1 2025:CGHC:19550-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 2115 of 2025 M/s Vineet Singh Construction Company Pvt. Ltd. (A-5) Through Its Managing Director, Vineet Singh, S/o Late Sudhish Singh, Aged About 51 Years, Maharana Pratap Colony, Yadunandan Nagar, Tifra, Bilaspur (C.G.) ... Petitioner versus 1. State of Chhattisgarh Through Its Secretary, Department of Water Resources, Mahanadi Bhawan, P.S.- Rakhi, Naya Raipur Atal Nagar, Distt. Raipur (C.G.) 2. Executive Engineer (Tender Cell) O/o EinC, Shivnath Bhawan North Block, Sector 19 Nava Raipur Atal Nagar Water Resources Department, Raipur (C.G.) 3. The Chief Engineer Hasdeo Basin, Water Resources Department, Bilaspur (C.G.) ... Respondents For Petitioner : Mr. Vivek Verma, Advocate For State/Respondents : Mr. Prafull N. Bharat, Advocate General, assisted by Mr. Shashank Thakur, Deputy Advocate General Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma , Judge Order on Board Per Ramesh Sinha, C.J. 30.04.2025 BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.05.01 19:01:39 +0530 2 1. Heard Mr. Vivek Verma, learned counsel for the petitioner. Also heard Mr. Prafull N. Bharat, learned Advocate General, assisted by Mr. Shashank Thakur, learned Deputy Advocate General, appearing for the respondents/State. 2. The present petition has filed by the petitioner with the following reliefs: “i. That, this Hon'ble Court may kindly be pleased to call for entire records of the case. ii. That, this Hon'ble Court may kindly be further pleased to direct to the Executive Engineer Tender Cell) to open the tender no. NIT No. 13/SAC/2024- 25, dated 19.12.2024, System Tender No. 163061 iii. That, this Hon'ble Court may kindly be further pleased to direct to the Executive Engineer (Tender Cell) i.e. Respondent no. 2 to decide the representation/reply dated 25.02.2025 of the petitioner after consideration all the documents and calculation in respect of qualification in bid capacity and pass the reasoned and speaking orders. iv. It is prayed before this Hon'ble court to quash the disqualification letter dated 25.02.2025 in respect of disqualification of the bid capacity and further directed to consider the case of the petitioner. V. That, any other relief or reliefs, which this Hon'ble Court deems fit and proper in view of the facts and circumstances of the case, may also be granted.” 3. The facts of the petition as per petitioner are that the petitioner is a registered firm under the Companies Act, 1956 under the name 3 and style of Vineet Singh Construction Company Private Limited Bearing Registration No. U45201 CT 2002 PTC 15447. The petitioner has successfully undertaken a number of works contract granted to him in the past by the Water Resources Department. The Government of Chhattisgarh, Water Resources Department Notice for Invited Tender vide NIT No. 13/SAC/2024-25 dated 19.12.2024, System Tender No. 163061 under the name of project NETANAGAR ANICUT SCHEME and the name of the work "balance work of construction of NETANAGAR ANICUT SCHEME, the name of the project NETANAGAR ANICUT SCHEME. The probable amount of contract 627.01 lakhs and the amount of earnest money Rs. 3,14,000/-, the department time allowed for completion of the contract 09 months (including rainy season) from the date of issue of work order. 4. The tender time schedule mention in bid start date and time on 26.12.2024 at 05:30 P.M., bid due date and time is 06.01.2025 at 05:30 P.M. and bid open date fix is 07.01.2025 at 11:30 A.M. The tender shall be submitted only online during office hours up to due date 06.01.2025 at 05:30 hours, the tenderer shall submit his tender online only in three separate sealed envelopes marked as a Envelop A, Envelop B and Envelop C. The tenderer/petitioner participated in the NIT No. 13/SAC/2024-25 and submitted all the documents required as per the tender's conditions online along with the documents, certificates, Memorandum of Association, Agreement completion certificate, concrete work certificate, 4 details of work-in-hands, work-in-hands certificate and other documents. 5. As per the date time details, date is fixed for bid open/start date 07.01.2025 at 11:30 A.M. but on the said date, the respondent has not opened the bid and also there is no intimation/information given to the tenderers in respect of non-opening of the tenders. Clause 5 in respect of opening of tender specifically mentioned that all the tenders collected which have been collected online shall be opened (Envelope “A” and “B”) on dated 07.01.2025, 11:30 hours. 