WP(C) No. 4282 of 2012 - CAV Page 1 of 21 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 4281/2012 Shri Raju Ali Son of Sadhlle Ali, Resident of Geleki, Kalgaon, P.O., P.S. – Geleki, District – Sivasagar, Assam. ………..Petitioner -Versus- 1. The Union of India, represented by the Secretary to the Government of India, Ministry of Petroleum, New Delhi, India. 2. Oil and Natural Gas Corporation Ltd. – A Govt. of India Enterprise duly incorporated under the Companies Act, 1956 having its Registered Office at Jivan Bharati Tower-II, 124 Cannought Circus, New Delhi-110100 and Regional Office at Nazira in the district of Sivasagar, Assam – represented by the Executive Director, Eastern Region, ONGCL, Nazira, Assam. 3. The GM-Head (M.M), Contract Cell, ROB- II, 1 st Floor, Nazira, Sivasagar, Assam – 785685. 4. The Manager (M.M), Oil and Natural Gas Corporation Ltd., Contract Cell, ROB-II, 1 st Floor, Nazira, Sivasagar, Assam- 785685.
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WP(C) No. 4282 of 2012 - CAV Page 1 of 21
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) 4281/2012 Shri Raju Ali
Son of Sadhlle Ali,
Resident of Geleki, Kalgaon,
P.O., P.S. – Geleki,
District – Sivasagar, Assam.
………..Petitioner
-Versus-
1. The Union of India, represented by the
Secretary to the Government of India,
Ministry of Petroleum, New Delhi, India.
2. Oil and Natural Gas Corporation Ltd. – A
Govt. of India Enterprise duly
incorporated under the Companies Act,
1956 having its Registered Office at Jivan
Bharati Tower-II, 124 Cannought Circus,
New Delhi-110100 and Regional Office at
Nazira in the district of Sivasagar, Assam
– represented by the Executive Director,
Eastern Region, ONGCL, Nazira, Assam.
3. The GM-Head (M.M), Contract Cell, ROB-
II, 1st Floor, Nazira, Sivasagar, Assam –
785685.
4. The Manager (M.M), Oil and Natural Gas
Corporation Ltd., Contract Cell, ROB-II,
1st Floor, Nazira, Sivasagar, Assam-
785685.
WP(C) No. 4282 of 2012 - CAV Page 2 of 21
5. M/s. Balmer Lawrie 7 Co. Ltd. – A Govt.
of India Enterprise with its registered
office at 21 Netajit Subhas Road, Kolkata
-700001 (India).
…………….Respondents
BEFORE
THE HON’BLE MR. JUSTICE B. K. SHARMA
For the Petitioner : Mrs. M. Hazarika, Sr. Adv.
Ms. R. Gogoi, Adv.
For the Respondents: Mr. G. N. Sahewalla, Sr. Adv.
Mr. B.K. Das, Adv.
Mr. M. K. Choudhury, Sr. Adv.
Mr. N. Baruah, Adv.
Date of hearing : 24/06/2013.
Date of Judgement : 02/08/2013.
JUDGEMENT AND ORDER (CAV)
The matter pertains to awarding of contract for handling and
processing of Oily Sludge of Assam Assets. The petitioner, who was a
tenderer for the said work is aggrieved by rejection of his technical
bid. His prayer in the writ petition is for a direction to the
respondents to open his commercial bid and thereafter to proceed
with the matter in terms of the particular tender notice.
2. By Annexure-a Invitation to Bid (ITB) dated 24/02/2012, the
ONGC authority invited bids under two bids system i.e. technical and
commercial, for handling and processing of Oily Sludge of Assam
Assets. As notified in the ITB, the date and time of submission of
bids and date and time of opening techno-commercial bids were
29/03/2012 (1400 hrs) and 29/03/2012 (1500 hrs) respectively.
WP(C) No. 4282 of 2012 - CAV Page 3 of 21
3. Pursuant to the said ITB, the petitioner along with another
including the respondent No.5 submitted tenders. According to him,
he had conformed to the requirements of the bid.
4. As stated in the writ petition, the bid offered by the 3rd party
was found defective and accordingly the same was rejected.
According to the petitioner, the bids submitted by the petitioner and
the respondent No.5 were found technically acceptable as they
fulfilled the norms prescribed in the ITB dated 24/02/2012. The bid
validity period was for 120 days from the date of opening of
technical bid but the respondent ONGCL vide e-mail dated
28/08/2012 asked the petitioner to extend the validity of the bid.
Similarly, the respondent NO.5 was also asked to extend its bid
validity period.
5. In response to the said e-mail, the petitioner submitted his
consent for extension of the validity period. According to the
petitioner, the respondent No.5 made a conditional offer for
extension of the validity of the bid subject to rejection of the tender
of the petitioner on the ground that the petitioner being the local
tenderer, the respondent No.5 cannot compete with the petitioner
in bid price. It is the further plea of the petitioner that in
consideration of the said demand made by the respondent No.5,
while opening the commercial bid of the respondent No. 5 on
05/09/2012, the ONGCL did not open the commercial bid of the
petitioner and resultantly the respondent No. 5 became the lone
tenderer, whose commercial bid was opened and accepted.
