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2021 DIGILAW 65 (MAN)

Devendra Construction Company v. State of Manipur

2021-10-29

KH.NOBIN SINGH

body2021
JUDGMENT [1] Heard Shri O.P. Mehta, learned Advocate with Shri R.K. Kulajit, learned Advocate appearing for the petitioner and Shri N. Kumarjit Singh, learned Advocate General appearing for the respondents. [2] By the instant writ petition, the petitioner has prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents for furnishing reasons for the rejection of its technical bid vide communication dated 24-09-2021 via email and for providing a reasonable period of time to file reply to those reasons; to direct the respondents to issue a speaking order after the same being considered by them; to issue a writ of mandamus or any other appropriate writ directing the respondents to open the financial bid of the petitioner and allot the bid to the petitioner in case its bid being found to be the lowest amongst all the bidders. [3.1] Facts and circumstances, as narrated in the writ petition, are that the petitioner is a partnership firm engaged in the business of civil engineering works for the last almost 20 years. It is an “AA” class contractor recognised by the Government of Rajasthan and is associated with various government projects. It has an impeachable track record and significant presence in the States of Rajasthan and Punjab. [3.2] The Respondent No.2, the Chief Engineer, Public Health Engineering Department (hereinafter referred to as “the PHED”) issued an NIT dated 27-02-2021 inviting bids from amongst the eligible bidders for the Manipur Water Supply Project for providing drinking water supply to 13 towns. The last date for submission of bids was 19-03-2021 but it was extended from time to time, of which the last one being the day on 10-09- 2021. The petitioner being eligible for it, submitted its bids on 09-09-2021. Thereafter, on 11-09-2021, the petitioner received a communication via email from the respondents informing that it should submit the audited reports of the last three (3) financial years and pursuant thereto, the petitioner provided the requisite audited report(s) to the respondents on 12-09-2021. [3.3] It was a bolt from the blue for the petitioner when it received a communication dated 24-09-2021 via e-mail informing very cryptically, arbitrarily and capriciously that its technical bid had rejected on the ground that it was not technically qualified at the time of technical evaluation. [3.3] It was a bolt from the blue for the petitioner when it received a communication dated 24-09-2021 via e-mail informing very cryptically, arbitrarily and capriciously that its technical bid had rejected on the ground that it was not technically qualified at the time of technical evaluation. In other words, the respondents, without assigning any reason, decided that the petitioner was not technically qualified for the financial bids. Immediately thereafter, on 24-09-2021 it-self, the petitioner wrote a letter via email to the respondents requesting them for providing reasons for the rejection of its bid at the time of technical evaluation. The respondents, instead of providing reasons for the rejection of its bid in order to maintain transparency, integrity and sanctity of the entire bidding process, denied the same vide their email dated 25-09-2021 contending that any query raised after the technical evaluation, should be entertained only after the finalization of the tender. [3.4] Being aggrieved by the said communications, the instant writ petition was filed by the petitioner on various grounds. The rejection of its bid, was mechanical, arbitrary, cryptic and capricious with no reason being assigned for it and no transparency was maintained by them. The said communications smelt foul play and seemed to favour some other bidder in the guise of rejecting the technical bid of the petitioner. The non-providing of any reason for the rejection of bids and entertaining all the queries only after the finalization of the tender are untenable for the reason that once the bid having been finalized, the third party rights would have automatically created as per the terms of the contract and it would become impossible for the respondents to undo the contract. Therefore, the present mechanism of the respondents to delay the query of rejection of bids is not only against the public interest but also against the settled legal principles which aim at prioritizing value maximization of the public exchequer. Article 14 strikes at the arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. It is well settled law that wherever there is arbitrariness in the State action, whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. It is well settled law that wherever there is arbitrariness in the State action, whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution as has been held by the Hon’ble Supreme Court in the case of Shayara Bano v. Union of India, (2017) 9 SCC 1 : 2017 Legal Eagle (SC) 746 that any legislation and/or order of any authority which is found to be manifestly arbitrary, can be struck down