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2022 DIGILAW 103 (CHH)

R. D. Construction v. State of Chhattisgarh

2022-02-23

ARUP KUMAR GOSWAMI, N.K.CHANDRAVANSHI

body2022
JUDGMENT : Arup Kumar Goswami, J. Heard Mr. Prateek Sharma, learned counsel for the petitioner. Also heard Mr. Vikram Sharma, learned counsel for the respondent Nos. 1 and 2, Mr. Shashank Thakur, learned counsel for the respondents Nos. 3 to 5 as well as Mr. Sharda Mishra, learned counsel for the respondent No. 6. 2. By this writ petition, the petitioner, which is a partnership firm, has prayed for setting aside (i) the order dated 03.08.2021 (Annexure P/2) whereby the technical bid of the petitioner was held to be non-responsive, (ii) opening of the financial bid on 16.09.2021 as well as (iii) all further proceedings on the basis of opening of the financial bid. Prayer is also made to direct the respondents to open the financial bid of the petitioner declaring him eligible in the technical bid. 3. This Court, by order dated 08.10.2021 had issued an order of status quo as it existed on that date in respect of the subject tender process till the next date of hearing which was fixed on 28.10.2021. The said interim order is subsisting as on date as the same has been extended from time to time. 4. The Department of Biotechnology, Ministry of Science and Technology, Government of India, after obtaining sanction of the President of India, had issued an order dated 05.07.2018 sanctioning establishment of a Biotechnology Park in the State of Chhattisgarh with the object of providing facilities for interface of Research Institute with Industry for better utilization of technology and available resources. The Chhattisgarh Biotech Society Raipur was chosen as the implementing institute and the Indira Gandhi Krishi Vishvavidyalaya, Raipur (for short, the University), respondent No. 3, was entrusted with the task of providing technical support to the proposed Biotech Incubation Center. The Department of Agriculture, Farmers Welfare and Biotechnology Development, Government of Chattisgarh issued an order on 30.06.2020 by which administrative approval of Rs.13,49,84,000/- was sanctioned for construction of a Biotechnology Incubation Center. It was consequent upon grant of such administrative approval and sanction, the University issued a notice inviting tender (for short, NIT), inviting submission of online bids till 20.02.2021. 5. Four firms including the petitioner submitted their bids and on evaluation, the technical bid of all the four firms was rejected, and thereafter, the instant NIT dated 10.03.2021 was issued. It was consequent upon grant of such administrative approval and sanction, the University issued a notice inviting tender (for short, NIT), inviting submission of online bids till 20.02.2021. 5. Four firms including the petitioner submitted their bids and on evaluation, the technical bid of all the four firms was rejected, and thereafter, the instant NIT dated 10.03.2021 was issued. The last date for online submission of the tender and the last date for submitting the same physically was fixed on 20.03.2021 and 22.03.2021, respectively. The technical bid was scheduled to be opened at 4:00 pm on 22.03.2021. 6. The letter dated 03.08.2021, whereby the petitioner was informed that its technical bid was rejected, recited two grounds for such rejection: (i) the petitioner failed to furnish the experience certificate of having successfully completed laboratory designing and laboratory construction of minimum 30,000 sq.ft of lab work as mandated in point No. 2 of the eligibility criteria of the NIT, and (ii) the proforma for integrity pact submitted by the petitioner along with the technical bid was blank. 7. Mr. Prateek Sharma, learned counsel for the petitioner submits that a perusal of the averments made in paragraph 8 of the reply of respondents No. 3 to 5 would go to show that while the technical bid submitted by the respondent No. 6 was found to be in order, the tenders submitted by the other three firms including the petitioner were not found to be technically responsive and yet, vide letter dated 20.07.2021, the petitioner was asked to extend the validity period of the bid till 24.07.2021, failing which it was indicated that the tender of the petitioner will not be considered. It is submitted that when the tenders were already opened and the technical bid of the petitioner was found to be non-responsive, which decision was not communicated immediately but communicated after more than four months by letter dated 03.08.2021, it is not understood why the letter dated 20.07.2021 was issued requesting the petitioner for extension of the validity period of the bid. Though there was no justification for seeking extension of the validity period, without prejudice to the rights and contentions, it had given consent for extension of the validity period by letter dated 22.07.2021. Mr. Though there was no justification for seeking extension of the validity period, without prejudice to the rights and contentions, it had given consent for extension of the validity period by letter dated 22.07.2021. Mr. Sharma submits that the petitioner had expressed apprehension that the University was trying to show undue favour to a party and the tenders of other tenderers might be rejected on flimsy grounds. 