Supreme Court of India
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD AND ANR.versusM/S AMAR INFRASTRUCTURE LTD. AND ORS.
- Citation
- 2017 INSC 230
- Decided
- 9 March 2017
- Disposal
- Appeal(s) allowed
Holding
A Hot Mix Plant was not a mandatory pre‑qualification requirement, so L‑2 was duly qualified and the High Court’s order quashing the award was erroneous.
Summary
The Chhattisgarh State Industrial Development Corporation (CSIDC) floated a tender for infrastructure up‑gradation and shortlisted two bidders, L‑1 (Raipur Construction) and L‑2 (Arcons Infrastructure). Mis. Amar Infrastructure challenged the qualification of L‑2 on the ground that it did not possess a Hot Mix Plant, alleging manipulation of the technical evaluation sheet. The High Court, relying on a Cyber Crime Cell report, quashed the award to L‑1, holding L‑2 was illegally qualified. On appeal, the Supreme Court examined the tender documents and found that a Hot Mix Plant was not a mandatory pre‑qualification criterion, and both L‑1 and L‑2 satisfied the technical requirements. No malafide intent or arbitrariness was shown, and 50% of the work was already completed, so interference was unwarranted. The Court set aside the High Court’s order, upheld the award to L‑1, and dismissed the writ petition.
Issues considered
- Whether the absence of a Hot Mix Plant, which was not a mandatory pre‑qualification requirement, rendered L‑2 ineligible for opening its financial bid.
- Whether the High Court erred in quashing the contract on the basis of alleged manipulation of the technical evaluation documents.
- Whether the Supreme Court should interfere with the award when a substantial portion of the work was completed and no malafide or arbitrariness is established.
- Whether the Cyber Crime Cell report indicating document modification affects the validity of the technical evaluation.
Subjects
tendertechnical evaluationpre‑qualificationHot Mix Plantcontract awardCyber Crime Celldocument manipulationpublic interestjudicial interferenceprocurement law
Judgment
[2017] 6 S.C.R. 974
A CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT
CORPORATION LTD AND ANR.
v.
MIS AMAR INFRASTRUCTURE LTD. AND ORS.
B (Civil Appeal No. 4248 of 2017)
MARCH 09, 2017
[ARUN MISHRA AND AMITAVA ROY, JJ.)
Tenders - Technical evaluation - Challenge to - Chhattisgarh
C State Industrial Development Corporation Ltd. (CS/DC) floated
tender with respect to work relating to upgradation of infrastructure
- Tenders opened for determining whether the bidders satisfied the
pre-qualification criteria - CS/DC prepared .charts of technical
evaluation documents and placed before the Tender Evaluation
Committee - Committee selected two bidders ranked as L-1 and L-2
D - Respondent was disqualified - Aggrieved, writ petition filed by
respondent on ground that L-2 had been found eligible despite not
having a Hot Mix Plant - High Court held that L-2 was made to
qualify in spite of the fact that it wqs not having Hot Mix Plant and
there was discrepancy in the document of technical evaluation filed
E by the CS/DC and the one filed by respondent with respect to Hot
Mix Plant, therefore L-2 was illegally included in the qualified list
of bidders and thus, contract granted to L-1 was quashed - On
appeal, held: Opinion of High Court cannot be accepted as relevant
tender documents were not placed for consideration before High
Court - Also, Hot Mix Plant was not a mandatory requirement so as
to open the financial bid - Thus, the financial bids of two bidders
who succeeded at the pre-qualification stage had been rightly .opened
and considered - In absence of malafide or arbitrariness which is
not made out in the instant case as 50 per cent of the work had
been completed when the order was passed by the High Court, hence
·G
no interference was warranted in the present case - Insofar, as
document relied upon by the CS/DC is concerned, as per report of
cyber crime cell there is no manipulation therein - Respondent was
disqualified and had not questioned the qualification of the
successful bidder, L-1 bufthat of L-2, on ground that financial bid
. was illegally opened - It was a fight between the tenderers involving
H
. 974
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 975
CORPORATION LTD v. MIS AMAR INFRASTRUCTURE LTD.
no· element of public interest - Respondent was trying for re- A
tendering to cater its business interest by seeking disqualification
ofL-2 to whom the contract had not been given - The Court has to
be loath in such matter to make intetference. ·
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4248
of 2017. B
From the Judgment and Order dated 14.02.2017 of the High Court
ofChhattisgarh atBilaspur in W. P. (C) No. 1053 of2016
WITH
C. A. No. 4251 of2017. c
Mukul Rohatagi, AG, Apoorv Kurup, A. C. Boxipatro, Ashish
Kumar Sinha, Ratan K. Singh, S. Abhishek, Aishwary Tiwary, Nishank
Tyagi, Rameshwar Prasad Goyal, Advs. for the Appellants.
Garvesh Kabra, A. H. Lohiya, S. 0. Tapidya, Amit Singh,
Ms. Pooja Kabra, Advs. for the Respondents. D
The following Order of the Court was delivered:
ORDER
1. Leave granted.
2. The appeals have been preferred by Chhattisgarh State E
Industrial Development Corporation Ltd. (in short, 'the CSIDC') and
Mis. Raipur Construction Pvt. Ltd. being aggrieved by the judgment and
order dated 14.02.2007 passed by the High Court of Chhattisgarh in
Writ Petition (C) No. I 053 of2016 thereby allowing the same and quashing
the contract given to Mis. Raipur Construction Pvt. Ltd. by the CSIDC F
with respect to the work of "upgradation of i,nfrastructure i.e. roads,
drainage system and water supply in Sirgitti under Modified Industrial
Infrastructure Up-gradation Scheme (MIIUS) at Sirgitti, Bililspur."