as violative of Article 14 of the Constitution. Clause C.1.2 of the tender documents categorically provides for a right of hearing of the bidders, in case if he feels that a proper procurement process is not being followed and/or his Techno-Commercial bid has been rejected wrongly. Therefore, if the respondents consider that there is any shortfall in the petitioner’s documents, they could have called for the same, if any, prior to mechanical, cryptic and arbitrary rejection of bids by them. The lowest bid of the successful bidder, M/s Keystone Infra (P) Limited being INR 191.79 crores, the financial bid of the petitioner is very-very competitive and if the present bid is finalized without assigning any lawful reasons for the rejection of its bid, it would not only be detrimental to the business of the petitioner but would cause loss for the public exchequer frustrating the entire object of the online bidding process. The Respondent No.2, without appreciating the representation of the petitioner, opened the financial bids of the other bidders in gross violation of the guidelines as envisaged in Clause C.1 of the Section-III of the tender documents. The communications dated 24-09-2021 and dated 25-09-2021 which have been issued by the respondent No. 2, are not only arbitrary, illegal and bad in law but are also violative of the principles of natural justice. [4.1] The stand of the respondents as indicated in the affidavit filed on behalf of the respondents, is that the petitioner’s bid was rejected on the ground that it did not submit the turnover certificate issued by a Chartered Accountant or equivalent of the respective country in the format as mentioned in Appendix-4 of the NIT. [4.1] The stand of the respondents as indicated in the affidavit filed on behalf of the respondents, is that the petitioner’s bid was rejected on the ground that it did not submit the turnover certificate issued by a Chartered Accountant or equivalent of the respective country in the format as mentioned in Appendix-4 of the NIT. It has also been stated therein that the JAL JEEVAN MISSION (JJM) was launched by the Government of India for providing “Functional Household Tap Connection (FHTC)” to every household by the year, 2024. In Manipur, this JJM is being implemented by the PHED, Government of Manipur with the target of completing it by the year, 2021-2022. For the current year, 2020-2021, the PHED issued the NIT dated 27-02-2021 for the work “Water Supply Project for Manipur State” for providing drinking water supply to 13 towns. This work is for the construction of water supply tanks and other structures in Manipur. [4.2] In Section-III: Evaluation and Qualification Criteria of the NIT, the terms and conditions of the technical criteria have been prescribed and it is the specific terms & condition under Section-III A.1, Sl.No.3 thereof that a bidder has to submit the average construction turnover which should be the audited financial statements for the last three financial years along with a turnover certificate issued by a Chartered Accountant or equivalent of the respective country in the format as mentioned in Appendix-4. [4.3] The petitioner submitted its turnover certificate which is not in the format as mentioned in Appendix-4 and that in the said certificate, there is no mention about the turnover from the execution of water supply and other civil engineering works. In other words, the petitioner failed to submit the turnover certificate in the format as mentioned in Appendix-4 of the NIT. Hence, the bid of the petitioner was rejected at the stage of technical bid for the violation and non-fulfillment of technical criteria provided under Section- III A.I, Para 3 of the NIT. As per the terms and conditions of the NIT, Section-II D.1 provides for a confidentiality clause which reads as follows: “D.1. Hence, the bid of the petitioner was rejected at the stage of technical bid for the violation and non-fulfillment of technical criteria provided under Section- III A.I, Para 3 of the NIT. As per the terms and conditions of the NIT, Section-II D.1 provides for a confidentiality clause which reads as follows: “D.1. CONFIDENTIALITY D.1.1 Information relating to the evaluation of bids and Recommendation of contract award shall not be disclosed to Bidders or any other persons not officially concerned with the bidding process until Contract award is communicated to all bidders.” In view of the above provisions, the PHED responded to the petitioner’s mail dated 24-09-2021 vide a return mail dated 25-09-2021 stating that any query raised after the opening of technical bid would be entertained only after the finalization of the tender. Since the Petitioner having participated in the process of NIT after fully knowing the terms and conditions of the NIT, there is no merit in the writ petition and as such, the same is liable to be rejected with heavy cost. [5] In its rejoinder affidavit, it has been stated by the petitioner that it did submit the turnover certificate in the format as mentioned in Appendix- 4 and along with the turnover certificate, the petitioner also enclosed a