P. K. Jaiswal, J.Heard on the question of admission.

By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for the following reliefs :-

a) This Honble Court may kindly be pleased to call for entire record of tender process in question for authoritative adjudication of the matter.

b) This Honble Court may kindly be pleased to issue a writ in the nature of certiorari for quashing the impugned decision Tender No.4369 dated 22.03.2018 consequentially, this Honble Court may kindly be pleased to issue a writ in the nature of mandamus, directing the respondents to allow the petitioner in participation of Tender No.4369 dated 22.03.2018.

c) Respondent No.3 be held disqualified from tender and respondent No.3 may kindly be held not entitled for the work order.

d) This Honble Court may kindly be pleased to pass any other or further order(s) deemed fit and necessary in the facts and circumstances of the matter.

2. Facts of the case are the respondent No.1 Ujjain Municipal Corporation issued e-tender for various permanent development work at Kartik Mela in Zone No.10, Ujjain.

3. The tenders were invited from contractors registered in Class "C" in the office of the Chief Engineer, Public Works Department, M. P. Government and other departments of government.

4. Clause 9 of the tender deals with eligibility and qualification requirements. To be eligible, the petitioner shall provide satisfactory evidence to the department of their eligibility and their capability and adequacy of the resources to carry out the contract effectively.

5. Sub-Clause (ix) of Clause 9 reads as under :-

9. Eligibility and Qualification Requirements :

To be eligible, the applicant shall provide satisfactory evidence to the department of their eligibility and their capability and adequacy of the resources to carry out the contract effectively. To this end, all applicants submitted shall include the following information.

(ix) The minimum requirement of qualification shall be as under :

a) The applicant must be a well-established Superintending Engineering contractor having executed major roadwork, cement concrete road/runaway works, bridges and other high-rise structures.

* To qualify, the applicant must have achieved the minimum financial turnover of Rs.15.00 lacs in any one of the last three years.

* The turnover of the years prior to the last financial years shall be given additional weightage of 10% per year to bring them to price level of last financial year. The weightage shall be as under :

* First year of last five years

1.21

* Second year of last five years

1.10

* Third year of last five years

1.00

b) The technical committee would give marks for the various elements of the technical proposals. Tenderers whose technical proposals get scores less than 75% would not be eligible for consideration of their financial bids, which will be returned unopened.

* Even though the applicant satisfy the above, they are likely to be disqualified if they;

* Make untrue or false representation in the forms, statements and attachments finished in response to this clause and or having.

* Records of poor performance such abandoning of works, not property completing the contracts or financial failure etc.

6. Total five persons have submitted their tender. On 18.01.2018, a tabulation sheet was prepared by the Committee constituted by the Municipal Corporation. The details of the petitioners and other bidders are as under :-



No.

Name of Contractor

Tender Work (Samenature)

Turnover Last 5 Year

Bid Capacity = (1.60AXB)-C

Remark

20%/3

30%/2

50%/1

1

Amit Jindal

-

322.69 Lakh PWD Department

95.69= 5 19.13 Crore

(1.60x2130.22x 0.50)-88.02=1 616 .15 Lakh

OK

2

Vimal Chand Jain

-

2.54 Crore UMC

1863.23= 5 372.64 Lakh 12-13 to 16-17 (5 Year)

(1.60x1256.07x 0.50)-550= 454.85 Lakh

OK

3

Hari Construction

89.41 Lakh 13.11.13 UDA

1.10 Crore 03.08.13 UDA

-

Not considerable

-

Due to Time Limit Out then not OK

4

Nanhe Kha

-

1.20 Lakh 91.12 Lakh UMC

-

928.39= 5 185.68 Lakh 12-13 to 16-17 (5 Year)

(1.60x235.97x0 .50)-0= 188.77 Lakh

OK

5

Make Construction

64.43 Lakh 74.49 Lakh UDA

97.02 Lakh UMC

-

Not considerable 15-16 to 17-18 (3 Year)

-

Due to 5 year Turnover not OK

Report :

1) From A Column Samenature of work 4 Contractor passed to further "B" Part one Hari Construction not given proof of samenature work and out of time limit.