3. Tender was floated by the CSIDC on 3.11.2015 forthe aforesaid
work within the stipulated time period of 18 months and tenders were . G
invited online, to be submitted by 12.01.2016.
4. A writ petition bearing WP(C) No.227 of 2016, was filed
challenging the notice inviting tenders issued by the CSIDC and the
same was dismissed vide order dated 2.2.2016 by the High Court of
H
976 SUPREME COURT REPORTS [2017] 6 S.C.R.
A Chhattisgarh, Bilaspur. The online bids were submitted. The CSIDC
opened the tenders for determining whether the bidders satisfied the
pre-qualification criteria. Based upon the information supplied by the
bidders, the CSIDC prepared charts of technical evaluation documents
in the form of Annexures 'A' 'B' 'C' and 'D' which were signed by the
Chief Executive Engineer and placed before the Tender Evaluation
B
Committee in its meeting held on 03.03.2016. The CSIDC filed a
Technical Evaluation Sheet asAnnexures R-4/3 and 5/3 which was placed
before the Technical Evaluation Committee whereas the petitioner in
the High Court i.e. Mis. Amar Infrastructure Ltd. filed the document
"Annexure P-4" as technical evaluation document.
c 5. It is pertinent to mention here that the documents of technical
evaluation filed by CSIDC were signed by the Executive Engineer and
the document filed by Mis. Amar Infrastructure Pvt. Ltd. as Annexure ·
P-4 does not bear signatures of any official.
6. On 3.3.2016, Tender Evaluation Committee considered the
D matter and had drawn the minutes which is signed by Mr. S. Rajgire,
Executive Engineer Division-IV, Mr. G.V.S.P. Rao, Deputy Manager
(Accounts) and Mr. Abdul Shakil, Chief Engineer. Two bidders namely;
Mis. Arcons Infrastructure Pvt. Ltd., Chhindwara and M/s. Raipur
Construction Pvt. Ltd. were found qualified. It has been opined by .the
E Evaluation Committee that they fulfill all the requisite qualifications.
Hence, it was resolved unanimously to open the financial bids of the
· aforesaid two bidders. The financial bids were ultimately opened on
5.3.2016. The bid submitted by Mis. Raipur Construction Pvt. Ltd.was
ranked as L-1 as compared to that of Mis. Arcons Infrastructure Pvt.
Ltd. Chhindwara whose bid was ranked as L-2. Ultimately the bid L-1
F of Mis. Raipur Construction Pvt. Ltd. had been accepted on 8.7.2016
and work order had been issued by the CSIDC to Mis. Raipur Construction
Pvt. Ltd.
7. The petitioner/respondent herein, namely, Mis. Amar
Infrastructure Ltd. was disqualified on the ground that its construction
G experience was not found as per the requisite criteria indicated in
experience certificate, quantity ofDLC (M-10) i.e. 3194 cum submitted
under the key activities of construction experience of requisite quantity
of work done was not in accordance with the nomenclature of PWD
SOR. In the nomenclature ofDLC in SOR there was no M-20 type of
H
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 977
CORPORATION LTD v. MIS AMAR INFRASTRUCTURE LTD.
concrete, as such the amount ofDLC as presented in the certificate had A
been rejected.
8. It is pertinent to mention that Writ Petition No.664of2016 was
filed before the High Court of Chhatisgarh at Bilaspur by Mis. B.B.
Verma, who was also one of the unsuccessful bidders, against the CSIDC
and others. In the said writ petition, the CSIDC had filed its reply dated B
14.3.2016 and had submitted the document dated 3.3.2016 i.e. the chart
containing technical evaluation in which the aforesaid facts were
mentioned. The writ petition preferred by Mis. B.B. Verma was ultimately
dismissed by the High Court ofChhatisgarh vide order dated 15.03.2016.
9. However, Mis. Amar Infrastructure Ltd. filed a representation c
on 1.4.2016 not against the successful bidder but against Mis. Arcons
Construction Pvt. Ltd. to the effect that it had been found eligible for
opening financial bid despite not having a Hot Mix -Plant. After the
writ petition in question was filed on 8.4.2016 in the High Court, reply
was filed by the CSIDC on 7.7.2016.
D
10. The High Court, considering the discrepancy in the document
of technical evaluation which was filed by the Mis. Amar Infrastructure
Limited and the one filed by the CSIDC, had vide order dated 28.07.2016
directed the Superintendent of Police, Raipur to depute an independent
and competent officer from the Cyber Crime Cell of the State Police to
inspect, examine and analyse the data available on the computer of the E
CSIDC and to determine the following points:
"I. What was the initial bid document e-filed by Respondent No.6.
2. Whether in the tender document submitted by respondent no.6,
the list of plant and machinery contained hot mix plant or not?
F
Whether said list was certified by the authorised signatory or not?
3. The concerned Officer will after examining the documents also
determine whether the documentAnnexure-Pl4 has been prepared
on the computer of the CSIDC or not?
4. The officer shall also intimate the date of preparation of the G
documentAnnexure R4,513 filed by the CSIDC and clearly intimate
when the document was initially prepared and if any changes
were made to this document then on what date. Report be
submitted to this Court within a period of 6 weeks from today."