8. Drawing attention of the Court to Annexure-P/12 (page No. 206 and 207 of the writ petition), Mr. Sharma submits that the contention of the University that the petitioner failed to furnish the requisite experience certificate is palpably wrong and the Annexure-P/12 documents would demonstrate without any ambiguity that the petitioner had successfully completed laboratory design and laboratory construction of minimum 30,000 sq.ft of laboratory work as required under clause (2) of the ‘eligibility criteria’. Drawing attention to Annexure P/10 (page 191 of the writ petition), which is a proforma for integrity pact, he submits that there is no infirmity in the integrity pact as a signed copy was submitted as was done previously, and based on submission of such integrity pact, the petitioner and other contractors were awarded contracts earlier, without the University ever raising any objection. It is on the above premises, it is submitted that the authorities of the University acted illegally, arbitrarily and discriminatorily in rejecting the technical bid of the petitioner and other contractors to eliminate competition only to subserve the interest of its blue-eyed tenderer. 9. He further submits that while the technical bid of the petitioner was rejected on wholly untenable grounds, the technical bid of the respondent No. 6 was held to be responsive despite there being glaring omissions and commissions which necessarily should have warranted rejection of the technical bid. The term of the Vice-Chancellor of the University was due to expire on 31.10.2021 and to grant undue favours to the respondent No. 6, the technical bid of the respondent No. 6 was held to be responsive and the contract was also awarded on 01.10.2021 in haste. It is submitted that the respondent No. 6 had quoted a sum of Rs.14,36,89,300/- while the estimated cost was fixed at Rs.13,17,00,000/-. The amount quoted by the respondent No. 6 was higher than the amount sanctioned, i.e. Rs.13,49,84,000/-. Therefore, a request was made by the University to the State Government to sanction a further sum of Rs. It is submitted that the respondent No. 6 had quoted a sum of Rs.14,36,89,300/- while the estimated cost was fixed at Rs.13,17,00,000/-. The amount quoted by the respondent No. 6 was higher than the amount sanctioned, i.e. Rs.13,49,84,000/-. Therefore, a request was made by the University to the State Government to sanction a further sum of Rs. 1 Crore. But before any response was received, by way of negotiations, in order to benefit the respondent No. 6, contract was awarded to respondent No. 6 at Rs.13,49,84,000/-. It is submitted that though a plea was taken that prompt action was taken to settle the contract because of the directions issued by the Chief Executive Officer of the Chhattisgarh Biotechnology Promotion Society vide letter dated 25.09.2021, perusal of the said letter would go to show that there was no such direction for early conclusion of the process. 10. It is submitted that the registration certificate submitted by respondent No. 6 is dated 18.07.2018 and the same was issued by the office of Engineer in Chief, PWD as Class ‘A’ contractor indicating the names of the partners including that of Sandeep Patni. However, the respondent No. 6 firm was re-constituted on 21.06.2020 and the Registrar of Firms and Societies was duly intimated that Sandeep Patni was removed from the partnership and Bharat Singh Rajput was added as a partner. But there was no change in the registration certificate issued by the office of the Engineer-in-Chief and in that view of the matter, the tender submitted by the respondent No. 6 is not a valid tender inasmuch as the Engineer-in-Chief, PWD was not informed within a period of 15 days of such reconstitution as required under clauses (5) and (14) of the affidavit at page 176 of the writ petition. It is submitted that undue favour was shown to respondent No. 6 even at the time of receiving tender documents as tender documents were received on 20.03.2021, which was a holiday on account of it being a third Saturday. Drawing attention of the Court to page 91 of the writ petition, Mr. It is submitted that undue favour was shown to respondent No. 6 even at the time of receiving tender documents as tender documents were received on 20.03.2021, which was a holiday on account of it being a third Saturday. Drawing attention of the Court to page 91 of the writ petition, Mr. Sharma contends that if identical documents are submitted online and offline, then only comparative chart of technical parameters in respect of a tenderer was to be prepared and in this context, he submits that the affidavit submitted in the prescribed proforma ‘J’ and ‘M (12)’, submitted online and offline are not similar as both sides of the affidavits were not submitted online. He draws attention to clause 3.8.1 at pages 97 and 98 of the writ petition, which provides that the financial capacity certificate (solvency certificate) shall have to be in the prescribed format, i.e., Annexure ‘H’. He further draws attention to pages 185 and 186 of the writ petition to contend that the solvency certificate submitted by the respondent N. 6 at Annexure-P/8 is not in terms of Annexure ‘H’. Inviting attention to the memorandum of understanding dated 17.03.2021, it is submitted by him that the said document was executed at Ahmedabad and notarised on 18.03.2021 at Surguja, Ambikapur and because of the distance in between the two places, it is apparent that the memorandum of understanding dated 17.03.2021 was notarized in absence of the signatories and as such tender of respondent No.6 was invalid. When the affidavits submitted were dated 16.03.2021, at any rate, subsequent document executed on 17th or 18th March, 2021 could not have been taken into consideration. The integrity pact, Annexure-I, submitted by the respondent No. 6 is signed by only respondent No. 6 and yet notarized without any signature of other parties and therefore, the said document could not have been executed as clause (3) of the ‘bidding process’ required that ink-signed copy of the integrity pact only should be submitted. 