WP(C)/460/2014 of NABAM SERA Vs THE STATE OF A.P. on 22 December 2014

WP(C) 460/2014BEFORETHE HON' BLE MR. JUSTICE M.R. PATHA

Heard Mr. T.Gyaqdi, learned counsel for the petitioner. Atso neard Ms. Geeta Dek, tearned Addl. Senior Government Advocate, for State Respondents No. 1 to 5.

Tne Respondent No. 4 viz. Executive Engineer, Dumporijo PDW Division, Dumporijo, vide Notice Inviting Tenager(NIT, for short) dated 26.01.2014, invited enders for 6 packages for development of infrastructures and constructions of ofTice buildings witnin the Dumporijo PWD division of Upper Subansiri District. Tne sald NIT was publisned in the local English Daily “Arunacnat Front’ and the vaLue of tne contract was Rs. 5,/5,97,419. As per the said NIT, the last date of submission of bids was 12.00 noon of 03.12.2014 and the date of opening of the tenagers was Tixed on 03.12.2014, itself, at 3.00 pm by the Executive Engineer or 1s authorized representative in presence of the intending tenderers. The petitioner, namely, M/s Nabam Sera participated in the tender processes of 5 packages ofT tne said NIT dated 26.11.2014 amounting to Rs. 4,16,85,994/-. The saidq tendeprocess contained 2 bids system that includes pothn tecnnical and financial bidsand the petitioner participated in both systems of bids for 5 packages. As 03.12.2014 was declared a noliday by the State government, tne tender could not be opened on the said date and it was opened on 04.12.2014, around 6.30 pm and the petitioner authorized one Snri Siktum Yudik of Dumporijo to represent/witness/attena the bidding process on behalf of the petitioner. However, tne Respondent No.4 viz. Executive Engineer, Dumporijyo PWD Division, Dumporijo, rejyected/denied e sald Snri Siktum Yuqdik for representing on behalf of the petitioner during thtender opening process as said Shri Siktum Yudik 1S as a government employee anaq serving as an Administrative Assistant 1n MGNREGA

The petitioner stated that he, on 05.12.2014, authorized one Shri TakarYudik in place of Snri Siktum Yudik to represent him as witness but the above noted Respondent No. 4 did not allow and accept the same and further did not allowtne said Takar Yudik representing the petitioner, to produce the original documents as asked Tor in the Instruction to Bidders in tne NIT dated 26.11.7014.Tne grievance of tne petitioner is tnat the said Respondent No. 4 did not allowtne representative of the petitioner to attend the tender opening process on 04.12.2014 witnout any reasons and his bids were not opened and accepted in presence of nis representatives, nence, he nas Tiled the present writ petition.

The State respondents have filed tneir affidavit in this matter and stated tnat a 6-member Board was constituted for opening of tne tender as issued on26.01.2014 that incluges Executive Engineer, PWD, as cnairman; Assistant Executlve Baririjo; Assistant Engineer, SD-I; Circle Officer, Maro; Assistant Engineer,Power, Dumporijyo; and the Divisional Accountant of the said Division.

The State Respondents further stated that on 04.12.2014, at the appointeaq time, 1.e. 3.00pm in the afternoon, tenders were opened for each of the packaes from package No. 1 anda all the tender bidders/representatives were asked to e seated in the office cnamber of the Respondent No. 4. When the earnest money deposited for the lst package was just opened and recorded, one participant of the tender, objected the participation of Shri Siktum Yudik participating on benalT of the petitioner's enterprise as ne 1S a government employee and serving as an Administrative Assistant under MGNREA of CD Block Dumporijo, and further, a document to that extent was placed before tne Board and alt the participants objectea the participation of Shri Siktum Yudik as authorized person on behalf of thepetitioner, ne, being a government employee, and who 1S, as sucn, not eligibleTor participation. As the situation was sligntly going out of control, police waSs called on to bring the situation under control and the Board decided to bar te petitioner from tne tender opening process and the said person was asked to leave the room. When the process of opening of tender was re-started, the said person coming from backside, in a suqden move, snatched away tne tender packets and the tender papers and run away. Police tried its best to stop him and retrieve|tne tender packets and a First Information Report(FIR) was also lodged witn theDumporijo police station and a copy of the said FIR was handed over to the Officer-in-Chnarge of the Dumporijo police station who was present in the office chamer of tne Respondent No. 4 viz. Executive Engineer, Dumporijo PWD Division, Dumporijo. However, on the request of some of the senior persons, the said FIR was witndrawn and as assured by the senior persons, the tender packets alongwitn thetender papers in complete snape were brougnt back from the said Siktum Yudik. Thereafter, the tender opening process went on smoothly and was completed at 12.30am of 05.12.2014.