H
978 SUPREME COURT REPORTS (2017) 6 S.C.R.
A 11. Pursuant to the order, the report was filed in the High Court
on 9.11.2016. The report submitted by the Cyber Crime Cell is extracted ·
hereunder:
"In the compliance of above command, three hard disks were
confiscated and tested from the computers ofCSIDC by the Cyber
B Specialist Police headquarters, Raipur and a document was
received by the help of chips. After testing following results were
obtained:
I. Information related to point no.0 I is attached in page 115.
2. Information related to point no.02 is attached on 115 page and
c on page no. 57 a list of all documents in e-tender created through
respondent no.6 are present which does not contain any mentioning
of hot mix plant and in this list a seal of company and signature is
used in the place of authorised signatory.
3. According to the compliance of information on point no.3 and
D no.4 a hard disk was confiscated from computer no.3 which has
a description as foflows: .
(A) of Hitachi Company SIR no. 0138264JPT3MAOCOA, 30
G.B.
. .
(B) of HC Company S/R No. OA33535BS I 9570C7A, I 64G.B.
E
(C) ofWestem Digital Company S/R No.WCAYUA915673, 164
G.B.
Confiscated Hard disk was tested by Cyber Crime Expert.
The information of point no. 03 and 04 of the Test report is as
F follows:
Point No. (3)-DocumentAnnexure P/4 is created on the computer
ofCSIDC,which is located in the Computers' Hitachi Company
hard· disk who's SIR No. is OA 39264JPT3MAOCOA, 320 G.B.
in the file named Annexure -Bb, Last modified Date -06~03.2016.
G Time :-4.46 P.M, the found file is of 80 K.B. which contain 08
pages. The information related to annexure: P/4 was.found in the
pagenos.6,7,8.
The information related to point no. (4) is found in the file Annexure
-A Last modified Date: 14.01.2016 Time 12.33 P.M. which was
H
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 979
CORPORATION LTD v. M/S AMAR INFRASTRUCTURE LTD.
located in the CSIDC hard disk of Hitachi Compay who's serial A
no. is OA39264JPT3MAOCOA, 320 G.B. According to which
documentAnnexure R-4, 5/3 is presented in respected court which
is a "Techical Evaluation" chart and in the column of tender form
price in the column no.2 of the tender form, the D.D. number
deposited by the companies taking place in tender is clearly
B
mentioned as well the name of the banks are clearly mentioned.
But the file obtained from the hard disk "technical evaluation"
chart who is named as Annexure R-4, 5/3 contains only the D.D.
No and does not contain any bank name, in this way, both files
have differences in them.
The information related to "Technical Evaluation" Chart C
Annexure "B" is located in the file .named Annexure -B, Last
modified Date: 04-07-2016 time-02.08 P.M. which is situated in
the Hitachi Company Hard disk who's S/R No. is
OA39264JPT3MAOCOA, 320 G.B. the sixe of the file is 24 K.B.
and contains 02k pages. The attachment for Supreme Court and D
file found in Hard disk have no differences.
The information related to "Technical Evaluation" Chart
· Annexure "C" is located in the· file named Anne~ure -C, Last
modified Date: 04.07.2016 time- 02.09 P.M. which is situated in
the Hitachi Company Hard disk who's S/R no. is E
OA39264JPT3MAOCOA, 320 G.B. the size of the file is 29.7
K.B. andk contains 02 pages. The attachment for Supreme Court
and file found in Hard disk have no differences.
The perusal of Document Test reports (I/pages) and C.D.'s.
as well as chips concluded by the Cyber Celll Specialist is F
submitted.
Attachment : As per above points."
12. The report was filed on 11.11.2016 and the High Court has
found that the document which were placed on record; one filed by the
CSIDC and other filed by the appellant were substantially different with G
respect to the fact whether_ Hot Mix Plant was owned by Mis. Arcons
Infrastructure Pvt. Ltd. and also that modification had been made in the
document on 4. 7.2016. Thus, the High Court had opined that L-2 tenderer
basically was not qualified to participate and had been made to qualify
H
980 SUPREME COURT REPORTS [2017) 6 S.C.R.
A for opening of its financial bid in order to give the contract anyhow or
somehow to Mis. Raipur Construction Pvt. Ltd. It concluded that Mis.
Arcons Infrastructure Pvt. Ltd. was illegally included in the qualified list
of bidders by the Technical Evaluation Committee in its meeting dated
3.3.2016, and thus, the contract granted to Mis. Raipur Construction
Pvt. Ltd. has been quashed and at the same time further police
B
investigation has been ordered so as to fix the responsibility for the
manipulations made in the document filed by the CSIDC and/or by Mis.
Amar Infrastructure Ltd.
13. Aggrieved thereby the appeals have been preferred in this
Court.
c
14. Mr. Mukul Rohatagi, leamedAttorney General alongwith Mr.
Apoorv Kurup, Mr. A.C. Boxipatro and Mr. Ashish Kumar Sinha,
appearing on behalf of the appellants submitted that there is no
manipulation in the Technical Evaluation Bid Sheet and pre-qualification
criteria was fulfilled by both the tenderers whose financial bids were
D opened. Owning Hot Mix Plant was not a mandatory condition and thus
it could not be said that the technical evaluation was illegal in any manner
whatsoever. The financial bids of the qualified tenderers were required
to be opened and Hot Mix Plant was not in the list of plant and equipments
which were necessary to be possessed to qualify at the pre-qualification
E stage.