certificate obtained from the Chartered Accountant. A bare perusal of turnover certificate clearly reveals that the petitioner provided all the details as envisaged in the format mentioned in Appendix 4 of the bidding documents. Thus, the contention of the respondents that the petitioner failed to submit the turnover certificate in the format as mentioned in Appendix-4 of the NIT is absolutely misconceived, wrong, incorrect and frivolous. Therefore, the rejection of the technical bid of the petitioner on this count alone is not only flimsy, unreasonable but also suffers from vice of arbitrariness being violative of Article 14 of the Constitution. The respondents in para 7.l of their counter affidavit has categorically admitted that the tender opening committee rejected the petitioner’s technical bid upon “minute observation”, from which it is evident that the petitioner's technical bid had been rejected arbitrarily and capriciously. The respondents in para 7.l of their counter affidavit has categorically admitted that the tender opening committee rejected the petitioner’s technical bid upon “minute observation”, from which it is evident that the petitioner's technical bid had been rejected arbitrarily and capriciously. The expression “contract business” used in the certificate issued by the Chartered Accountant would mean turnover of the firm for the projects similar to that of the present NIT and therefore, there is no discrepancy in the certificate and the petitioner is having sufficient and good amount of experience as reflected from the turnover as stated in the certificate thereby making the petitioner fulfilling all the conditions as envisaged in Section-III of the tender documents. Assuming but not admitting that the certificate is not in accordance with the prescribed format, in that case, it was expected from the respondents who were expected to be fair and transparent in the public procurement process, to call upon the petitioner to rectify the alleged technical error as they did call for the details earlier from the petitioner. The details mentioned in the turnover certificate in the prescribed format are self-certified by the petitioner, the details of which are confirmed by the Chartered Accountant on his own letterhead and therefore, the tender documents of the petitioner cannot be faulted with. As regards the contention of the respondents made in para 7.2 of the counter affidavit that the turnover as provided by the petitioner does not mention “turnover from water supply”, it has been stated that the format of turnover certificate as envisaged in Appendix-4 of the tender documents nowhere provides for providing a separate turnover of water supply. The format of the turnover certificate provides for a combined turnover from “execution of water supply and other civil engineering works” and there is no separate column for mentioning of turnover from water supply only. The relevant extract of turnover certificate is re-produced herein below: Certified that, the Turnover of M/s. ________ from execution of Water Supply and other Civil Engineering works during the previous three (03) financial years is as below. Financial Year Amount (INR crores) 2017-18 2018-19 2019-20 Average INR______Crores (INR Figure in words) This certificate is given on the basis of copy of audited financial reports for profit/ loss account and balance sheet. Financial Year Amount (INR crores) 2017-18 2018-19 2019-20 Average INR______Crores (INR Figure in words) This certificate is given on the basis of copy of audited financial reports for profit/ loss account and balance sheet. The petitioner submitted a turnover certificate in the prescribed format based on the last three audited financial years, wherein the turnover from the execution of water supply and other engineering works has been mentioned together in line with the format of average turnover certificate as mentioned in Appendix-4 of the tender documents. [6] From the aforesaid pleadings, the short issues that arise for consideration by this Court, are as to whether the petitioner submitted its requisite documents and in particular, the turnover certificate in the format as mentioned in Appendix-4 of the bidding documents and if yes, whether the rejection of the technical bid of the petitioner by the respondents, without assigning any reason thereof, was violative of the provisions of Article 14 of the Constitution of India. [7] It has been vehemently submitted by Shri O.P Mehta, learned counsel appearing for the petitioner that the petitioner submitted all the documents in terms of the bidding documents including the turnover certificate as mentioned in Appendix-4. Without assigning any reason and probably for favouring other bidder, the technical bid of the petitioner was rejected by the respondents. Assuming but not admitting that the turnover certificate was not in accordance with the format as mentioned in Appendix-4, in that case, it was expected from the respondents who were expected to be fair and transparent in the public procurement process, to call upon the petitioner to rectify the alleged technical error as