As per the tender papers and in terms of the NIT dated 26.11.2014, cond1tions were incorporated that the original documents should be furnished by the b1daders/representatives at tne time of opening of the tenagers. As some of Tirmsno participated in the said tender process, failed to produce the requisite documents in original, their financial bids were not opened and only their names were recorded. Tne firms which failed to furnish the original documents in terms oftne NIT dated 26.11.2014 are:- (1) present petitioner (11) one M/s Kenge Enterprise Itanagar; and (111) M/s Ranjan Bora Enterprise, Karbi Anglong, Assam.

The State Respondents further contended tnat on 06.12.2014, one Snri Takar Yudik came to the office of the said Respondent No. 4 and produced a copy ofthe autnorization letter issued by the petitioner witn the endorsement of Executive Magistrate, Itanagar Capital Complex, Nahartlagun, to snow that the petitionr, on 05.12.2014, nas authorized him 1.e. Sri Takar Yudik to participate in theSalad tender opening process on behalf of the petitioner. However, on 06.12.2014the State Respondents, more particularly, Respondent No. 4 did not accept the said autnority letter whnicn was executed on behalf of said Sri Takar Yudik and dLy endorsed by tne Executive Magistrate as the said Takar Yudik produced the salqd documents only on 06.12.2014 as the State Respondents have already opened anaconsidered the tender papers, on 05.12.2014 at 12.30AM itself. It 1s to be notedthat the tender papers, in pursuant to the said NIT dated 26.11.2014, were openeq on 04.12.7014 at around 3.00PM and concluded at around 1272.30AM of 05.12.201

Tne petitioner, in nis reply, submitted that the original documents, innis Tavour, could not be placed at tne time of Opening the bids as the State Respondents did not allow nis autnorized representative viz. Sri Siktum Yudik to place tnose documents in his favour which the State respondents could have scrutin1zeqa the daocuments of the petitioner in absence of his witness also. Tne petitner atso stated tnat on 05.12.2014, Sri Takar Yudik was authorized by him in place of Sri Siktum Yudik to represent on his benalf as witness but the said Responagent No. 4 did not accept the same and the petitioner was not given any opportuity for producing tne original daocuments in terms of tne said NIT dated 26.11.214.

From the aforesaid facts, it 1S very clear that the petitioner was represented on the tender opening process on 04.12.2014 by Sri Siktum Yudik. It 1S not the case of the petitioner that Sri Siktum Yudik 1S not a government employee.Moreover, it 1S also not the case of the petitioner that a government employee|can participate in the tender process on behalf of an individual private contendeT

The State respondents contended that all the participants of the tenderprocess, in pursuant to NIT dated 26.11.2014, objected the participation of SriSiktum Yudik, a government employee. In participating on benaltf of the petitionr in the said tender process and because of Nis Own misconduct, as stated above,Sri Siktum Yudik had to Leave the office room of the Respondent No. 4, wherein.the tender documents were opened.

It 1S also seen that the petitioner, only on 05.12.2014, authorized one Sri Takar Yudik to represent him in the tender opening process and to produce the sald original documents before the said Respondent No. 4 on 06.12.2014 and bythat time, the tender process in terms of tne NIT dated 26.11.2014 was already consiaderegd Furtner, the petitioner's participation in the said tender process was rejected as he had failed to furnish the original documents in terms of the Instruction to Bitters(ITB) furnisned along with the tender documents in pursuant tothe NIT dated 26.11.7014.

From the aforesaid facts and circumstances of the case, tnis Court 1S ofthe considered view that the State Respondents No. 1 to 5 nave not committed any i1tlegality in not opening the financial bids of tne 5 packages in which the ptitioner participated in pursuant to the NIT dated 26.11.2014 as the tender papers of the said Notice Inviting Tender, contained specific conditions to the effect that original documents need to be furnisned by the bidders/ representativesat tne time of opening of the bidding documents.|As the petitioner failed to produce the original documents in terms of tne conditions as laid down in the NIT dated 26.11.2014, at the time of opening ofT tne bidding documents on 04.12.2014, action of the state respondents does notconfer any interference in its Jurisdiction.

In view of the above, tnis writ petition 1s hereby dismissed.

Interim order passed earlier on dated 10.12.2014 snatll automatically stna vacated.