Dismissal of appeal on non-compliance of documents regarding physical possession of machinery: High Court of Shimla.
Once the bid document required a contractor to show that he was in physical possession of a particular kind of machinery in working order, he cannot explain that he would procure the same in the future. This honorable judgement was passed by High Court of Shimla in the case of M/s. Amit Singla Versus State of Himachal Pradesh &amp; others [LPA No.78 of 2020] by The Hon’ble Mr. Justice L. Narayana Swamy and Chief Justice the Hon’ble Mr. Justice Anoop Chitkara. Aggrieved by the refusal of learned Single Judge to quash the evaluation proceedings and the tender process by which the tender allotted to the respondent; the petitioner had come up before this Court. Under the Standard Bidding Document, the petitioner had participated in the invitation for bid for improvement and strengthening of Thalout-Thachi-Somagd Road. Vide communication addressed to the petitioner by Chief Engineer, Mandi Zone, it was pointed out that the tender was under process of technical evaluation and they sought clarification primarily qua the following two points. Invoice-cum-delivery challan for Batching Plant costing Rs.23,75,000/- as uploaded doesn’t seem to be as per requirement of item P/L bituminous concrete with 100-120 TPH batch type hot mix plant, Tax invoice as uploaded by you doesn’t seem to be as per requirement of Track mounted mobile stone crusher as provided in the bid document. The company had assured to lease out a Batch Mix Plant to the petitioner for the work. Similarly, it gave the undertaking to lease out Jaw Crusher. The petitioner also submitted documents regarding works of Kalpa Division. During the evaluation of the tender documents, the Evaluation Committee vide proceedings found the petitioner’s offer and bid as non-responsive. In contrast, it found the technical bid submitted by the respondent as responsive. The court opinioned that, “Neither the company’s resolution to the said effect was attached, nor the amount of lease money for such undertaking. The date from which they will hand over the machinery was also not given. It was also not mentioned that such machinery was presently in working condition as of the undertaking’s date. Once the bid document required a contractor to show that he was in physical possession of a particular kind of machinery in working order, he cannot explain that he would procure the same in the future.”
 Hig h C o urt of H.P on 24 04 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLALPA No.720.Reserved on: March 2 2021.Date of Decision: April 24 2021.M s. Amit Singla …. Appellant.VersusState of Himachal Pradesh & others …. Respondents.Coram:The Hon’ble Mr. Justice L. Narayana Swamy Chief JusticeThe Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 yesFor the Appellant: Mr. Gaurav Chopra Mr. Pranay Pratap Singh andMr. Reshabh Bajaj Advocates.For the respondents:Mr. Ashok Sharma A.G. with Mr. Nand Lal Thakur Addl. A.G and Mr. Rajat Chauhan Law Officer forrespondents No.1 to 8.Mr. J.S. Bhogal Senior Advocate with Mr. SuneetGoel Advocate for respondent No.9.Anoop Chitkara Judge .Aggrieved by the refusal of learned Single Judge to quash the evaluationproceedings and the tender process by which the tender allotted to the respondent no. 9 the petitioner has come up before this Court.2.Under the Standard Bidding Document the petitioner had participated in theinvitation for bid for improvement and strengthening of Thalout Thachi Somagd RoadKm 0 0 to 34 0(Job No.CRF HP 2018 19 161)addressed to the petitionerby Chief Engineer HP.PWD Mandi Zone it was pointed out that the tender was under1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 24 04 HCHP 2 process of technical evaluation and they sought clarification primarily qua the followingtwo points:1).Invoice cum delivery challan for Batching Plant CP1881518900costing Rs.23 75 000 as uploaded by you doesn’t seem to be as perrequirement of item No.16dated 30.10.2019. The response of the petitioner to points No.1 and 2is extracted as follows: 1.In reply to the said point it may be brought to your notice that pointno.16that you have mentioned in this point is a part of thefinancial bid and not a part of the qualifying criteria or Technical Bid.There is no such point in the standard Bidding Document as availablewith us. Even the list where a proper list of machinery has beenpublished only a condition for Batching Plant is mentioned. There isno mention of a Batch Mix Plant to be used for making Cementousconcrete or bituminous mix. We have already shown the ownership ofa Cement Batch Mix plant and are further also submitting anundertaking from the owner of a similar Batch Mix plant and arefurther also submitting an undertaking from the owner of a similarBatch Mix Plant as desired by you as per letter dated 11.10.2019(annexed herewith as Annexure A 1). This undertaking clearly statesthat if we are awarded this work then the company giving theundertaking and owner of the similar Batch Mix Plant shall give thisplant on hire basis to our firm to complete the said work. Rather asper the additional conditions as per the latest IRC Codes of Practice stated on page 75 it is clearly mentioned that an affidavit has to begiven for installing the Batch Type Hot Mix Plant within 25 km fromthe location of the work and for the same an affidavit duly attested bynot less than Executive Magistrate has to be appended with the tenderdocuments. This condition has been