they had called for the details earlier from the petitioner. According to him, the judgment and order dated 11-10-2021 passed by this Court in WP(C) No.39 of 2021 : 2021 Legal Eagle (Manipur) 118, M/s Nezone Pipes & Structures v. State of Manipur & ors. is not applicable to the facts of the present case. Combating his submissions, it has been submitted by Shri N. Kumarjit Singh, the learned Advocate General that the petitioner failed to submit the requisite documents and in particular, the turnover certificate in the format as mentioned in Appendix-4. is not applicable to the facts of the present case. Combating his submissions, it has been submitted by Shri N. Kumarjit Singh, the learned Advocate General that the petitioner failed to submit the requisite documents and in particular, the turnover certificate in the format as mentioned in Appendix-4. The turnover certificate stated to have been filed by the petitioner, was not as per the format for the reason that it was not issued by the Chartered Accountant or equivalent but by the petitioner itself. Similar is the case with the certificate issued by the Chartered Accountant which was not in terms of the format as mentioned in Appendix-4. Whichever way one looks at, neither of them does fulfil the criteria and therefore, the technical bid was rightly rejected by the respondents. Moreover, it has been submitted by him that the issue involved herein is covered by the judgment and order dated 11-10-2021 passed by this Court in M/S Nezone Pipes & Structures case. [8] It is absolutely correct to say that the issues involved herein are identical to that of the ones involved in M/S Nezone Pipes & Structures case (supra) but since the facts and circumstances of these two cases are slightly different, the issues involved herein are to be considered and decided by this Court confining to the facts and circumstances of the present case. It may be noted that the bidding documents of these two cases are almost identical. In M/S Nezone Pipes & Structures case, this Court had the occasion to examine the relevant provisions of the bidding documents, the relevant portion of the said judgment and order containing the observations made by this Court therein which are also relevant for the present case, read as under: “[6] It is not in dispute that the NIT dated 26-03-2021 was issued by the Chief Engineer, PHED, Government of Manipur inviting online rate quotation from amongst the reputed manufacturers of GI Pipes. The said NIT contains and lays down various conditions, of which condition 1 provides that the bidding documents shall be downloaded from the website; that condition 15 provides that the authority reserves the right to cancel any or all bids without assigning any reason and that condition 17 provide that the details can be seen from the bidding documents. The said NIT contains and lays down various conditions, of which condition 1 provides that the bidding documents shall be downloaded from the website; that condition 15 provides that the authority reserves the right to cancel any or all bids without assigning any reason and that condition 17 provide that the details can be seen from the bidding documents. Section-1 of the bidding documents provides for the preparation of bids and para C 2 thereof provides that the technical bid shall comprise the documents mentioned in C 2 1 (Part-I). Section-III of the bidding documents provides for the evaluation and qualification criteria, of which the Sl. No.3 & 4 of the technical criteria which are relevant for the present case, read as under: 3 The manufacturer should have credential of supply for a minimum value of Rs. 40.00 crore (Rupees forty crore) only in one year to any Government Department during the last five financial years from FY 2015-16 to FY 2019-20 Performance certificate issued by an officer not below the rank of Executive Engineer shall be submitted as per Appendix-6. 4 The manufacturer should submit the audited financial statements for the last 3 (three) financial years from FY 2017-18 to FY 2019-20 to demonstrate the current soundness of the bidders’ financial position showing a minimum average turnover of not less that Rs.40.00 crore (Rupees forty crore) for the product under consideration in the tender. Audited Financial Statements for last 3 financial years along with Turnover Certificate issued by Chartered Accountant as per Appendix-4. The wordings of these two technical criteria are plain and unambiguous which require no interpretation at all. The criteria as mentioned in Sl.No.4 can be divided into three conditions one, the manufacturer should submit the audited financial statements for the last three financial years from the year, 2017- 18 to 2019-20; two, they should show a minimum average turnover of not less than Rs.40.00 crore and three, they should be for the product under consideration in the tender. It may be noted in this regard that the documents which are required to be submitted by the bidders, are the audited financial statements along with the turnover certificate issued by the Chartered Accountant as per Appendix-4 which is nothing but