(From previous issue)
16. In the instant case although the petitioner claims to have filed a complaint to the administrative authority and thereafter to CPTU against the decision of the procuring authority to evaluate its technical proposal under Rule 56 of the Public Procurement Rules, 2008 in our opinion it is in fact an Appeal to the concerned authority against the rejection of Va Tech Wabag Limited’s bid. This view appears to be further evident from the fact that the Tender Evaluation Committee and procuring authority made its final decision on the tender in its final technical proposal evaluation report dated 14th October, 2016 where it was clearly stated
“Bidder 7
The Final Technical Proposal of Bidder 7 contains:
=Material changes to the technical solutions from the (initial) Technical Proposal
=material failures to rectify aspects incorporated into the Memorandum entitled “Schedule of Non-Conformities”
=material failures to respond to addenda.
ITB 25.2 includes: The Executing Agency may reject the Bidder’s Final Technical Proposal if the basic technical solutions are not the same as those in the Bidders Technical Proposal:
As a result of the material changes to the technical solutions from the (initial), Technical Proposal, Bidder 7’s Final Technical Proposal may be rejected.
ITB Clause 25.2 also states that:
‘Failure by a Bidder to rectify all aspects incorporated into the Memorandum entitled “Schedule of Non-Conformities” or to submit a substantially responsive Final Technical Proposal in response to any final addenda to the Bidding Document, which may be issued by the Executing Agency in accordance with ITB 5 (Amendment of Bidding Document) and ITB 21.1 (a) (Invitation for Final Technical Proposals and Bids), will result in the rejection of the Bidder’s Final Technical Proposal.
“Therefore, the Final Technical Proposal of Bidder No., 7 is found not substantially responsive and is rejected pursuant to ITB Clause 25.2.”
Thereafter the Superintendent Engineer and Project Director of DESWSP by his letter dated 16-11-2016 informed Va Tech Wabag Limited that the Executive Agency has completed the evaluation of the Final Technical Proposals. In accordance with Clause 26.2 of the ITB we confirm that your Final Technical Proposal has been assessed not substantially responsive and so your Bid will not be opened. Four your information, in accordance with ITB 25.2 your. Final Technical Proposal was rejected as it contained:
* Material changes in the basic technical solution from your Initial Technical Proposal
*Material failures to respond to Schedule of Non Conformities (SoNC) and
*Material failures to respond to Addenda after the Initial Technical Proposal.
17. The aforesaid communication to Va Tech Wabag Limited clearly indicate that their bid was finally rejected by the procuring authority. Thereafter on 20-11-2616 Va Tech Wabag Limited filed its application for administrative review of evaluation of its Final Proposal for the Project to the Review Panel-2 of CPTU under Rule 56 and 57 of the Public Procurement Rules, 2008 . Thus in our opinion since Va Tech Wabag Limited filed its application to the Review Panel-2 of CPTU after rejection of its bid its aforesaid application was in fact an Appeal from the rejection which is barred under Sections 29 and 30 of the Public Procurement Act, 2006. The consequent findings of the Review Panel-2 of CPTU therefore cannot be sustainable in law.
18. In Writ Petition No.15003 of 2017 the petitioner Dhaka Water Supply and Sewerage Authority (DWASA) has prayed inter alia for a declaration that the judgment passed by the Review Panel-2 of CPTU allowing Review Application No. 60 of 2016 by Va Tech Wabag Limited directing to constitute a Technical Sub-Committee to re-evaluate the Final Technical Proposal should be declared illegal. It appears that although the Review Panel-2 of CPTU passed its judgment on 7-12-2016 the DWASA did not challenge it until filing of Writ Petition No. 15003 of 2017 which is as late as almost one year after passing of the said judgment and the delay has been explained in the said Writ Petition to have occurred due to ignorance of law. In the meantime DWASA appears to have constituted a 4 (four) member Sub-Committee pursuant to the decision of the Review Panel-2 of CPTU as evident from the Memo No. 46.085.014.01.00. 065.2016-97 dated 9th February, (Annexure 12 of the Affidavit-in-Opposition of the respondent Nos. 1-3) and Memo No. 46.085.014.01.00.065. 