the bid evaluation committee was modified upon obtaining the opinion from a Central government organisation which had no business to interfere in the matter.

The dispute is confined to the extent of the work experience of the first appellant herein. The documents furnished in connection with inviting bids for the project indicated the experience necessary for a contractor to be eligible for consideration. Clause 4.2(b) of the qualification criteria in the technical part of the notice inviting bids stipulated as follows:

“For the above and any other contracts substantially completed and under implementation as prime contractor, joint venture member, or sub-contractor between 1st January 2010 and application submission deadline, a minimum construction experience in the following key activities successfully completed:

Drilling: 10,000 Rmt

Grouting: 1130 MT

Concrete works: 880 Cum”

As a part of the bid documents submitted by the first appellant, it relied on an agreement between itself and APC Drilling and Construction Private Limited executed in or about May, 2020. In essence, such deed indicated that APC Drilling and Construction Private Limited had been awarded a contract by NTPC Limited for the consolidation grouting of rock mass below and around the flip bucket area at NTPC Koldam HPES. For such purpose, APC Drilling entered into the said agreement with the first appellant herein where the first appellant herein was described as an associate. However, the extent of the first appellant’s association in the project appears to have been restricted to only the grouting work involved as the words “for grouting works” invariably accompanied in parenthesis whenever the first appellant herein was described as an associate of APC Drilling in the relevant agreement. Both in the recital and in the primary clauses 1 and 2 of the relevant agreement, the first appellant was referred to as “associate (for grouting works)”.

Since the work at the NTPC site also involved drilling work and since the first appellant herein was associated with the project and undertook the work awarded by NTPC to APC Drilling, it relied on the said agreement and other documents pertaining to receipt of payments, labour license and the like in support of its assertion in its bid documents that it had the requisite work experience, inter alia, in terms of clause 4.2(b) of the qualification criteria as indicated in the technical part of the notice inviting bids.

It appears that the bid evaluation committee of the employer found the documents submitted by the first appellant herein to indicate the first appellant’s eligibility to be considered for appointment as a contractor for the Umiam project. However, despite the apparent satisfaction of the bid evaluation committee as to the bid responsiveness of the first appellant herein, the employer chose to consult the Central Project Management Unit under the Ministry of Jal Shakti of the Union to obtain a second opinion.

In response to the employer’s query in such regard, CPMU made an independent assessment of the bid documents submitted by the first appellant and was of the opinion that since the first appellant herein had been associated with the NTPC work at Koldam only for grouting purposes, it did not meet the requisite experience on account of drilling work as called for in the bid documents. The State as the employer, accepted the view of CPMU and, by the impugned notice dated October 20, 2022, communicated its rejection of the bid to the first appellant herein on the ground that the bid was non-responsive and the first appellant technically not qualified. The exact reason furnished by the employer in such regard is quoted:

“With reference to the above, it may be informed that the Technical Evaluation Committee and CPMU have evaluated the bids for the above mentioned work and have declared the bid submitted by you as non-responsive and technically not qualified due to the reason indicated below:-

ECQ 4.2(b) Key Activities: (1) i.e. executed drilling quantities. As per the documents submitted for the Work “Consolidation Grouting of Rock Mass Below and Around flip bucket are of NTPC Koldam HPES”, it has been found that M/s Dharani Geotech Engineers was an associate in the quoted project, and had carried out works pertaining to Grouting. The deed of joint undertaking executed by the parties for the above quoted project also states that the associate was engaged to carry out grouting works. Hence, the documents indicates that the drilling activities have been carried out by the Main Contractor i.e. M/s APC Drilling and Construction Pvt. Ltd. Therefore, not qualified under EQC 4.2(b).”

The first appellant immediately responded to the notice of rejection by issuing a letter on October 23, 2022, inter alia, asserting that notwithstanding APC Drilling being the superior contractor in respect of the NTPC project, the entire work had been done by the first appellant herein and even payments in respect thereof had been released to the first appellant. To boot, the first appellant called upon the State to verify from NTPC as to the nature of the work undertaken and completed by the first appellant in the NTPC project. A detailed email also followed from the first appellant along with other papers apparently seeking to assert that the first appellant had the requisite experience in drilling.