15. It was also submitted by the learned Attorney General that
the High Court has unnecessarily doubted the documents of Technical ·
Evaluation Sheet placed on record by the CSIDC. It had" been filed
within seven days of the finalisation of the financial bid in the High Court
F ofChhattisgarh at Bilaspur in the writ application which was preferred
by Mis. B.B. Verma which was dismissed on 15.3.2016 relying upon the
very same documents which have been filed by the CSIDC in the instant
writ application also. The document which has been filed by Mis. Amar
Infrastructure Pvt. Ltd. is not signed by anybody and even iftaken to be
an assessment made with respect to the entire tender documents by
G CSIDC, hot mix plant being not a pre-requisite and essential to be
possessed for opening of the financial bid, the reasoning employed by
the High Court that L-2 was got qualified only in order to ensure that
financial bid of L-1 could be opened so that it would not be left as the
only tenderer, whose financial bid then could not have been opened being
H
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 981
CORPORATION LTD v. M/S AMAR INFRASTRUCTURE LTD.
only bidder in the fray and re-tendering would have been necessitated, A
falls down.
16. Mr. Garvesh Kabra, learned counsel appearing on behalf of
the respondent ingeniously submitted that other tenderer had been
disqualified namely; Mis. Anil Buildcon (I) Pvt. Ltd. on the basis of not
possessing the requisite 'concrete paver' and it is apparent from the B
Technical Evaluation Sheet filed by the respondent as P-4 that the L-2
tenderer Mis. ArcQns Infrastruct\.\re PY1:. Ltd. did not possess Hot Mix
Plant at the time of submitting the tender which fact was noted in the
requisite column of the evaluation sheet (P4). He has also submitted
that it was necessary to submit all the documents alongwith the tender
forms including what were mentioned in Schedule D Section V. Thus, it C
was submitted by the learned counsel that there had been manipulation
made at the instance of the CSIDC as Technical Evaluation Sheet filed
by CSIDC does not tally with the technical evaluation document filed by
the petitioner before the High Court. It appears that manipulation had
been done in the document as observed by the. High Court on 41h July, D
2016. The High Court has rightly disqualified L-2, and thus it became
necessary to invite the fresh bids as per the prevailing norms.
Consequently, the order had been passed by the High Court, keeping in
view the report of the Cyber Crime Cell. Hence no case for interference
is made out in the appeals. The order passed by the High Court is on
proper consideration. E
17. In order to appreciate the rival submissions, it is necessary to
consider the tender document itself and the requirements for pre-
qualification. Whether having Hot Mix Plant was necessary qualification?
In the tender document, list is given, the same is extracted as under :
F
"(a) Only Schedule A and Section 1 of Schedule Dare to be filled
& signed by the tenderer
(b) All the certificates as per pre qualification criteria shall be
appended with relevant forms of schedule "D".
1. PART ONE (CSIDC F-I)-(Attached herewith, to be submit G
along the tender)
(a) Press notice & corrigendum
(b) Detailed NIT
H
982 SUPREME COURT REPORTS [2017] 6 S.C.R.
A Part (b)
(a) Schedule A
(i) Cost Abstract
(ii) Bill of Quantities
B
(b) Schedule B- NIL
(c) Schedule C-NIL
(d) Schedule D
c Section I ....Technical tender forms
(i) Letter of Technical Tender
(ii) Tenderer's Information Sheet
D (iii) Annual Turnover
(iv) Specific Construction Experiences
(v) Declaration
(vi) Check list for Technical tender evaluation
E
Section II. Scope of work
Section Ill. Technical specifications of work
Section IV. Special conditions of contract
F Section V. List ofapproved makes."
(emphasis added by us)
18. The tender inviting notice requires certain documents to be
mandatorily submitted online. The list of the documents as contained in
G para I of the tender notice is extracted hereinbelow:
"It is mandatory to submit the following online:
(A) Details of Earnest money in FD (in favour ofM.D.C.S.l.D.C.
Raipur) from any nationalised bank.
H
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 983
CORPORATION LTD v. MIS AMAR INFRASTRUCTURE LTD.
(B) Valid registration of CTI VAT and VAT clearance certificate/ A
it return acknowledgment.
(C ) Letter of technical tender.
(d) Tender's information sheet.
(E) Specific Construction Experience. B
(F) Construction Experience in key activities,
(G) List ofkeyplants & equipment certificate, available with the .
bidder/lease or rented. (List enclosed).
c
(H) Declaration check list for technical tender evaluation.
(I) All desired document should be attested by Notary.
(J) All desired document scan copy submitted to Online should
· also to be submitted physically by post in separate envelope. Any D
additional documents which are not submitted online but submitted
physically will not be accepted.
(K) PAN No. details.
(L) Copy of valid registration in CGPWD/Central/State/Semi Govt.
Of India or PSU of appropriate clause. E
(M) Tenderer has to submit audited balance sheets of their financial
tum over/accounts along with profit & Loss account for the any
three (3) year out of last five (5) years.
(N) The contractor shall submit list-0fworks which are in hand. F
(0) Affidavit in Original should be in prescribed format regarding
that given all the informations are true must be attached on Rs. I00/-
Nonjudicial stamp paper."