2) From B Column Turnover has given last 5 year only 3 Contractor they "Make Construction" not eligible to further "C" Part.

3) From "C" Part 50% more than Bid Capacity, all the Contractor passed for Financial Bid opening name are (A) Amit Jindal (B) Vimal Chand Jain (C) Nanhe Kha then presented for next order to Higher Authority.



7. On 24.04.2018, the respondent No.2 issued a letter to furnish Annual turnover for last five years of construction work certified by the Chartered Accountant, Audited Balance Sheet including Notes, Income and Expenditure statements (Profit & Loss statement) for last five years and for last five years Financial year payment received for contracts in progress or completed.

8. As per Annexure-P/3, the turn over of the petitioner during the five financial years are as under :-

Financial Year

Turnover (Rs.)

2016-17

1,56,48,455.00

2015-16

2,23,78,995.00

2014-15

1,86,01,996.00

2013-14

2,35,96,666.00

2012-13

1,26,13,159.00

9. The petitioner is barred from participating in the financial bid on the account of not having eligibility of "bid capacity". The bid capacity of the petitioner is as under :-

Bid Capacity = (1.6 AxB)-C

where

A= Maximum value of civil engineering works executed in any one year during the last five year (10% weightage per year shall be given to bring the value of work executed at present price level)

B= Proposed Contract period in year

C= Amount of work in hand at present

Bid Capacity = (1.6 AxB)-C

Bid Capacity = (1.6 x304.99x1)-69

Bid Capacity = 419.98 lacs

Note : Maximum value of during the last five year = 235.97 lacs.

10% weightage per year (four year) = 69.02 lacs

235.97+69.02=304.99 lacs

10. As per terms of the NIT, tenderer shall submit the tender in the following two separate envelops online:-

Envelope A is in respect of price bid and Envelop C is in respect to start envelop online. The tender documents will be opened at Ujjain by the Superintendent Engineer, Municipal Corporation, Ujjain, in the presence of the representatives of the petitioners, who choose to be present. The technical committee constituted by the Ujjain Municipal Corporation will scrutinize the applications and reserves the right to recommend for enlisting of the petitioner or for rejecting any of the tender document to the Ujjain Municipal Corporation, without assigning any reason thereof.

11. Out of total five tenderers, three were found to be OK, they are Amit Zindal, Vimal Chand Jain and present petitioner. The last turn over of Shri Amit Zindal was Rs.19.3 Crores and his bid capacity was 1616.15 lacs. The turn over of second tenderer Vimal Chand Jain was Rs.372.64 lacs and his bid capacity was Rs.454.85 lacs. The turn over of the present petitioner was Rs.185.68 lacs and his bid capacity was Rs.188.77 lacs. As per report, the first successful bidder was Amit Jindal, the second successful bidder was Vimal Chand Jain and the present petitioner was third bidder. The petitioner was disallowed by the respondent No.2 (Superintendent Engineer, Municipal Corporation) to participate in the financial bid on account of not having bid capacity.

12. In the present petition, the petitioner is praying for limited relief to permit him to participate in the financial bid and quash the action of the respondent No.2 by which he was disqualified to participate in the bid on the ground that the petitioner fulfills all the criteria laid down in para 9 of the tender document. The petitioner is also praying for issuance of necessary directions to the respondent No.2 to disqualify the respondent No.3 from participating in the financial bid.

13. The law on the subject is very well settled. It is open to the State and the authorities to take management decisions depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest. If every decision taken by the State is tested by a microscopic and a suspicious eye, administration will come to a standstill and the decisionmakers will lose all their initiative and enthusiasm. In the present case, there is no improper exercise of power on the part of Municipal Corporation. The scope of judicial review is very limited in contractual matters even where, one of the contractual party is State or instrumentality of the State. Only the decision making process and not the merits of the decision itself is reviewable as Court does not sit as appellate Court while exercising power of review. In the case in hand, the tender of the petitioner was rejected (not selected) on the ground of non-compliance with tender conditions.

14. On due consideration of the aforesaid, no case is made out to interfere in the matter. The writ petition filed by the petitioner has no merit and is accordingly, dismissed.