a format of the certificate to be issued by a Chartered Accountant and only the requisite details are to be filled up therein. A careful reading of the said criteria makes it very clear that a minimum average turnover will have to be one which can be easily and conveniently ascertained from the audited financial statements for the aforesaid years. In other words, the audited financial statements to be submitted by the bidders ought to reflect the turnover of the product under consideration in the tender so that the authority could easily verify and identify the minimum average turnover as shown in the certificate issued by the Chartered Accountant as per Appendix-4. [8] The average turnover certificate as per Apepndix-4 submitted by the appellant is on record and on perusal thereof, it is seen that the contention of the learned Advocate General that it is not strictly in terms of the Appendix-4, appears to be correct to that extent. As has been observed hereinabove, the Appendix-4 is nothing but a format of the certificate to be submitted by all the bidders, after the same being filled up with the requisite details/information. It is beyond our comprehension as to why the appellant being a partnership firm carrying on such a big business, could not submit its bids in the manner prescribed in the bidding documents and in particular, the certificate as per Appendix-4. Be that as it may, the turnovers for the financial years, 2017-18; 2018-19 and 2019-20 as shown in the certificate submitted by the appellant read as under: Financial year Total Turnover (INR Crores) Turnover of G.I. Pipes (INR Crores) 2017-18 279.66 106.94 2018-19 363.75 114.96 2019-20 322.42 109.92 The said certificate will have to be given by the Chartered Accountant on the basis of the audited financial reports for profit/Loss Account and Balance Sheets. The audited financial statements of the appellant for the financial years, 2017-18, 2018-19 and 2019-20 on the basis of which the certificate was given by the Chartered Accountant, are on record. The audited financial statements of the appellant for the financial years, 2017-18, 2018-19 and 2019-20 on the basis of which the certificate was given by the Chartered Accountant, are on record. The relevant portion of the auditor’s report dated 31-07-2018 for the financial year, 2017-18 reads as under: Year Ended Year Ended 31-03-2018 31-03-2017 (Rs.) (Rs.) SCHEDULE ‘I’ SALES Finished goods 2,70,70,85,367 1,72,96,54,690 By products 5,46,05,596 3,27,97,608 HR Coll/Slitt Sale 3,45,74,106 10,29,482 Total 2,79,63,65,069 1,76,34,81,780 The relevant portion of the auditor’s report dated 26-06-2019 for the financial year, 2018-19 reads as under: Year Ended Year Ended 31-03-2019 31-03-2018 (Rs.) (Rs.) SCHEDULE ‘H’ SALES Finished goods 3,519,801,645 2,707,085,367 By products 70,288,736 54,605,596 HR Coll/Slitt Sale 33,902,188 34,674,106 3,623,992,569 2,796,365,069 Job work charges received 220,712 211,862 Freight recovered 12,677,935 Inspection fee recovered 617,402 Total 3,637,508,618 2,796,576,931 The relevant portion of the auditor’s report dated 17-10-2020 for the financial year, 2019-20 reads as under: YEAR ENDED YEAR ENDED 31-03-2020 31-03-2019 (Rs.) (Rs.) SCHEDULE ‘H’ SALES Finished goods MS Black Pipes 1,640,321,371 1,823,311,876 Galvanised Iron Pipes 1,099,164,183 1,149,568,350 Steel Tibular Poles 284,743,054 478,904,230 Steel Scafolding 65,582,791 44,146,302 Steel structures 3,890,700 1,927,869 Metal Crash Barriers 24,867,378 21,943,018 3,118,569,477 3,519,801,645 By products 66,112,939 70,288,736 HR Coll/Slitt Sale 37,405,919 33,902,188 3,222,088,335 3,623,992,569 Job work charges received 345,549 220,712 Freight recovered 294,949 12,677,935 Inspection fee recovered 1,504,220 617,402 Total 3,224,233,053 3,637,508,618 [9] From the perusal of the auditor’s reports for the financial years, 2017-18 and 2018-19 and in particular, the relevant portions thereof as reproduced hereinabove, it is clearly seen that the turnovers of the product under consideration are not reflected separately at all. But the Chartered Accountant, in his certificate, has shown the turnovers of the product under consideration for the said years but the basis on which the turnovers for the financial years, 2017-18 and 2018-19 have been shown in the certificate, is not disclosed and in other words, there is no material on record which would clearly demonstrate the separate turnovers of the product under consideration. Moreover, in the auditor’s report for the year, 2019-20, the relevant portion of which is reproduced hereinabove, the turnover of the product under consideration for the financial year, 2018-19 is reflected, even though the auditor’s report for the same financial year, 2018-19 is silent about it. Moreover, in the auditor’s report for the year, 2019-20, the relevant portion of which is reproduced hereinabove, the turnover of the product under consideration for the financial year, 2018-19 is reflected, even though the auditor’s report for the same financial year, 2018-19 is silent about it. The turnovers as shown in the certificate issued by the Chartered Accountant