(emphasis added by us) G
19. It is apparent that list of plant and machinery as "available"
with the bidder, on lease or rented, was to be enclosed. It is apparent
that L-2 did not mention that Hot Mix Plant was available with it. It has
H
984 SUPREME COURT REPORTS [2017] 6 S.C.R.
A to be considered whether Hot Mix Plant was necessary for opening of
the financial bid.
20. The detailed notice inviting tenders required a tender to be
submitted in three envelopes in the following manner:
B
"SUBMISSION OF 1. Tender documents to be submitted in three
TENDER envelopes marked A,B & C on line as per
DOCUM&NTS mentioned key dates on portal of
https://csidc.cgeprocurenment.gov.in
Envelope A will contain earnest money
c
Envelope B technical qualification/details
required for qualification as per NIT and other
. details
Envelope C shall have financial offer.
D 2. For technical qualification, eligibility criteria
an earnest money the document submitted on
line shall only be treated as final submission
of document. Any physical submission of
extra paper/document shall not be taken
for consideration for Technical
E qualification/eligibility criteria.
PLACE AND DATE The tenders shall be opened at the office of
OF OPENING OF Managing Director, CSIDC, First Floor,
F TENDER Udyog Bhawan, Ring Road no. 1, Telibandha,
Raipur 9C.G) as mentioned in key dates.
After that Envelop (C) of only eligible
applicants will be opened on the same day or
any suitable date of the qualified tenderers
only.
G
21. In tabular form the originally scheduled dates were given for
opening the envelopes which is extracted herein below :
H
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 985
CORPORATION LTD v. MIS AMAR INFRASTRUCTURE LTD.
A
Seq, CSIDC Stage Supplier Start Date & Expiry Date Envelops
No. Stage Time &Time
7. Open 01/01/2016 02/01/2016 Technical
Envelope -A from 10.00 from 17.00 Envelope
(PQ Technical A.M. P.M.
& Commercial B
Detail)
8. Evaluation 01/01/2016 02/01/2016 Technical
and from 10.00 from 17.00 Envelope
Shortlisting of A.M. P.M.
Envelope-A
9. Open 04/01/2016 04/01/2016 Price Bid c
Envelope-C from 10.00 from 17.00 Envelope
(Price Bid) A.M. P.M.
10. Fill 04/01/2016 04/01/2016 Priee Bid
Negotiated from 17.01 from 17.02 Envelope
Rates A.M. P.M. D
11. Evaluation 04/01/2016 08/01/2016 . Price Bid
and from 17.03 from 17.04 Envelope
Shortlisting of A.M. P.M.
Envelope-C
12. Tender Award 08/01/2016 12/01/2016 Technical
from 17.05 from 17.06 Envelope E
A.M. P.M Price Bid
Envelope
22. Tender was to be submitted in three envelopes 'A', 'B' & 'C'.
Envelope' A' to contain earnest money. Envelope 'B' to contain technical
qualifications/ details required for qualification as per NIT and other F
details. Envelope 'C' to contain financial offer.
23. Pre-qualification criteria has been dealt with in Clause 2 of
the detailed NIT. The same is extracted as below:
"2. Pre-Qualification criteria: To be eligible under the contract,
G
the intending tenderer should meet the following mandatory criteria:
2.1 Financial Criteria
Average Annual Turnover: As per C.G. Govt. PWD Circular No.
F21-7/T/2017 dated 02/03/2015 achieved in "any one financial
H
986 SUPREME COURT REPORTS [2017] 6 S.C.R.
A year" a financial turnover in mentioned clauses of civil engineering
construction works) of construction work of at least 60%(Sixty
percent)of the probable amount of contract for which bid has
been invited i.e. INR 26.64 Crores(Audited balance sheet duly
signed by CA should be enclosed).
B (b) satisfactory completed at least one similar work equal in value
of 50% (Fifty per cent)of the portable amount i.e. INR 22.20
Crores of contract as one date of submission of financial offer
(Audited balance sheet duly signed by CA should be enclosed).
2.2 Technical Criteria
c
A Intending tenderer shall be registered contractor with any
Central/State/Semi Government of India or PSU in Class
A-Unlimited or registered contractor in single registration
system ofC.G.P.W.D. in appropriate class
D
AND
B Intending tenderer should have completed satisfactorily
following works during last five years i.e. after 06.10.2010
in any Government/Semi Government or public Sector
undertaking as below:
E (a) One similar work costing nor less than INR 35.52 Crore
each
OR
(b) two similar work costing not less than INR 22.20 Crore
each
F
c Construction ex12erience m Key activities (May be
complied by specialist Subcontractors Employer shall
require evidence of subcontracting agreement from the
Bidder. Specialist Sub contractor is a specialist enterprise
engaged for highly specialised processes which cannot be
G provided by the main contractor)
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CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 987
CORPORATION LTD v. M/S AMAR INFRASTRUCTURE LTD.