6. Due to election in the State of Chhattisgarh, the State Election Officer issued notification in the State of Chhattisgarh for election of the Panchayat and Municipalities from 20.01.2025 to 25.02.2025 and during the period due to code of conduct, the State has not opened the tender. At time of submitting the tender i.e. 06.01.2025 the total turnover of the petitioner is 1426.32 lakhs and after the bid capacity calculation, the total bid capacity of the petitioner is 1604.61 and after the deducting the work-in-hand 103.79, the net bid capacity of the petitioner is 1500.82 lakhs. After submitting the tender, the petitioner has also applied to other tender and subsequently the tender awarded in favour of the petitioner namely SILPAHRI ANICUT Pendra Division on 14.01.2025 and KURDUR ANICUT Kota Division on 17.01.2025 and other MANJHIPARA STOP DAM cum causeway Pendra 5 Road Division on 20.01.2025 and subsequently the petitioner subletted 25% of the work in part of the above two tender works namely SILPHARI ANICUT (contract amount 78.60 Lakhs) and MANJHIPARA STOP DAM cum crossway (contract amount 69.39 Lakhs) amount Rs. 147.99 lakhs to sub-contractor on 03.02.2025 and thereafter the net bid capacity of the petitioner is 757.94 Lakhs. The Executive Engineer (Tender Cell) vide dated 25.02.2025, intimated to the petitioner that during the scrutiny of the document the petitioner is found disqualified due to not fulfilled the bid capacity criteria as per NIT and also given two days for explanation. 7. The petitioner immediately submitted a reply regarding disqualification in Tender system No. 130601. The petitioner submitted the detailed documents against the disqualification in tender No. 130601 with the chart and certificate issued by the respondents in respect of sub-letting the work to the sub- contractor as well as the status of the bid capacity and as per the calculation of the bid capacity that is on 25.02.2025, the net bid capacity of the petitioner is 757.94 Lakhs and the petitioner is entitled for this Tender as per the net bid capacity. The petitioner submitted the reply along with the calculation as well as the documents in respect of subletting of the contract on 25.02.2025. 8. As per the clause 2.12 of the NIT, the contactor sublet or assign to any other party or parties, any portion of the work under the 6 contract. However, such subletting in no case be more than 25% of the contract value but if required can be increased up to 50% with the prior written permission of the next higher authority accepting the tender with the certain conditions. It is further submitted that the respondent vide letter dated 03.02.2025 given written permission for subletting the MAJHIPARA STOP DAM cum causeway Project as well as SILPHARI ANICUT Project as per the clause 2.12 of the NIT and sublet 25% of the total work. 9. The petitioner subletted SILPHARI ANICUT and MANJHIPARA STOP DAM cum causeway, sublet amount 78.60 lakhs and 69.39 lakhs. Total sublet amount 147.99 lakhs. As per the clause 4.3.25 (ii) of the tender documents: 4.3.25 Subletting of the works: (ii) subletting of work as per clause 2.12 od Appendix 2.10-A shall result in reduction in experience (Physical and financial) of the main contractor to the extend of the sublet, and accounted in to the experience of the sublet contractor. 10. After subletting the project the total net bid capacity of the petitioner is 757.94 lakhs i.e. more than the amount of the contract i.e. 627.01 lakhs and the petitioner is qualified and fulfilled the bid capacity criteria as per NIT. After the 06.01.2025 whereby the petitioner submitted his pre-qualified tender documents but this tender has not been opened on 07.01.2025, 7 meanwhile the respondent awarded three other tender in favour of the petitioner on 14.01.2025, 17.01.2025 and 20.01.2025 and all the detailed of the tender has already been elaborated by the petitioner in the above Para (8.13) and the respondent automatically deducted the bid capacity of the petitioner, and also after permission of the competent authority as per clause 2.12 of the NIT given permission for subletting the work as per the terms and conditions as per the NIT. The respondent authority neither considered the reply dated 25.02.2025 submitted by the petitioner along with the document in respect of fulfilling the eligibility criteria regarding bid capacity as per NIT, nor given any response in respect to reply dated 25.02.2025. Hence, this writ petition. 11. Learned counsel for the petitioner submits that the impugned order 25.02.2025 (Disqualification due to not fulfilled the bid capacity) was bad in facts as well as in law and passed without due application of mind. As per the tender document, the petitioner qualified the bid capacity criteria. As per clause 1.1 physical turnover, clause 1.2 financial turnover and Clause 1.3 bid capacity, the petitioner is qualified in all the condition as per the NIT, but the respondent vide letter dated 25.02.2025 disqualified the petitioner due to not fulfilling bid capacity criteria as per NIT without any calculation and without assigning the reason and speaking order. He further submits that the petitioner submitted his entire documents for pre-qualification bid on 06.01.2025, the bid capacity of the petitioner is 1500.82 lakhs and due date for 8 open the bid is schedule on 07.01.2025, but