and that of the auditor’s reports as mentioned above, do not tally each other. If that be the case, the correctness of the certificate issued by the Chartered Accountant is doubtful and it was not correctly accepted and relied upon by the authority at its wisdom. The learned counsel appearing for the appellant made an endeavour to contend that since the appellant being a partnership firm, the turnover was not given separately for the product under consideration and therefore, the minimum average turnover could be ascertained by reading all the documents as a whole and in particular, the performance certificates. His contention has no merit and substance for the reason that the performance certificates will have to be submitted as per Appendix-6, while the average turnover certificate will have to be submitted as per Appendix-4. Both the certificates are not one and the same. They are different conditions to be fulfilled by the bidders while submitting their bids. It may further be noted that the documents to be furnished by the bidders must be plain and clear for the reason that they ought to speak for themselves so that the authority could verify the minimum average turnover without any effort being made for it. In fact, the bidding documents are made known to the bidders well in advance and all that the authority will have to do, is to see that the documents are submitted in terms of the bidding documents and the authority cannot be expected to examine the documents furnished by the bidders by interpreting them to understand their meaning. If the documents are not submitted in terms of the bidding documents or for that matter, they are not in proper order, the authority has the right to reject it. This is what has been done by the respondents herein in the present case and there is nothing wrong in it. If the documents are not submitted in terms of the bidding documents or for that matter, they are not in proper order, the authority has the right to reject it. This is what has been done by the respondents herein in the present case and there is nothing wrong in it. In a tender, the submission of bids is an offer and the authority has a right to reject it, provided the bidder has failed to fulfill the terms and conditions of the tender. The only safeguard in a tender process is that the authority being an institution, ought to act fairly and reasonably. It is the appellant who is to be blamed for its own mistake. Having considered the circumstances as aforesaid, the authority has rightly rejected the technical bid of the appellant. [10] The other point which the learned counsel appearing for the appellant has emphasized during the course of hearing, is that the appellant was not given an opportunity to clarify the doubt on the part of the authority, although such an opportunity had been given to the respondent, M/S BST Infratech Limited. It has been vehemently submitted by him that such inaction on the part of the authority is unreasonable and discriminatory being violative of the provisions of Article 14 of the Constitution of India. It is no doubt true that under para 2.1 of Section-II, the authority is empowered with a discretion to seek clarification from the bidder. But it is nowhere provided therein that all the bidders should be asked for clarification. It is for the authority to decide whether a clarification is required to be sought from a bidder or from all the bidders depending upon the circumstances and the requirement. In the present case, the authority appears to have felt that there was no need of seeking a clarification from the appellant, as the appellant was found to be unqualified in the technical bid on the ground that it did not have a minimum average turnover of the product under consideration. Merely because the appellant was not given an opportunity to give a clarification as regards the minimum average turnover, it cannot be said that the inaction on the part of the authority was unfair and unreasonable. Merely because the appellant was not given an opportunity to give a clarification as regards the minimum average turnover, it cannot be said that the inaction on the part of the authority was unfair and unreasonable. Even assuming that the appellant was given the opportunity, it could not have improved or modified the audited financial statements for the years, 2017-18 and 2018-19 for the reason that they had formed part of the records of the Income Tax Department. The facts and circumstances of the writ petition being WP(C) No.974 of 2019 are not exactly the same as that of the present appeals. In other words, the issues involved in both the cases are not exactly the same. But the only observation made by this Court in WP(C) No.974 of 2019 which is relevant for the present appeals, is that the average turnover as furnished by the appellant in that case as per Appendix-4, was found to be of overall turnover and not of product under consideration. In the present case, the basis of the minimum average turnover as shown in the certificate of the Chartered Accountant is not there at all in the audited financial statements for the years, 