A
Requirement Submission
Requirements
For the above or other contracts In form, Schedule-
executed during the period stipulated D(v) Constrnction
in 2. l above a minimum constrnction Experience in key B
experience in the following key activities
activities
Earth work 33400 Cum
Granular Sub Base 20300 cum
Grading ·c
Dry Lean Cement 5100 cum
Concrete
Cement Concrete 10200 cum
Pavement (M-30 &
above grades)
D
Wet mix mecadam 2500 cum
Dense graded 3000 cum
bituminous
amacadam and by
Bituminous
concrete E
R.C.C. open drain 7500 RM
(M-20 grade)
DJ.pipeline 4265 RM
various dia of class
K-9 F
Octagonal pole 75 Nos.
with LED light
G
a. For the purpose value of executed works and financial turnover
shall be bought to current costing level by enhancing the actual
value of work at the rate of I 0% per annum (compounded
annually), calculated from the date of completion to last date of
receipt of applications for tenders. H
988 SUPREME COURT REPORTS [2017) 6 S.C.R.
A b. Ongoing project/part project experience shall not be considered
for evaluation.
c. For the benefit of the intending tenderers a check list is enclosed
at schedule D (Section I) for the documents to be submitted
alongwith tender.
B d. If tenderer qualifies on the basis of experience of one/more
components of scope of work, in such circumstance, a tenderer
shall have to employ sub vendor who has experience in execution
of that component, for which tenderer does not have experience.
That sub vendor should have successfully completed work in any
c central/State Govemment/PSU in respect of particular component
as below:
(i) One completed work of 80% of the value of that component;
OR
(ii) Two completed work of 50% of the value of that component
D in the central/State Government Department/ PSU Certificate.
(a) All tenderers should submit the valid registration certificate.
Comercial tax certificate, balance sheet with profit and loss
statement for at least three years.
(b) The tenderer shall also submit satisfactory completion
E
certificates in support of each quoted experience alongwith work
order. The satisfactory completion certificate should be signed by
an officer not below the rank of Executive Engineer concerned in
case of Government department or the rank of General Manager
in case of Public Sector as the case may be.
F
(c) all the documents to be submitted shall be duly notarized."
24. It is apparent from the pre-qualification criteria that for acquiring
eligibility the intended tenderer has to meet the financial criteria as
specified in Clause 2.1, technical criteria as per Clause 2.2(A) and the
construction experience in key activities as provided in Clause 2.2 of
G doing a contract of requisite nature. Clause 2.2(B) required similar
construction work should have been completed satisfactorily within five
years, costing not less than INR 32.52 crores or two similar works of
INR 22.20 crores each and Clause 2.2(C) provided with respect to the
construction experience in key activities requirement for the above or
H
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 989
CORPORATION LTD v. M/S AMAR INFRASTRUCTURE LTD.
other contracts executed during the period stipulated in clause 2.1 above, A
a minimum construction experience in the key activities as provided in
forni Schedule D Section I(v) relating to construction experience.
25.°Schedule D Section l(v) referred to in the pre-qualification
criteria is also extracted below:
"D(v): Construction Experience in key Activities. B.
Fill up one ( 1) form per contract.
Contract No ..... of.... Nameofwork .
AwardDate
Award Date
c
Completion date
Role in contract Contractor
'
ISub contractor I I
Total contract amount D
Employer's name
Address
Telephone/fax no.
E-mail
Description of the
E
work executed
Note: Attach copies of the work order and satisfied completion
certificates in support of each quoted experience. The completion
certificate should be signed by the officer not below the rank of F
concerned Executive Engineer in case of Government Department
or in the rank of General manager in case of Public Sector/private
sector as the cases may be.
· Signature of tenderer
G
Date- - - - - - -"
26. Check list was given in Schedule D Section l(v) for the
documents to be submitted along with tender. The same is extracted
hereunder:
H
990 SUPREME COURT REPORTS [2017] 6 S.C.R.
A Name of the Agency
s. Document Details Enclosed as annexure
No. page No.
from
B to
Bar cutting ·machine I No.
upto 40 MM dia
Cutting pumps 3 Nos.
Pan Mixer of not less 2Nos.
c than 0.5 cum
Plate vibrators of one 2Nos.
ton capacity
Minimum shuttering L =200 mt Ht
material to provided 0.30m
by tlie contractor L= 200mt Ht
D (good quality steel 1.00 m
plates inc steel
propose etc.)
Fixed from or slip I No.
from paver
Water Tankers (I 0- 1 No.
E 12KL)
Tipper/trucks 6Nos.
. Soil compactor 8-10 I No.
tones)
Concrete saw I No.
F Generator (250 KVA) I No.
Vibratory roller (8-10 I No
Tones)
Motor Grader I No
(C leari ng/S preadi ng/G
G
SB/100 Cum/ hour)
Mechanical paver for I No
CC Road fixed form
Mechanical paver for I No
BT Road
H
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 99 l
CORPORATION LTD v. M/S AMAR INFRASTRUCTURE LTD.
Note: the above check list only provides for those documents which A
are mandatory for the tender pre qualification criteria. Tenderers
are required to append, other documents also with the technical
tender as required in the detailed NIT or elsewhere in the Part
One (CSIDC F-1)"
(Emphasis supplied by us) B
27. It is pertinent to mention here that in said list of mandatory
plant etc. necessary for pre-qualification criteria, the Hot Mix Plant is
not mentioned. Thus, it was not a pre-requisite to qualify for opening
financial bid.
28. Apart from that, when we peruse the list ofrriinimum plant, c
equipments and shuttering provided in clause 51 of the contract document,
18 items have been mentioned in which again the Hot Mix Plant is not
mentioned in the list of"Minimum plant equipment and Shuttering". The
list contained in Clause 51 of tender documents is extracted hereunder:
D
"Sr. Particulars Quantity
No. (As required)
1. Computerised and Fully Automatic 1 No.
Concrete batching plant of minimum Minimum
30 Cum/ hr capacity. E
Cement Silos for 2 (two) days
capacity with direct feeding and
batching facilitv.