2016-61 dated 29th January, 2017 (Annexure 11 of the said Affidavit-in-Opposition). In Memo No. LGED/CE/E-57(Angsha-l)/2004/2073 dated 15-2-2017 (Annexure 14 of the Affidavit-in-Opposition of the respondent Nos. 1-3) certain difficulties have been pointed out by the Chief Engineer, Local Government Engineering Directorate, Agargoan, Dhaka. In the Memo No. 46.085.014.01.00. 004.2016-12 dated 05th January, 2017 (Annexure L to the Supplementary Affidavit in Writ Petition No. 13490 of 2017) the Secretary, Ministry of Local Government, Rural Development and Co-operatives, Local Government Division, Dhaka has stated that if the bid of Degremont-OTV JV accepted and the work order is awarded to them then the project cost will be higher than the estimated cost and opinion has been sought as to how surplus fund is to be procured. Paragraph Nos. 8, 10 and 11 are reproduced below:
?? ? ????????? ???? ??????-?? ??????? ? ??????? ??? ?????? ???? ?????? ????? (??????? ? ????? ???? ?? ?????? ????)? ???? ????? ??? ??????? ??? ???? ???? (?????) ??? ???? ??? ??, ?????? ??? ??????? ??????? ???????? ??????? ?? ?????????? ?? ??????? ??????? ? ??????? ??% ???? ????? ????, ?? ?????? ???????? ????????? ??? ????? ?????? ????????? ?????? ??? ??? ? ????????? ???? ???????? ????? ??? ?????? ???? ?? ????? ???? ???? ????? (?????? ??????? ? ???? = ??.?? ????) ??????? ??? ??? ??????? ?????? ?? ???? ????? ?????? ?????????? ?????????? ???? ???? ??% ???? ?? ???????? ??? ??????-?? ?????? ??????? ???? ???????? ?????? ??¯’?? ?? ????? ????????? ??????? ????? ?????? ????????? ????????? ??? ??? ????? ???????? ?????? ???, ??? ??? ? ????????? ???? ???????????? ????????? ?????? ??? ???? ?? ????? ??????? ???? ???????? ?????? ???????????? ????? ?????? ?????????? ?????? ???????? ???????? ? ?? ???????????? ??? ?? ??? ???? ??? ?? ?????? ??? ??? ? ????????, ????? ?????? ?????????? ???????? ???? ????? ?????? ?????????? ??????? ????¯’? ??? ??? ??????? ??? ??? ¯’???? ????? ????? ??? ????
??? ???????? ?? ????? ???????? ???? ??? ????? ? ?????-? ????? ?? ????????? ???? ????? ??? ?? ??? ????????? ????? ????? ??? ????”???????? ??????? ???? ? ???????? ????????????? ???? ?????-?? ?????? ??? ????????? ????? ?????? ???????? ????????? ????? ???????? ??????????? ?????????? ??????? ????????? ???????? ???????? ??? ????????? ???? ?????? ???? ????????? ?????????? ??????? ??? ??? ????
??? ¯’???? ?????, ????? ?????? ? ????? ?????????? ???????? ??????? ?????? ??????? ? ???-??-??????? ???????, ??????? ?????? ??? ?????? ???? ????????? ?????????? ??????? ???????? ??? ?????? ?????? ???????
19. Thus even though the petitioner DWASA in Writ Petition No. 15003 of 2017 has impugned the judgment and order of the Review Panel-2 of CPTU they appear to have made an effort to implement and it is not clear why they have come to this Court after almost one year with a prayer to declare the same illegal. Furthermore from the aforesaid Memo dated 5-1-2017 (Annexure L) it appears that the Ministry of Local Government, Rural Development and Cooperatives, Local Government Division, Dhaka has made a proposal to the Cabinet Committee for Government Purchase (CCGP) to cancel the present tender and invite fresh bids for the Dhaka Environmentally Sustainable Water Supply Project (DESWSP) but from the Memo dated 13-12-2017 (Annexure Y-2) it appears that the matter was dropped from the Agenda of the meeting of the CCGP dated 18-1-2017 (Annexure 21) but there is nothing before us to show the final outcome of the aforesaid proposal for cancelling the present tender.
20. The learned Deputy Attorney General has vehementally submitted that if there is fresh tender then it will cause a Jelay in implementation or the Project and that ADB is going to withdraw its promised fund for the Project and that may frustrate the project. It is for the respondents to decide whether to take decision in the light of the proposal by the Ministry of Local Government, Rural Development and Co-operatives, Dhaka (Annexure L) for fresh tender or whether to award the work order to Degremont OTV JV even though their quoted Project cost is more than 43% of the estimated cost as these matters are beyond the scope of adjudication by this Court. Thus in our opinion both the Writ Petitions suffer from legal infirmities and the Government is at liberty to make a final decision on the proposal by the Ministry of Local Government, Rural Development and Co-operatives, Dhaka vide Annexure L and proceed accordingly in awarding the work.
21. With the above observations both the Rules are disposed of.
There will be no order as to costs.