tender has not been opened and subsequently intimated on 25.02.2025 and during this period the petitioner has applied other tender and successfully qualified and as on 25.02.2025 the bid capacity of the petitioner is 757.94 lakhs and as per the condition of the NIT, the petitioner is qualified for this tender. He also submits that the respondent disqualified the petitioner only on the ground of bid capacity but actually the petitioner as per the calculation is qualified and the respondent has not been mentioned the calculation in respect of bid capacity. The action of the respondent is illegal and arbitrary. The petitioner submitted the reply against the disqualification order dated 25.02.2025 before the competent authority and also submitted the detailed calculation part of the petitioner in respect of the bid capacity as per the NIT, but the respondent neither considered the reply and calculation nor given any response. As such, the writ petition deserves to be allowed and to direct the Executive Engineer to open the tender and also to quash the disqualification letter dated 25.02.2025 in respect of disqualification of the bid capacity. 12. On the other hand, learned Advocate General assisted by learned Deputy Advocate General appearing for the respondents/State opposes the submissions made by learned counsel for the petitioner and submits that the bid submission date is 26.12.2024, bid due date & time is 6.1.2025 at 5.30 P.M. and and envelope “C” should contain the following: 9 The tender shall be submitted/received online only during office hours upto the due date 06.01.2025, at 17.30 hours. As such, the petitioner is required to submit the tender on 6.1.2025 by 5.30 P.M. He further submits that the bid capacity has to be assessed as under:- “1.3 Bid Capacity : Tenderer (Bidder) who meet the minimum qualification stipulated in 1.1 & 1.2 above shall be further evaluated for assessed bid capacity as under. Assessed Bid Capacity (1.5 x A x B) – C - L > Bid amount A – Maximum value of civil engineering works executed in any one year during last five years from 2019-2020 to 2023-2024 (10% weight-age per year shall be given to bring the value of work executed at present price level) experience of subsidiaries / subcontract and private work shall not be considered. B – Prescribed completion period in years. C – Amount of balance works in hand with tenderer at the time of receipt of tender. L – Value of works for which the tenderer is the lowest bidder and his tender is under consideration. The department may verify the certificates at any time of tendering process or work execution even after agreement. Therefore, the tenderer are advised to keep the original copies of the supported documentary evidences regarding their eligibility.” He further submits that the petitioner has submitted the tender 10 prior to 6.1.2025, along with it he has submitted the documents to show that what is the balance work in his hand. When it was decided that the petitioner is not fulfilling the bid capacity, he submitted the representation on 25.02.2025 (page 210 of the writ petition), which was rejected on 25.02.2025 (page 208 of the writ petition) found the petitioner disqualified due to not fulfilling bid capacity criteria as per NIT and according to the petitioner, he had subletted certain works and it was approved by the State Government, therefore, the work which was subletted by him to other contractors should be reduced from the work in hand. He also submitted that the subletting was approved, but the key part is date of subletting. On 3.2.2025, the petitioner was permitted for subletting and as per the terms and conditions given in clause 2.12 of the contract, 25% i.e. amount is Rs.69,38,939.00/- is allowed to be sublet to M/s. A.Z. Enterprises, D-category Contractor, Korba. He contended that on 03.02.2025 the petitioner was allowed to sublet to Geeta Inforises Private Limited and this subletting was allowed after the bid submission i.e. bid submission date is 6.1.2025 and subletting was allowed on 03.02.2025 and as such, this subletting cannot be considered and the writ petition deserves to be dismissed. 13. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the documents appended with writ petition. 11 14. From perusal of the documents, it transpires that bid submission due date is 6.1.2025 and subletting was allowed to the petitioner on 3.2.2025 i.e. after bid submission due date and this subletting cannot be considered to be allowed. 15. Considering the submissions advanced by learned counsel for the parties, perusing the documents appended with writ petition particularly Annexure P-7 at page 212 and 213 of the writ petition and also considering clause 1.3 of the NIT as also clause 2.12 of the NIT, we do not find any good ground to entertain this writ petition. 16. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. No cost(s). Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Bablu