CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD AND ANR. v. MIS AMAR INFRASTRUCTURE LTD. AND ORS.

The following Order of the Court was delivered: ORDER

1Copy pinpoint1. Leave granted.

2Copy pinpoint2. 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."

3Copy pinpoint3. 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.

4Copy pinpoint4. 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

p. 976 Copy page pinpoint

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.

6Copy pinpoint6. 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.

7Copy pinpoint7. 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.

8Copy pinpoint8. 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.

9Copy pinpoint9. 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

10Copy pinpoint10. 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."

p. 978 Copy page pinpoint

11Copy pinpoint11. 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.

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 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 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 submitted. Attachment : As per above points."

12Copy pinpoint12. 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 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

p. 980 Copy page pinpoint

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.

13Copy pinpoint13. Aggrieved thereby the appeals have been preferred in this Court. c

14Copy pinpoint14. 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 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 stage.

15Copy pinpoint15. 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.

16Copy pinpoint16. 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

17Copy pinpoint17. 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

p. 982 Copy page pinpoint

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)

18Copy pinpoint18. 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

19Copy pinpoint19. 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

p. 984 Copy page pinpoint

A to be considered whether Hot Mix Plant was necessary for opening of the financial bid.

20Copy pinpoint20. 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

21Copy pinpoint21. In tabular form the originally scheduled dates were given for opening the envelopes which is extracted herein below :

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

22Copy pinpoint22. 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 details. Envelope 'C' to contain financial offer.

23Copy pinpoint23. 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, 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

p. 986 Copy page pinpoint

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)

CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT 987 CORPORATION LTD v. M/S AMAR INFRASTRUCTURE LTD.

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

p. 988 Copy page pinpoint

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 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 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."

24Copy pinpoint24. 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 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 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- - - - - - -"

26Copy pinpoint26. 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

p. 990 Copy page pinpoint

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

27Copy pinpoint27. 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.

28Copy pinpoint28. 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)

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

p. 992 Copy page pinpoint

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.

14 Concrete Saw I No.

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 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."

29Copy pinpoint29. In case, any of the aforesaid minimum equipment is not available and certificate is not appended to the bid, the financial bid was not to be opened. ·

30Copy pinpoint30. 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.

31Copy pinpoint31. 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

p. 994 Copy page pinpoint

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.

32Copy pinpoint32. 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.

33Copy pinpoint33. 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.

34Copy pinpoint34. 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 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 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.

35Copy pinpoint35. In our opinion, as the hot mix plant was not a mandatory 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 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 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

p. 996 Copy page pinpoint

A of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.

36Copy pinpoint36. 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.

37Copy pinpoint37. 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 disqualified.

38Copy pinpoint38. 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 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 matter to make interference.

39Copy pinpoint39. 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 costs as incurred.

Ankit Gyan Appeals allowed.