duly complied with by our firm.2.In reply to point No.2 it is submitted that the invoice provided by usis for the crusher machine jaw plate for stone crusher machine withconveyor belt and idler roller and fully in consonance with therequirement of Track mounted mobile stone crusher as provided in thebid document. The only difference between the invoice provided by Hig h C o urt of H.P on 24 04 HCHP 3 us and the requirement of the tender is that our crusher is Wheelmounted while the department is asking for a track mounted crusher.The mode of mounting of the crusher will have no impact on theoutput of the crusher. Rather the wheel mounted crusher will bemuch more portable for a work to be executed in almost 25 KM.Additionally we are annexing the ownership proof and an undertakingof the firm which has consented to provide us with the said crusher onhire basis provided the work is awarded to our firmof theEvaluation Committee another stipulation was mentioned in column No.17as per which the petitioner s performance for the works carried out in KalpaDivision were to be considered.9.Challenging the declaration of the technical bid of the petitioner as non responsive the petitioner came up before this Court by filing CWP No.33619. Inthe said writ petition the petitioner sought quashing of the evaluation proceedings dated4.11.2019 of Evaluation Committeedirecting the respondents to openthe financial bid of the petitioner and restraining the first respondent from finalizing thetender process and further to restrain from awarding of the work mentioned above. 10.Vide judgment dated 14.12.2020 learned Single Judge of this Court dismissed thewrit petition. Challenging the dismissal of the petition for quashing of the declarationof the technical bid as non responsive the petitioner came up before this Court by filingan Intra Court Appeal under Clause 10 of the Letters Patent constituting the High Courtof Judicature at Lahore the 21st March 1919 as extended to the High Court ofHimachal Pradesh. Hig h C o urt of H.P on 24 04 HCHP 4 11.We have heard learned counsel for the parties and have gone through the record.12.The Evaluation Committee vide proceedings dated 4.11.2019to M s. Amit Singla Chandigarh on hire basisfor the execution of the work of “Improvement and Strengthening ofThalout Thachi Somagd Road Km.0 0 to 34 0(Job no.CRF HP 2018 19 161)(SH: ROFD FC M T CD Works R walls B wall PCC V ShapeDrain Parapets Crash Barriers Road Furniture Rain Shelter and SignBoard)” in Himachal Pradesh.”18.Now main reference is made to the tax invoice the description of goods in Taxinvoicereads as follows:“Roljack jaw crusher size:24”x16” Heavy Duty Single Toggle Machine Molded Swing Jaw Doubt Wheel Lubrication GREASE Type Jaw PlateMagnanese Steel chrome alloy Grade 7 Hydraulic Chrome Alloy Grade 7 Hydraulic jack for jaw Gap Setting Bear ”19.A perusal of this description does not point out that it is a track based crusher. Mr.Ashok Sharma learned Advocate General stated on instructions that the strata of theconcerned road are slushy. The area gets lots of rain and snow due to which thepossibility of wheel mounted stone crusher being struck up in the slush would be there and to rule out that situation the department insisted on a track mounted mobile stonecrusher. We can take judicial notice that a track mounted mobile stone crusher issimilar to a battle tank which moves on a self laid track. It is in contrast to any vehiclethat moves on wheels which may get stuck up in snow slush or marshy lands. Theconcerned engineers who were experts in hill road making could conceive the possible Hig h C o urt of H.P on 24 04 HCHP 6 bottlenecks in the construction. To ensure timely and speedy construction they insistedupon a track mounted mobile stone crusher. Initially the petitioner did not annex thedocuments and subsequently annexed a document of ownership of another privatelimited company with its undertakings and that too of a crusher which did not establishwith certainty that it was track mounted. Except the undertaking there is no otherdocument on record to show that the machinery was track mounted. 20.A perusal of the undertaking given by M s. NH Construction Private Limitedreveals that they had undertakento lease out such machinery without specifyingany terms and conditions. Neither the company s resolution to the said effect wasattached nor the amount of lease money for such undertaking. The date from whichthey will hand over the machinery was also not given. It was also not mentioned thatsuch machinery was presently in working condition as of the undertaking s date.21. Once the bid document required a contractor to show that he was in physicalpossession of a particular kind of machinery in working order he cannot explain that hewould procure the same in the future. The essence of civil construction is the time limitwithin which the construction must be completed. The violation of the time limit leadsto the escalation of price and throwing out of gear the schedules of so many other unitsand things which depend upon the project s timely completion.22. Resultantly there is no error in the Evaluation Committee for declaring thepetitioner appellant s technical bid as non responsive. Consequently there is no reasonto interfere in this tender process.23.The learned Single Judge vide his detailed and very well reasoned judgment hadalso arrived at the similar conclusion.Given above there is no merit in the appeal which is accordingly dismissed. Chief Justice. April 24 2021Judge 