(Concluded)
16. In the instant case although the petitioner claims to have filed a complaint to the administrative authority and thereafter to CPTU against the decision of the procuring authority to evaluate its technical proposal under Rule 56 of the Public Procurement Rules, 2008 in our opinion it is in fact an Appeal to the concerned authority against the rejection of Va Tech Wabag Limited’s bid. This view appears to be further evident from the fact that the Tender Evaluation Committee and procuring authority made its final decision on the tender in its final technical proposal evaluation report dated 14th October, 2016 where it was clearly stated
“Bidder 7
The Final Technical Proposal of Bidder 7 contains:
=Material changes to the technical solutions from the (initial) Technical Proposal
=material failures to rectify aspects incorporated into the Memorandum entitled “Schedule of Non-Conformities”
=material failures to respond to addenda.
ITB 25.2 includes: The Executing Agency may reject the Bidder’s Final Technical Proposal if the basic technical solutions are not the same as those in the Bidders Technical Proposal:
As a result of the material changes to the technical solutions from the (initial), Technical Proposal, Bidder 7’s Final Technical Proposal may be rejected.
ITB Clause 25.2 also states that:
‘Failure by a Bidder to rectify all aspects incorporated into the Memorandum entitled “Schedule of Non-Conformities” or to submit a substantially responsive Final Technical Proposal in response to any final addenda to the Bidding Document, which may be issued by the Executing Agency in accordance with ITB 5 (Amendment of Bidding Document) and ITB 21.1 (a) (Invitation for Final Technical Proposals and Bids), will result in the rejection of the Bidder’s Final Technical Proposal.
“Therefore, the Final Technical Proposal of Bidder No., 7 is found not substantially responsive and is rejected pursuant to ITB Clause 25.2.”
Thereafter the Superintendent Engineer and Project Director of DESWSP by his letter dated 16-11-2016 informed Va Tech Wabag Limited that the Executive Agency has completed the evaluation of the Final Technical Proposals. In accordance with Clause 26.2 of the ITB we confirm that your Final Technical Proposal has been assessed not substantially responsive and so your Bid will not be opened. Four your information, in accordance with ITB 25.2 your. Final Technical Proposal was rejected as it contained:
* Material changes in the basic technical solution from your Initial Technical Proposal
*Material failures to respond to Schedule of Non Conformities (SoNC) and
*Material failures to respond to Addenda after the Initial Technical Proposal.
17. The aforesaid communication to Va Tech Wabag Limited clearly indicate that their bid was finally rejected by the procuring authority. Thereafter on 20-11-2616 Va Tech Wabag Limited filed its application for administrative review of evaluation of its Final Proposal for the Project to the Review Panel-2 of CPTU under Rule 56 and 57 of the Public Procurement Rules, 2008 . Thus in our opinion since Va Tech Wabag Limited filed its application to the Review Panel-2 of CPTU after rejection of its bid its aforesaid application was in fact an Appeal from the rejection which is barred under Sections 29 and 30 of the Public Procurement Act, 2006. The consequent findings of the Review Panel-2 of CPTU therefore cannot be sustainable in law.
18. In Writ Petition No.15003 of 2017 the petitioner Dhaka Water Supply and Sewerage Authority (DWASA) has prayed inter alia for a declaration that the judgment passed by the Review Panel-2 of CPTU allowing Review Application No. 60 of 2016 by Va Tech Wabag Limited directing to constitute a Technical Sub-Committee to re-evaluate the Final Technical Proposal should be declared illegal. It appears that although the Review Panel-2 of CPTU passed its judgment on 7-12-2016 the DWASA did not challenge it until filing of Writ Petition No. 15003 of 2017 which is as late as almost one year after passing of the said judgment and the delay has been explained in the said Writ Petition to have occurred due to ignorance of law. In the meantime DWASA appears to have constituted a 4 (four) member Sub-Committee pursuant to the decision of the Review Panel-2 of CPTU as evident from the Memo No. 46.085.014.01.00. 065.2016-97 dated 9th February, (Annexure 12 of the Affidavit-in-Opposition of the respondent Nos. 1-3) and Memo No. 46.085.014.01.00.065. 