Hoopers for fine and course
a21rregate. F
Approved Plasticizer dozing facility.
.
Software programme compatible to
make corrections to batching/ mix
design.
Concrete Pump of required capacity. I No. G
Transit Mixer of 6 Cum capacity. 4Nos.
MS concrete Piping system for I Sets per Pump set
pumping
H
992 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 2. JCB 2Nos.
~
". Vibrators
a Electric with low noise 3 Nos.
B B Petrol (Stand by) 2 Nos.
c Needle Vibrator - 40 2Nos.
d Needle Vibrator- 65 2Nos.
c 4 Bar Bending Machine up to 40 mm dia. I No.
5 Bar cutting Machine up to 40 mm dia. I No.
6 Curing Pumps 3 Nos.
D 7 Pan mixer of not less than 0.5 Cum 2Nos.
8 Plane Vibrators of I ton capacity 2Nos.
9- Minimum shuttering material to be L=200 mtHt 0.30 m
provided by the contractor (Good quality
E steel plate's inc steel propos etc.) L=200 mtHt 1.00 m
10 Fixed from or slip from paver I No.
.
11 Water Tankers (I0-12 KL) I No.
12 Tipper/ Trucks 6Nos.
F
13 Soil Compactor (8-10 Tones) I No.
14 Concrete Saw I No.
15 Generator (250 KVA) I No.
G
16 Vibratory roller (8-IOTones) I No.
17 Motor Grader (Clearing/ Spreading/ I No.
GSB/ (100 Cum/hour)
18 Mechanical paver for concrete road & I No.
H Mechanical paver for B.T. road
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 993
CORPORATION LTD v. M/S AMAR INFRASTRUCTURE LTD.
3m 3l'"~R!la ~ 'lis ~ m il>" fa1fllr<1 q;r ~ I ~ ~ 1R A
~ ;;nm ~ '(1)- ~ i\'{ r<ll~ifi RJ1'tl" ~ ti'{ ~ ~ ~
Pfi'll<ltriilll . . q;r ;;ft- ~
~ ;l;- ft:rv ~ fit;m- 71'<11" 8'".
~ 3m mftri't 'ifiT ~ ~ ~ ~ 8'" vcf ~ fc\>{l<llrillll
~ f.l"'l1faa flt;m- 71'<11" 8'" ~ ~ 'ifiT ~ 'lis ~ 'ifiT 8
f<llfll.-q 'ifiT 'tlC"<INri Cfil~ql(ijij ~ ~ ~ fit;m- 71'<11" 8'" I
~ q;r il>" 3IJITQ * ~ lfll" ~ m.ra ~ ~ ~ ~
;;mMI" I
Note: The details referred to herein above are only for the purpose of C
quantitive assessment. The specification & qualitative aspect of the
shuttering material shall be in accordance with the BOQ & Technical
specification. The details are to be provided within 30 days after award
of contract."
29. In case, any of the aforesaid minimum equipment is not available D
and certificate is not appended to the bid, the financial bid was not to be
opened. ·
30. The Hot Mix Plant finds place in different Section V of
Schedule D. A bare reading of Schedule D Section V makes it clear
that though it was part of tender form and was in the Iist of approved •E
tools and machinery to be used for road work, it was not necessary for
the purpose of technical evaluation at the stage of pre-qualification for
opening of financial bid.
31. Considering the aforesaid various clauses, we are of the
considered opinion that both the bidders L-1 and L-2 i.e. Mis. Raipur
Construction Pvt. Ltd. and M/s. Arcons Infrastructure Pvt. Ltd. were F
technically qualified for opening of their financial bids. The opinion
expressed by the High Court that L-2 was made to be qualified in spite
of the fact that it was not having Hot Mix Plant, thus, cannot be accepted
as available ground to disqualify L-2 tenderer. The relevant clauses of
the tender document were not placed for consideration before the High G
Court as mentioned by the High Court and at last moment the Hot Mix
Plant inclusion in, Schedule D Section V was indicated to it by the
disqualified contractor. In our opinion, Hot Mix Plant was not a mandatory
requirement so as to open the financial bid. Thus, the financial bids of
the two tenderers who succeeded at the pre-qualification stage had been
H
994 SUPREME COURT REPORTS [2017] 6 S.C.R.
A rightly opened and considered. In our opinion, Mis. Raipur Construction
was not favoured by qualifying the disqualified tenderer - Mis. Arcons
Infrastructure Pvt Ltd to give the contract to it in surreptitious method
and manner as observed by the High Court. Mis. Arcons Infrastructure
was, in fact, rightly qualified.
B 32. This Court in Tejas Constructions and Infrastructure Pvt.
Ltd. vs. Municipal Council, Sendhwa and Anr. (2012) 6 SCC 464 has
laid down that when the work is 60 per cent complete, Court should be
slow to interfere as retendering would delay the project. In the absence
ofmalafide or arbitrariness which is not made out in the instant case as
50 per cent of the work had been completed when the order was passed
c by the High Court, hence, no interference was warranted in the present
case.
33. Now, we advert to the question of manipulation in the technical
evaluation sheet which has been placed on record by the CSIDC in the
form of document R-413 and 513 and by Mis. Amar Infrastructure Ltd.
D as Annexure P-4 in the High Court.
