Hon'ble Deepak Verma,J.
Heard Sri Anurag Khanna, learned Senior Counsel, assisted by Sri Raghav Dev Garg for the petitioner, learned Standing Counsel for respondent 1 and Sri Kaushalendra Nath Singh for respondents 2 and 4. With their consent, the writ petition is being disposed of finally, without inviting a formal counter affidavit.
The petitioner, an incorporated Company, has preferred the instant writ petition being aggrieved by a communication dated 23.6.2021, issued by the fourth respondent, informing the petitioner-Company that it stands disqualified and precluded from participating in the tender process in future also, as it had furnished wrong information relating to its previous experience. The petitioner has also prayed for a mandamus directing the second respondent to issue LOI, execute agreement and work orders in its favour, being the lowest bidder (L1).
The second respondent, i.e. New Okhla Industrial Development Authority (NOIDA), issued a notice on 24.3.2021, inviting tenders for providing and fixing smart water meters with set up of Advanced Metering Infrastructure (AMI) in pilot project area with 10 years O&M. The last date for submission of bids was 30.3.2021. The petitioner-Company had submitted its bid on 26.3.2021. The tender process comprised of two stages, i.e. technical round and financial round. One of the requirements for prequalification of tender was submission of proof of previous experience. Clause 10 which stipulates nature of proof to be submitted is as follows: -
"10. Proof of previous experience:
(1) Experience of having successfully completed works during the last 7 years ending last day of the month previous to the one in which applications are invited with Govt./Semi Govt./PSU only:
Or Three similar completed works costing not less than the amount equal to 60% of estimated cost put to tender Or One similar completed works of aggregate cost not less than the amount equal to 80% of estimated cost put to tender (2) Experience of having successfully completed works during the last 7 years ending last day of the month previous to the one in which applications are invited."
The petitioner-Company submitted Experience Certificate dated 5.2.2021, issued by Executive Engineer (Project) Water - I, Delhi Jal Board, Govt. of NTC of Delhi, certifying that it had satisfactorily completed the work of supply and installation of water meters described therein and completed maintenance of those meters for a period of approximately six years from its installation. The value of the work said to have been done was Rs. 67,14,09,841/-. The petitioner was declared to have qualified technical bid and was permitted to participate in the second stage, i.e. financial round. In all, there were three bidders, out of whom, the bid of the petitioner was the lowest. As per the tendering process, the solvency and experience certificate of the petitioner were sent for verification to the issuing authority. In response thereto, the Superintending Engineer (Project) W - II, Delhi Jal Board, vide e-mail dated 10.6.2021 informed the second respondent that the contract of the petitioner-Company for supply, installation and seven years maintenance of 15mm size AMR/Non AMR Water Meters, in respect of which, it had submitted Experience Certificate dated 5.2.2021, was terminated vide letter dated 28.11.2019 for poor performance. The petitioner-Company had obtained a stay order against the termination order from the court of District and Sessions Judge, South East Saket, New Delhi and the matter is sub judice. Consequently, the Experience Certificate issued by Executive Engineer (Project) dated 5.2.2021, stands withdrawn in respect of satisfactory performance of the work. The petitioner submitted representation dated 14.6.2021 against the communication (e-mail) of Delhi Jal Board dated 10.6.2021. The technical committee considered the representation of the petitioner, but decided to disqualify the petitioner. It was communicated to the petitioner by the order impugned.
By means of an amendment application, the petitioner has challenged the fresh e-tender notice issued on 13.9.2021, pertaining to the same work.
The amendment application is allowed, being consequential to the main relief sought in the writ petition.
Sri Anurag Khanna, learned counsel appearing on behalf of the petitioner, submitted that the impugned decision is illegal on two grounds. Firstly, that the order terminating the contract by Delhi Jal Board, is admittedly stayed by a court of competent jurisdiction and therefore any decision of Delhi Jal Board withdrawing the Experience Certificate, would itself be illegal. Second, it is submitted that it is not disputed even by Delhi Jal Board that the petitioner had completed work of value of Rs. 67,14,09,841/-, which was much more than 80% of the value of present tender. Consequently, the petitioner possesses requisite experience as per Clause 10.
Sri Kaushalendra Nath Singh, learned counsel for respondents 2 and 4, on instruction, submitted that according to Clause 10, "one similar completed work of aggregate cost not less than the amount equal to 80% of the estimated cost put to tender", would not mean that the work done should exceed 80% of the cost of work done, or the estimated cost of the work put to tender. It would mean that the experience should be in relation to a completed work, the aggregate value whereof should not be less than an amount equal to 80% of estimated cost of the present tender. He further submitted that the petitioner has been declared disqualified not only for the reason that he did not have previous experience in terms of Clause 10, but also for not disclosing correct facts and making attempt to mislead the Authority by procuring the Experience Certificate which is vague and did not reflect the fact that the contract with Delhi Jal Board was cancelled for unsatisfactory work and the petitioner had been working on basis of a stay order.
