W.P.(C)/13969/2018 of REACH DREDGING LTD Vs UNION OF INDIA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 25[th] April, 2019.

+ W.P.(C) 13969/2018 & CM Appl. 54689/2018

REACH DREDGING LTD ..... Petitioner

Through: Mr. Rohit Dutta, Adv. versus versus

UNION OF INDIA & ORS. ..... Respondents

Through: Mr. Bhagvan Swarup Shukla, CGSC with Mr. Sarvan Kumar, Adv. for with Mr. Sarvan Kumar, Adv. for

UOI.

Mr. Kapil Gupta & Ms. Muskan Gupta, Advs. for R-2 & 3. Gupta, Advs. for R-2 & 3.

Mr. Yashraj Singh Deora, Ms.Sonal Mashankar & Mr. Neeraj Jain, Advs. for R-5 to 7. Mashankar & Mr. Neeraj Jain, Advs. for R-5 to 7.

CORAM:HON’BLE MR. JUSTICE S. RAVINDRA BHATHON’BLE MR. JUSTICE PRATEEK JALAN

S. RAVINDRA BHAT, J. (ORAL)

1.WAPCOS Limited [herein referred to as second respondent/ WAPCOS] issued Notice Inviting Tender on 10.11.2018, inviting applications from eligible entities to compete for the work of “Dredging and Reclamation” at Chilwa Taal, Gorkahpur, Uttar Pradesh. The petitioner, [a joint venture entity, constituted by an agreement dated 01.11.2018], furnished its bid. The petitioner was declared as eligible in the technical evaluation process on 30.11.2018. The bidding process entered the second stage when the financial bids were evaluated; the petitioner’s bid was ₹ 37,92,59,500; it was placed at L-2. The consortium comprising of

respondent nos. 5 to 7, were declared to be L-1 as their bid was lower than that of the petitioner. In these circumstances, the petitioner in the present proceedings under Article 226 of the Constitution, essentially complains that the L-1 tenderer was ineligible and should not have been permitted to participate in the tender process itself.

2.Since the question of eligibility is involved in this case, it would be relevant to set out the relevant eligibility condition in the NIT:-

3.The main complaint in these proceedings is that the L-1 tenderer does

not fulfill both the turnover and the technical eligibility criteria as it did not

perform similar works of the value called for in the process. WAPCOS, in reply to the petitioner’s contention, states inter alia as follows:-

“13. I further state that the last ground stated by the Petitioner is that the consortium of Respondent Nos. 5 to 7 does not have the requisite experience as detailed in NIT. In this regard it is submitted that they have the requisite experience, whereby they have submitted the certificates showing that they have worked at Soda Ash Plant for M/s Rohit Surfactants Private Limited (RSPL) and carried out Earthwork in Excavation & filling in embankment in reservoir, canal, disposal chamber using watering & mechanical consolidation among major earthwork & RCC work of intake pump house, disposal chamber, canal & foundation cum building work for sum of Rs.69.38 crores. They also have also carried out Construction of Ashe Dyke & Diversion of Nallah at Mega Power Plant for M/s Coastal Gujarat Power Limited for sum of Rs.31.50 crores (approx.). They have also carried out Dredging work for M/s Inland Waterways Authority of India on Alaknanda & Mahananda rivers for total contractual amount of Rs. 15.22 crores & on Tapi & Tizu rivers for total contractual amount Rs. 15.69 cores. This in turn shows that the consortium of Respondent Nos. 5 to 7 have requisite experience as was stipulated in NIT.”

4.This Court is of the opinion that the petitioner’s ground of challenge

cannot be accepted. The fact that the petitioner consortium was technically entitled to compete ipso facto did not confer upon it greater advantage than other competitors. The petitioner’s endeavor was to primarily state, that the experience revealed by the L-1 tenderer did not measure up to the tender specifications vis-a-vis the eligibility conditions. It is stated that the successful tenderer consortium did not have the requisite experience or expertise or infrastructure facilities in the ports, harbors, rivers or lakes.

5.In this regard, the Court is of the opinion that WAPCOS, as the primary agency, which evolved the tender criteria has the right and duty to interpret it having regard to its requirement. Given the limited nature of

enquiry that Courts are afforded under Article 226 of the Constitution, unless the primary interpretation adopted by the public agency is palpably unreasonable, or yields such results that no reasonable entity or instrumentality would have arrived at such an interpretation, given the same set of facts, the Court would rarely interfere. [See Michigan Rubber (India) Ltd. vs. State of Karnataka (2012) 8 SCC 216 and Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. (2016) 16 SCC 818]. Having regard to these considerations, the Court is of the opinion that the nature of experience revealed by the successful L-1 tenderer and the acceptance of the experience to declare the successful consortium as L-1 tenderer, is neither arbitrary nor unreasonable. As regards to the eligibility criteria with respect to the completion of similar works, it is undisputed that the value of the tendered work was ₹50 crores. Thus, the eligibility criteria could be fulfilled by three similar works of at least ₹20 crores each or two similar works of at least ₹30 crores each, or one similar work of at least ₹40 crores. The affidavit filed by WAPCOS shows that the successful bidder complied with both the second and third option. The acceptance of its bid by WAPCOS, in the opinion of the Court, is neither erroneous nor unreasonable.

6.In view of the foregoing decision, there is no merit in the writ petition. The same is hereby dismissed.

S. RAVINDRA BHAT,J.

APRIL 25, 2019 ‘hkaur/pv’

PRATEEK JALAN,J.