34. The Cyber Crime Cell has observed that some modification
was made on 4'h July, 2016, in the technical evaluation bid document P-
. 4, a copy of which was filed by the respondent i.e. Mis. Amar
Infrastructure Limited in the month of April. It was also not reported
E what change was made in P-4. There was no such manipulation reported
in the document of technical evaluation filed by the CSIDC in the High
Court. We have seen the stand of CSIDC in its reply to the Writ
Application preferred by Mis B.B. Verma which was dismissed by the
High Court after looking into same technical evaluation report. The
F similar stand had been taken by the CSIDC and the very same document
of technical evaluation had been placed on record in the aforesaid case
as is apparent from the pleadings to which our attention has been drawn
by the learned Attorney General. The document relied upon by the
CSIDC had been placed on record of said case within a week of
finalisation of the financial bid. Immediate filing of the same and taking
G the stand to the similar effect as has been taken in this matter also vouch
for the correctness of document which has been filed by the CSIDC
and there is no manipulation in it. As per report of the cyber crime cell
also there is no manipulation in the document which has been relied
upon by the CSIDC. The question of manipulation as to Hot Mix Plant is
H
CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 995
CORPORATION LTD v. M/S AMAR INFRASTRUCTURE LTD.
of no. consequence as it was not a mandatory criteria for opening of A
financial bid. The ownership or otherwise of the hot mix plant was not at
all necessary and the plant was not required as mandatory one for the
purpose of pre-qualification stage for opening of financial bid. It was
only in the list of approved plant and equipments to be used under the
certification of the Engineer-in-charge. It appears that the document P-
B
4 which had been filed by M/s. Amar Infrastructure Ltd. contained the
evaluation sheet but it was not as per requirement of aforesaid various
clauses necessary for pre-qualification stage and non-submission of the
information as contended by M/s. Amar Infrastructure Ltd. could not
have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd.
Thus, what was the necessary requirement as per criteria for opening of C
the financial evaluation had been rightly placed before the Technical
Evaluation Committee on 3.3.2016. We have perused the original Minutes
and the technical evaluation document filed by CSIDC which were placed
before Technical Evaluation Committee, and was signed by the Executive
Engineer and had been considered by the Technical Evaluation
Committee. The minutes of the Technical Evaluation Committee had D
also been signed by the aforesaid three officers. Apart from that in the
minutes of Technical Evaluation Committee meeting dated 3 .3.2016,
details of qualifications have been mentioned and that accords with the
document of evaluation sheet which has been relied upon by the CSIDC.
35. In our opinion, as the hot mix plant was not a mandatory E
requirement so as to open the financial bid, we decline to go into the
submission raised on behalf of the appellants that M/s. Amar
Infrastructure Limited has not disclosed how and when and from whom
and by which process it obtained the document P-4 which is not signed
by anybody as the fact remains that the document which is filed by the F
respondent also existed in the computer of the CSIDC. However, it
looms in insignificance owing to the conclusions to which we have reached
with respect to the Hot Mix Plant. May be that this document P-4 was
also prepared by somebody in the CSIDC but it was not initialed or
signed by anybody. It depicted the position of entire tender of L-2 but
what was mandatory requirement for pre-qualification stage and technical G
evaluation was correctly placed before the Technical Evaluation
Committee in the form of document R-4/3 and R-5/3. In view of the
aforesaid, we are of the opinion that the report of the Cyb1~r Crime Cell
is of no consequence with respect to pre-qualification criteria and opening
H
996 SUPREME COURT REPORTS [2017] 6 S.C.R.
A of financial bids, since it is not disputed that successful tenderer L-1
fulfilled all conditions and had Hot Mix Plant also.
36. There was no manipulation in the mandatory requirements
and may be that P-4 was prepared but that was of no consequence as
deficiency of Hot Mix Plant, even if placed before Committee, would
B not have tilted the balance in favour of the respondent Mis. Amar
Infrastructure Limited. The Committee on that basis could not have
disqualified the L-2 tenderer.
37. Coming to the submission raised by the learned counsel for
the respondent that Mis. Anil Buildcon (I) Pvt. Ltd. was disqualified for
c not possessing concrete paver as such L-2 tenderer Mis. Arcons
Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency
of Hot Mix Plant, we are unable to accept the submission as concrete
paver was mentioned in the list of mandatory plant and equipment for
pre-qualification stage so as to open financial bid. Thus, this submission
is found to be baseless. Mis Anil Buildcon (I) Pvt. Ltd. was rightly
D disqualified.
38. We also find that Mis. Amar Infrastructure Ltd. itself was
disqualified and it had not questioned the qualification of the successful
bidder but that of L-2 bidder - Mis. Arcons Infrastructure Pvt. Ltd. on
ground that it was not qualified and its financial bid had been illegally
E opened. It was purely a fight between the rival tenderers involving no
element of public interest. It was the respondent who was trying to
cater to its business interest to ensure retendering by seeking
disqualification of L-2 tenderer Mis. Arcons Infrastructure Pvt. Ltd. to
whom contract had not been given. The Court has to be loath in such
F matter to make interference.
39. Resultantly, we find that there was no merit in the writ petition
filed by the respondent in the High Court. Thus, we have no hesitation
in setting aside the impugned judgment, order and directions passed by
.the High Court. The appeals are allowed. Parties to bear their own
G costs as incurred.
Ankit Gyan Appeals allowed.
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