2016-61 dated 29th January, 2017 (Annexure 11 of the said Affidavit-in-Opposition). In Memo No. LGED/CE/E-57(Angsha-l)/2004/2073 dated 15-2-2017 (Annexure 14 of the Affidavit-in-Opposition of the respondent Nos. 1-3) certain difficulties have been pointed out by the Chief Engineer, Local Government Engineering Directorate, Agargoan, Dhaka. In the Memo No. 46.085.014.01.00. 004.2016-12 dated 05th January, 2017 (Annexure L to the Supplementary Affidavit in Writ Petition No. 13490 of 2017) the Secretary, Ministry of Local Government, Rural Development and Co-operatives, Local Government Division, Dhaka has stated that if the bid of Degremont-OTV JV accepted and the work order is awarded to them then the project cost will be higher than the estimated cost and opinion has been sought as to how surplus fund is to be procured. Paragraph Nos. 8, 10 and 11 are reproduced below:
?? ? ????????? ???? ??????-?? ??????? ? ??????? ??? ?????? ???? ?????? ????? (??????? ? ????? ???? ?? ?????? ????)? ???? ????? ??? ??????? ??? ???? ???? (?????) ??? ???? ??? ??, ?????? ??? ??????? ??????? ???????? ??????? ?? ?????????? ?? ??????? ??????? ? ??????? ??% ???? ????? ????, ?? ?????? ???????? ????????? ??? ????? ?????? ????????? ?????? ??? ??? ? ????????? ???? ???????? ????? ??? ?????? ???? ?? ????? ???? ???? ????? (?????? ??????? ? ???? = ??.?? ????) ??????? ??? ??? ??????? ?????? ?? ???? ????? ?????? ?????????? ?????????? ???? ???? ??% ???? ?? ???????? ??? ??????-?? ?????? ??????? ???? ???????? ?????? ??¯’?? ?? ????? ????????? ??????? ????? ?????? ????????? ????????? ??? ??? ????? ???????? ?????? ???, ??? ??? ? ????????? ???? ???????????? ????????? ?????? ??? ???? ?? ????? ??????? ???? ???????? ?????? ???????????? ????? ?????? ?????????? ?????? ???????? ???????? ? ?? ???????????? ??? ?? ??? ???? ??? ?? ?????? ??? ??? ? ????????, ????? ?????? ?????????? ???????? ???? ????? ?????? ?????????? ??????? ????¯’? ??? ??? ??????? ??? ??? ¯’???? ????? ????? ??? ????
??? ???????? ?? ????? ???????? ???? ??? ????? ? ?????-? ????? ?? ????????? ???? ????? ??? ?? ??? ????????? ????? ????? ??? ????”???????? ??????? ???? ? ???????? ????????????? ???? ?????-?? ?????? ??? ????????? ????? ?????? ???????? ????????? ????? ???????? ??????????? ?????????? ??????? ????????? ???????? ???????? ??? ????????? ???? ?????? ???? ????????? ?????????? ??????? ??? ??? ????
??? ¯’???? ?????, ????? ?????? ? ????? ?????????? ???????? ??????? ?????? ??????? ? ???-??-??????? ???????, ??????? ?????? ??? ?????? ???? ????????? ?????????? ??????? ???????? ??? ?????? ?????? ???????
19. Thus even though the petitioner DWASA in Writ Petition No. 15003 of 2017 has impugned the judgment and order of the Review Panel-2 of CPTU they appear to have made an effort to implement and it is not clear why they have come to this Court after almost one year with a prayer to declare the same illegal. Furthermore from the aforesaid Memo dated 5-1-2017 (Annexure L) it appears that the Ministry of Local Government, Rural Development and Cooperatives, Local Government Division, Dhaka has made a proposal to the Cabinet Committee for Government Purchase (CCGP) to cancel the present tender and invite fresh bids for the Dhaka Environmentally Sustainable Water Supply Project (DESWSP) but from the Memo dated 13-12-2017 (Annexure Y-2) it appears that the matter was dropped from the Agenda of the meeting of the CCGP dated 18-1-2017 (Annexure 21) but there is nothing before us to show the final outcome of the aforesaid proposal for cancelling the present tender.
20. The learned Deputy Attorney General has vehementally submitted that if there is fresh tender then it will cause a Jelay in implementation or the Project and that ADB is going to withdraw its promised fund for the Project and that may frustrate the project. It is for the respondents to decide whether to take decision in the light of the proposal by the Ministry of Local Government, Rural Development and Co-operatives, Dhaka (Annexure L) for fresh tender or whether to award the work order to Degremont OTV JV even though their quoted Project cost is more than 43% of the estimated cost as these matters are beyond the scope of adjudication by this Court. Thus in our opinion both the Writ Petitions suffer from legal infirmities and the Government is at liberty to make a final decision on the proposal by the Ministry of Local Government, Rural Development and Co-operatives, Dhaka vide Annexure L and proceed accordingly in awarding the work.
21. With the above observations both the Rules are disposed of.
There will be no order as to costs.
(Concluded)