Though several judgments were referred to before the Single Bench, primarily on the extent of court interference in matters pertaining to contracts and acceptance or rejection of bids, since the State has been hardly called upon in the present case, the authorities have not been referred to in course of the present appeal.

Two primary questions appear to have been framed by the Single Bench in assessing the matter: whether the involvement of CPMU was illegal or arbitrary; and, whether the first appellant herein had demonstrated that it met the eligibility criteria to be considered for the relevant project. Indeed, these were the only questions which were relevant in the context of the first appellant’s challenge to the notice of rejection of October 20, 2022.

As to the first ground, it appears to be a complete non-starter. The matter may have been different if the employer had accepted the bid evaluation committee’s satisfaction and communicated the same to the bidder and thereafter purported to change its mind on the basis of any opinion obtained from a third party. However, such was not the case. When an employer seeks to assess the technical expertise of a bidder in a crucial infrastructure project, the employer, particularly a government employer, is well within its rights to consult persons or organisations that it deems to be experts in the relevant field. Surely, the Central Project Management Unit of the Ministry of Jal Shakti could have been deemed to be an expert considering the nature of the work involved in the present project. Thus, there cannot be any grievance on the part of the first appellant herein in the State as employer in the present case having consulted CPMU or having obtained a second opinion from such body.

The next part of the first issue is the more important aspect. Whether or not an employer has conducted an assessment on its own, when a second opinion is sought and obtained and the employer accepts such second opinion upon its application of mind, the employer cannot be faulted therefor. This was not a case of a busy-body seeking to intervene and try to change the employer’s opinion as to the bid responsiveness of the first appellant herein. It was only an endeavour on the part of the employer to ensure that the assessment was correct. The employer’s reference of the matter to an expert body and the employer’s subsequent acceptance of the expert opinion in such regard must, necessarily, be seen in such light.

The fact that CPMU may have been mentioned in the contract as a consultant has no bearing on the issue. Indeed, CPMU need not have been mentioned in the contract at all. CPMU was considered by the employer in this case to be an expert in the matter of assessing the technical qualification of the bidders apparently found suitable. It was not as if the employer referred only the case of the first appellant bidder to CPMU. The reference pertained to such bids that had been apparently found to be responsive and CPMU’s opinion also covered both the bids.

It is the other issue which has arisen which is of paramount importance. It is elementary that when some eligibility criteria are specified and a bid is made in pursuance thereof, the bid should be complete in itself to indicate how the eligibility criteria were met. The bidder has to cover all parameters pertaining to eligibility in the bid documents itself and after submission of bid, generally, no further material can be submitted to improve the bid or to demonstrate the qualifications of the bidder. In certain cases, particularly in complex engineering projects, clarifications are sought after receiving the technical bid and the correspondence exchanged in such regard are also considered to be a part of the bid since they precede the actual assessment of the bid.

In the present case, certain clarifications were sought by the employer from the first appellant herein. However, such queries pertained to the status of the first appellant in the NTPC project as an associate of APC Drilling. Though the initial letter of the employer in such regard referred to clause 4.2 of the eligibility criteria under the technical part of the bid documents, no clarification was sought as to whether the first appellant had the requisite experience of completing 10,000 Rmt of drilling work. Since the question was not asked, nothing was furnished on behalf of the first appellant in response to the queries raised by the employer to indicate that it had the requisite experience in respect of drilling.

Since the writ court found that the bid submitted by the first appellant did not completely indicate the eligibility of the first appellant qua drilling and the writ court also, quite appropriately, found that there was nothing arbitrary or illegal in the employer in the present case consulting CPMU before accepting or rejecting the technical bid of the first appellant herein, the order impugned does not call for any interference.

Accordingly, WA No.42 of 2022 is dismissed.

MC (WA) No.23 of 2022 is disposed of.

There will, however, be no order as to costs.