The facts which are not in dispute are that the petitioner had a contract in its favour from Delhi Jal Board and whereunder, it was required to perform a similar kind of work. It is also not in dispute that the petitioner had completed more than 80% of the total value of the contract awarded in its favour by Delhi Jal Board. Its value is also more than 80% of the estimated cost put to tender by the second respondent. The main question is whether on basis of the petitioner having completed more than 80% of the work awarded to it by Delhi Jal Board, it was qualified to participate in the tender process in question or not. The own case of the petitioner is that it would fall under a last portion of Clause 10 of the Tender Document, which envisages "One similar completed works of aggregate cost not less than the amount equal to 80% of estimated cost put to tender". The total value of the project as per Tender Document is Rs. 9,46,52,321.38. 80% of the said value is Rs. 7,57,21,900/-, in term of Clause 10 of the Tender Document. Concededly, the work done by the petitioner with Delhi Jal Board was of much more value than that was required. However, as per stipulation, the experience of work should be in relation to a completed work and not work which is yet to be completed. Clause 10 gives three different options to bidders in relation to nature of past experience. However, the common feature in all the three options is that the experience certificate should be in relation to a 'completed work'. Since it is not in dispute that the work of the petitioner with Delhi Jal Board is still not complete and therefore, the first part of the stipulation under Clause 10, is not met and thus the petitioner would not qualify in terms of work experience.
The impugned order has been passed primarily on the ground that the petitioner had concealed correct facts relating to its past experience as it was not disclosed that contract with Delhi Jal Board was terminated by it on account of poor performance. Albeit there is a stay order in favour of the petitioner against the order terminating the contract and in terms whereof, it may have been permitted to undertake the remaining work, but the fact remains that the earlier contract was terminated on ground of poor performance. The matter is still stated to be pending before the District and Sessions Judge, South East Saket, New Delhi and thus, it has yet to be decided as to whether work done under the contract was of poor quality or not. The requirement of furnishing proof of experience is to judge capability of the bidder on two aspects. Firstly, the purpose is to ascertain whether the bidder had the capability to successfully undertake and complete the work under the contract in terms of its quality. It is for the said reason that previous experience should be in relation to 'completed work'. Second aspect is to make qualitative assessment - whether the bidder had experience of undertaking work of such magnitude. That is why there is stipulation regarding the monetary value of previous work. The fact that the work in respect of which experience certificate was furnished was terminated for poor performance, was thus an important factor, while adjudging the capability from the qualitative point of view. The technical committee thus cannot be faulted for declaring the petitioner disqualified as soon as the fact relating to cancellation of previous contract came to its knowledge. At the same time, it cannot be said that the petitioner was guilty of furnishing any wrong information, as concededly the extent of work done with the Delhi Jal Board, is not in dispute. We thus do not find any illegality in the decision of the second and fourth respondents in declaring the petitioner as disqualified to participate in the tender process. The apprehension expressed by learned Senior Counsel appearing for the petitioner that stipulation in the impugned order that the petitioner will not be permitted to participate in future amounts to black listing the petitioner, is unfounded. Sri Kaushalendra Nath Singh, learned counsel for second respondent, on instructions, has clarified that the said stipulation would not preclude the petitioner from participating in other tenders that may be floated by the second respondent in future. However, in respect of present work, as held above, the petitioner did not possess requisite experience, therefore is not qualified to participate in the same. As the same qualification applies to fresh tender notice dated 13.9.2021, the challenge to it, also fails.
In the end, we would like to record the statement of Sri Kaushalendra Nath Singh, learned counsel appearing on behalf of the second and fourth respondents that the interpretation made by us above, will be uniformly applied to all the bidders and in case none qualifies as per the said interpretation, they will not proceed any further in pursuance of the fresh tender notice. However, as prayed by Sri Kaushalendra Nath Singh, liberty is reserved in favour of the second respondent to relax stipulation relating to previous work experience in future, if they still do not get a bidder who meets the above requirements. In such an event, the petitioner shall also be entitled to participate in the tender process and its bid will be evaluated as per new norms without being influenced by the impugned order, or any observation made in the instant order.
The writ petition stands disposed of accordingly.
(Deepak Verma, J.) (Manoj Kumar Gupta, J.) Order Date :- 20.9.2021 Jaideep/-