2017-18 and 2018-19, because of which the authority had no option but to reject the technical bid of the appellant.” [9] As has been observed hereinabove, the bidding documents as prescribed by the respondents in the present case and that of the M/S Nezone Pipes & Structures case are almost identical. SL No.3 of the A.1 Technical Criteria of the Section-III: Evaluation and Qualification Criteria reads as under: 3. Average Construction Turnover: The bidder should submit the audited financial statements for the last 3 (three) financial years from FY 2017-18 to FY 2019-20 to demonstrate the current soundness of the bidders’ financial position showing a minimum average turnover of not less than Rs. 67.34 Crore from execution of water supply and other civil engineering works. Audited Financial Statements for the last three financial years along with Turnover Certificate issued by Chartered Accountant or equivalent of the respective country in the format as mentioned in Appendix-4. On perusal of these criteria and the corresponding criteria as mentioned in the case of M/S Nezone Pipes & Structures case, it is seen that both are almost identical except some minor changes which have been made in that of the present case. On perusal of these criteria and the corresponding criteria as mentioned in the case of M/S Nezone Pipes & Structures case, it is seen that both are almost identical except some minor changes which have been made in that of the present case. The wordings of the criteria are plain and unambiguous and require no interpretation at all. The petitioner was required to submit the audited financial statements for the last 3 (three) financial years from FY 2017-18 to FY 2019-20 to demonstrate its current soundness of the financial position showing a minimum average turnover of not less than Rs.67.34 crore from the execution of water supply and other civil engineering works. These audited financial statements will have to be accompanied by a turnover certificate issued by a Chartered Accountant or equivalent of the respective country in the format as mentioned in Appendix-4. The stand of the respondents is that such a turnover certificate issued by a Chartered Accountant or equivalent of the respective country in the format as mentioned in Appendix-4 was not submitted at all by the petitioner. Denying it, it has been stated by the petitioner that such a turnover certificate had been submitted by it, a copy of which has been placed on record at page 334 of the writ petition. In view of the rival contentions, this Court perused the turnover certificate submitted by the petitioner but it is seen that it is not issued by a Chartered Accountant in the format as mentioned in Appendix-4 but by the petitioner itself which cannot, in other words, be said to have been issued in the manner laid down by the respondents in their bidding documents and in particular, the criteria mentioned above in the tabulation. Therefore, the contention of the learned Advocate General, in this regard, has some merit and substance. The only justification that has been given by the petitioner’s counsel during the course of hearing, is that the Chartered Accountant has given a certificate dated 18-02-2021 which is available at page 335. It has been submitted by him that both the turnover certificates issued by the petitioner itself and by the Chartered Accountant will have to be read together so that the minimum average turnover, of not less than Rs.67.34 crore, of the petitioner from the execution of water supply and other civil engineering works can be easily ascertained by the respondents. It has been submitted by him that both the turnover certificates issued by the petitioner itself and by the Chartered Accountant will have to be read together so that the minimum average turnover, of not less than Rs.67.34 crore, of the petitioner from the execution of water supply and other civil engineering works can be easily ascertained by the respondents. Even if an explanation was required from the side of the petitioner, the respondents could have invoked the provisions as contained in Clause D 2.1 of the bidding documents and could have sought it from the petitioner. The respondents failed to do that and without assigning any reason, the technical bid of the petitioner had been rejected which is unfair and unreasonable being violative of Article 14 of the Constitution of India. [10] The conjoint reading of both the turnover certificates-one, issued by the petitioner itself and two, issued by the Chartered Accountant makes it very clear that neither of them can be said to be in terms of the format as mentioned in Appendix-4. What is required by the respondents in terms of the bidding documents, is that the turnover certificate ought to be issued by a Chartered Accountant or equivalent, based on the audited financial statements of the last three years, in the format as mentioned in Appendix- 4 which is not there at all in the documents submitted by the petitioner. It is the documents which speak for themselves and need no interpretation at all. In a tender, a bid submitted by a bidder is an offer