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Judgment
Heard Mr. Ashwin Panickar, learned counsel for the petitioner. Also heard Mr. Kishore Bhaduri, learned Senior counsel, assisted by Mr. P.R. Patankar, learned counsel, appearing for the respondents.
The present writ petition has been filed by the petitioner with the following prayers:
“10.1 The Hon’ble Court may call for records from the respondents No. 1 to 3.
10.2 The Hon’ble Court may issue an appropriate writ or direction, including a writ of certiorari quashing order dated 20.04.2021, annexure P/5 herein with regard to tender dated 03.04.2021, annexure P-4 herein and direct restoration of order dated 22.10.2018 for determination of eligibility criteria for tender dated 03.04.2021 as the same is in concurrence with the guidelines for store/purchase contracts laid by the Central Vigilance Commission in circular dated 17.12.2002 annexure P-6 herein.
10.3 The Hon’ble Court may direct the Respondents to hold the petitioner as eligible bidder in the tender dated 03.04.2021, annexure P-4 herein.
10.4 The Hon’ble Court may grant cost of the petition to the petitioner.
10.5 The Hon’ble Court may issue any other writ, order (s), direction(s) or any other relief as this Hon’ble Court may deem fit and proper in the nature and circumstances of the present case in the interest of justice.”
Undisputed facts of the case is that on 18.01.2019, the Bhilai Steel Plant published Notice Inviting Tender (NIT) for work consisting of providing assistance of maintenance and up-keep of the Battery Heating System (BHS). The said work was for a duration of 24 months and required the contractor to depute adequately trained manpower for assisting in various activities of BHS round the clock in 3 shifts and general shifts as per applicability to achieve uninterrupted daily production and proper up-keep of the system. The eligibility for the work required experience of successfully carrying jobs for ‘maintaining/refurbishing’ heating system in recovery type of coke oven batteries or ‘operation/cleaning/repair jobs’ of technological equipment in hot areas of steel industry. In support of the required experience parties were required to submit self attested photocopies of work orders and corresponding completion certificates/RA bills paid/ any other documents evidencing value of completed portion of work. The petitioner being eligible submitted his bid and on 17.02.2020 petitioner was awarded the contract of providing assistance for maintenance and up-keep of the BHS.
Learned counsel for the petitioner submits that on 03.04.2021 the Bhilai Steel Plant published a NIT tender for work consisting of providing assistance in carrying Battery operations and up-keep in taller Batteries (7mtrs.). The scope of the work consisted of jobs like Oven dressing after oven is pushed, providing assistance to oven pushing and oven charging activities, controlling fugitive emissions, removing spillages in all levels of assigned batteries and general housekeeping in both general shift and shift working hours and in this regard the contractor was required to depute adequately trained manpower for assisting said operations of the plant round the clock in 3 shifts and general shifts to achieve uninterrupted daily production and proper up-keep of the battery and eligible for bidding it required prior experience of successful completion of similar work during last five years costing not less than Rs. 180 lakhs or two similar works each costing not less than Rs. 144 lakhs. Learned counsel for the petitioner also submits that on 20.04.2021, the office of respondent No. 2 giving reference to Clause 3.1(1) of the Purchase/Contract Procedure 2020 issued an office order wherein it was stated that henceforth experience of ongoing contract shall not be considered in support of eligibility and experience for non-project cases. It is further submitted by him that having completed maintenance and up-keep of the BHS of value of Rs. 1,87,38,674.05 as on 31.03.2021 in the contract valued at Rs. 3,72,62,499.60 awarded on 17.02.2020 to the satisfaction of the Bhilai Steel Plant and therefore, petitioner is eligible to participate in the NIT dated 03.04.2021. He further stated that despite meeting the eligibility criteria, petitioner is technically ineligible to bid for NIT dated 03.04.2021 due to the order dated 20.04.2021, whereby experience of ongoing contract is not being considered for meeting eligibility and experience criteria.
Learned Senior counsel for the respondents submitted that the petitioner has not appeared before this Court with clean hands and has suppressed the material facts. The petitioner has failed to submit the material facts and content of the office Order No. O&M/procedure/1307 dated 22.10.2018 in which the amendment/clarification has been made and notified by the impugned office order dated 20.04.2021 issued by Deputy General Manager (Organization and Methods) SAIL BSP. The impugned office order dated 20.04.2021 has been issued notifying the amendment/clarification in sub-clause (a) of Clause B Guidelines of main office order dated 22.10.2018 and the impugned notification has clarified the meaning of term ‘Completer Work’ clarifying that the work which had been successfully completed and further it has been notified that experience of ongoing contract shall not be considered. It is further submitted by him that “Revision of the guidelines for drawing eligibility Criteria in Open Tender Enquiries for non-project Contract Cases” was notified vide main office order dated 22.10.2018 with the objective of having uniform standard for drawing eligibility criteria in open tender cases. The main office order contains three principle inter related guidelines at Clause A, B and C. Guideline A has three sub-clauses, (I) being related to Financial Capabilities, (II) related to work experience and (III) containing clarification related to meaning of “Similar Work”. Second sub-clause of Clause A clearly stipulates that the work experience should be of “Completed Work”. Sub-Clause II of main officer order is reproduced below for ready reference:
“II. Experience of having successfully completed similar works during last 5 years ending last day of the month previous to the one in which tenders are invited should be either of the following:-
a) One similar completed work costing not less than the amount equal to 50% of the reference value.
b) Two similar completed works each costing not less than the amount equal to 40% of the reference value.”
Learned Senior counsel submits that the contention of the petitioner is not correct as even before the amendment, the aforesaid clause specifically mentioned that “In support of eligibility and experience, the tenderer is required to submit self attested photocopies of work orders, completion certificate (by the concerned authority etc.). In case work completion certificate is not issued, RA bills paid or any other document(s) evidencing value of completed portion of work may also be considered.”
We have heard the learned counsel for the parties and perused the materials available on record.
Taking into consideration the submissions made by the learned counsel for the parties, it is evident that the aforesaid clause clearly stipulates that the completion certificate is the most important document which is required to be submitted in support of the eligibility and experience criteria of the tender. Thus, no interference is called for by this Court in exercise of its extraordinary power under Article 226 of the Constitution of India.
Accordingly, the present writ petition is dismissed.