6. It has been stated in the writ petition that on being queried,
the petitioner was apprised that the work executed by the petitioner
earlier did not cover the execution of processing of Oily Sludge and
as such, the experience of the petitioner in execution of the
particular work was lacking.
7. It is the case of the petitioner that the grounds assigned for
rejection of the technical bid of the petitioner was after thought
WP(C) No. 4282 of 2012 - CAV Page 4 of 21
with a view to justify the action in not opening the commercial bid
and confining the same only to the respondent No.5.
8. The petitioner had executed certain works under the
respondent No.5 as sub-contractor pursuant to the purchase orders
dated 04/12/2007 and 12/05/20087 (Annexure – B/1 and B/2). As
claimed by the petitioner, the said works related to lifting of Oily
Sludge till disposal of the same which invariably included the
processing of the Oily Sludge. As regards the plea of the respondents
that the petitioner did not annex along with the tender documents
the Job Completion Certificate in respect of the particular Work
Order dated 03/02/2011, it is the case of the petitioner that the
other documents submitted along with the bid were sufficient to
show the execution of the work. Thus, in a nutshell, the case of the
petitioner is that he having conformed to the required experience of
handling and processing of the Oily Sludge under the respondent
No.5, his technical bid ought not to have been rejected on the
ground of lack of experience, which according to him is an
afterthought and only to suit the purpose of awarding the contract
to the respondent No. 5.
9. Denying the aforesaid pleas of the petitioner raised in the
writ petition, the respondent ONGCL has filed its affidavit, in which
it has been stated that the petitioner having had no experience as
per the requirement of ITB, his technical bid was not acceptable.
Referring to the particular Work Order dated 03/02/2011 issued by
the respondent No.5 to the petitioner, it has been stated that he
was allotted only with pre-operative activities like area dressing,
leveling and operation assistance, supply of man-power etc. It has
also been stated that inspite of granting opportunities, the
petitioner failed to produce any document in support of his
experience. As regards the extension of bid value, it has been
contended that the same cannot lead to the conclusion that the
technical bid of the petitioner was accepted. As regards the works
involved i.e. handling and processing of Oily Sludge of Assam Assets,
Nazira at Sivasagar, it has been stated thus :-
WP(C) No. 4282 of 2012 - CAV Page 5 of 21
“That the deponent admits the statements made in
paragraph 3 of the writ petition to the effect of
invitation of bid dated 24.2.2012 (Tender No.
R16DC12002) for Handling and Processing of Oily
Sludge of Assam Asset, Nazira, Sivasagar. It is
stated that during drilling activities for the purpose
of exploration of hydrocarbons i.e. oil, gas, some
waste products are also general which includes
chemicals, debris, sediments soils, water and some
amount of hydro carbons in a mixture from which is
altogether called “Oily Sludge”. The methodology
involved in separating the components of oily sludge
through chemicals mechanized process through
special equipments is called “Processing of Oily
Sludge.”
10. Referring to the work experience of the petitioner as
mentioned in paragraph 7 of the writ petition, the respondent
ONGCL in its counter affidavit has stated thus :-
“Para 10. That the statements made in
paragraphs 7 of the writ petition are not admitted
by the answering respondents and the petitioners
are put to the strictest proof of the same.
It is submitted that as per the information
furnished by Respondent No.5, they had awarded
the work to the petitioner for necessary enabling
work, to provide support services by providing
transportation, local manpower etc. The respondent
No. 5 also stated that the scope of work in the work
order clearly defined the nature of work executed
by the petitioner and it cannot be construed that
they are capable of providing technical support in
the form of processing knowledge or selection of
appropriate technology.
WP(C) No. 4282 of 2012 - CAV Page 6 of 21
The work orders as well as job completion
certificates of the petitioner do not state that
process of sludge was ever done by the petitioner.
The statement that the sub-contract involved
processing of oily sludge cannot be established from
the documents submitted in petitioner’s bid and
presumption what so ever may be drawn in absence
of requisite documents as per the specific provisions
of tender in question. The petitioner only provided
local manpower and they do not posses the
processing knowledge of sludge processing. The
present tender dated 24.2.2012 is primarily for the
processing oily sludge. Therefore the experience as
shown by the petitioner through work order
(Annexure-D of the writ petition page 116) issued by
the Respondent No. 5 to the petitioner cannot be
construed as experience for the current tender.
11. That the statements made in paragraph 8 of
the writ petition are incorrect and hence denied by
the answering respondents. As confirmed by the
Respondent No.5 (M/s. Balmer Lawrie), the
petitioner was awarded peripheral (secondary) work
of handling and transportation of sludge, which is a
simple job. The work involved only providing
unskilled manpower and not processing of sludge,
which requires technical support in the form of
process knowledge or selection of appropriate
technology and the petitioner does not possess
same.
It is stated that mere receipt of work order
does not mean that bidder has gained the requisite
experience. In this regard clause 2.1(a02 of BEC
quoted by petitioner in para 4 may be referred. The
WP(C) No. 4282 of 2012 - CAV Page 7 of 21
petitioner was required to submit copies of
respective contracts along with documentary
evidence in respect of satisfactory execution /
completion of contracts, in the form of copies of any
of the documents (indicating respective contract
number and type of services) (indicating respective