and it is for the authority concerned either to accept it or reject it in accordance with the terms and conditions contained in the bidding documents. The only safeguard available with the bidders is that the authority being an institution, ought to act fairly and reasonably even in matters relating to Government contracts. In other words, if there is any unfair and unreasonable action on the part of the respondents while conducting the tender process, it will be hit by the provisions of Article 14 of the Constitution of India. The law is well settled in this regard and the contention of the learned counsel appearing for the petitioner as regards the law laid down by the Hon’ble Supreme Court appears to be correct to that extent. The law is well settled in this regard and the contention of the learned counsel appearing for the petitioner as regards the law laid down by the Hon’ble Supreme Court appears to be correct to that extent. But since the petitioner has failed to submit the turnover certificate in the format as mentioned in Appendix-4, the question of unfair and unreasonable action on the part of the respondents will not arise at all. The petitioner being a bidder, was required to fulfil the terms and conditions as prescribed in the bidding documents, if it wished to participate in the tender process and after having done that, if the authority conducted the process of tender unfairly and unreasonably, its action would be rendered bad in law. In such circumstances only, the interference of the Court may be called for in matters relating to contract. In the present case, it is the petitioner which has failed to fulfil the terms and conditions laid down in the bidding documents and therefore, the contention that the reason has not been assigned by the respondents for the rejection of its bid, will not at this stage help the petitioner at all. [11] One aspect which the learned Advocate General has emphasized, is the provisions of the Clause D 1.1 which provide that the Information relating to the evaluation of bids and recommendation of contract award shall not be disclosed to bidders or any other persons not officially concerned with the bidding process until contract award is communicated to all bidders. However, it is nowhere specifically mentioned therein that the reasons for rejecting the technical bid of a bidder, cannot be assigned and furnished to it/him. The expression “evaluation of bids and recommendation of contract” is relevant which would prima facie mean and include both the technical and financial bids. A bidder whose technical bid has been rejected by the authority, will not qualify for the financial bid and therefore, there is no reason as to why such a bidder shall not be informed about the reason for the rejection of its technical bid. To do so will not amount to disclosing the information about the evaluation of bids and the recommendation of contract because such a bidder will have no idea about the bids of other bidders except about its own bids. To do so will not amount to disclosing the information about the evaluation of bids and the recommendation of contract because such a bidder will have no idea about the bids of other bidders except about its own bids. The disclosure of such information will, in no way, affect the rights of other bidders who are qualified for the financial bids. On top of that, such a confidential condition cannot prevail upon the provisions of Article 14 of the Constitution of India except in respect of the basic requirement as mentioned in the confidentiality clause. Since the validity and correctness of the provisions of Clause D.1.1 is not the subject matter in issue, it is not appropriate for this Court to give the detailed observations. But this Court, after having perused the confidentiality clause as aforesaid, is of the opinion that once a bid is rejected by the authority at the stage of technical bids, the bidder shall be informed about it with reasons on which his/ its technical bid has been rejected which will demonstrate the transparency in the process of tender. The State Government is duty bound to ensure that a tender process is conducted in a fair and transparent manner so as to avoid attraction of the provisions of Article 14 of the Constitution of India. So far as the present case is concerned, there is no point of directing the respondents to disclose the reason, as the same has been stated by them in the counter affidavit. This Court, after having heard the learned counsels appearing for the parties and perused the materials on record, is of the further opinion that no interference of this Court is called for in the matter, since the petitioner has failed to submit the turnover certificated issued by the Chartered Accountant in the format as mentioned in Appendix-4 which is one of the terms and conditions of the bidding documents. [12] In view of the above and for the reasons stated hereinabove, the instant writ petition is devoid of any merit and is accordingly dismissed with no order as to costs. The interim order passed by this Court in the present case stands vacated accordingly.