11. It is submitted that Annexure ‘M’ of the tender document required the tenderer to enclose, amongst others, Income Tax Return, Balance Sheet, Profit and Loss Account including audit report of Chartered Accountant for the last 5 years, which are pre-qualification documents for contracts for which the estimated cost of work is above Rs. 11. It is submitted that Annexure ‘M’ of the tender document required the tenderer to enclose, amongst others, Income Tax Return, Balance Sheet, Profit and Loss Account including audit report of Chartered Accountant for the last 5 years, which are pre-qualification documents for contracts for which the estimated cost of work is above Rs. 5 Crores, but the respondent No. 6 had furnished documents for only four years and therefore, the tender of the respondent No. 6 should not have been held to be responsive. In support of his submission, Mr. Sharma places reliance on the decision of the Hon’ble Supreme Court in the case of Haffkine Bio-Pharmaceutical Corporation Limited, A Government of Maharashtra Undertaking through Manager v. Nirlac Chemicals, through its Manager & Others, reported in (2018) 12 SCC 790 , with particular reference to paragraph 10. 12. Mr. Shashank Thakur, learned counsel for the respondents No. 3 to 5 submits that though the technical bids were opened on 22.03.2021, owing to Covid-19 pandemic, the tenders could not be evaluated and process could not be completed and therefore, consent was sought for from the tenderers for extending the validity of the bids. The tender committee held its meeting on 24.07.2021 and it was only on that date that the technical bids were considered and evaluated and the bid of the petitioner being found to be invalid, letter dated 03.08.2021 was issued. Opportunity was granted to all the tenderers whose bids were rejected to present their case before the University up to 06.08.2021 and the petitioner had submitted its response. The response was placed before the tender committee and on due consideration, rejection of the technical bid of the petitioner was maintained. 13. It is submitted by Mr. Thakur that the experience certificates submitted by the petitioner do not meet the eligibility criteria. Change of constitution of a firm has no relevance as the change of partnership was duly endorsed by the Registrar of Firms and Societies. It is submitted that the tender of the respondent No. 6 was delivered by the Department of Post on 20.03.2021 and the same was received by daily wage employees who are present even on holidays and therefore, it is not understood what is sought to be contended by the petitioner that the University had sought to favour the respondent No. 6 by receiving the documents on 20.03.2021. 14. 14. The allegation made in respect of the affidavit is denied. It is submitted that though a format is prescribed for producing solvency certificate, when the core aspect relating to the solvency is indicated in the certificate, the same is accepted. Even the solvency certificate submitted by the petitioner is not as per Form ‘H’. A mountain of a mole hill is sought to be made with regard to execution of the agreement on 17.03.2021 which was notarized on 18.03.2021 and the petitioner has resorted to surmises and conjectures for the purpose of this case for illegal gain and wrongful bargain. It is submitted that there is no embargo to enter into negotiations with the successful tenderer for getting the best deal and as a result of the negotiations, there was reduction of rate to the tune of Rs.41,23,770/- in civil works and Rs.45,80,749/- in non-SOR work. He, however, submits that the respondent No.6 had submitted Income Tax Return for four years. He had relied on a decision of the Hon'ble Supreme Court in Bakshi Security and Personnel Services Private Limited v. Devkishan Computed Private Limited and Others, reported in (2016) 8 SCC 446 . 15. Mr. Sharad Mishra, learned counsel for the respondent No.6, while adopting the submission of Mr. Shashank Thakur, learned counsel appearing for respondent Nos. 3 to 5, submits that respondent No.6 had initiated the execution of work by purchasing materials, equipments, etc., and therefore, no interference is called for with regard to the work order issued in favour of the respondent No.6. He has submitted that the allegations made with regard to the re-constitution of the firm is without any basis as the firm has been duly re-constituted and the said fact was duly informed to the University. The allegation with regard to undue favour is also totally baseless and the respondent No.6 has been awarded the work, as the tender submitted by the respondent No.6 was a valid tender in all respects. While submitting that the respondent No.6 had submitted Income Tax Return only for four years, he contends on the basis of the abstract terms and conditions of the tender as well as detailed terms and conditions of the tender, that Income Tax Return certificate of three years out of any last four financial years, is the requirement. While submitting that the respondent No.6 had submitted Income Tax Return only for four years, he contends on the basis of the abstract terms and conditions of the tender as well as detailed terms and conditions of the tender, that Income Tax Return certificate of three years out of any last four financial years, is the requirement. He has placed reliance in precedents in Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Another, reported in (2016) 16 SCC 818 , and Montecarlo Limited v. National Thermal Power Corporation Limited, reported in (2016) 15 SCC 272 . 16. Mr. Vikram Sharma, learned counsel for the respondent Nos. 1 and 2, submits that the respondent Nos. 1 and 2 are only formal parties and have no role to play in regard to a dispute relating to the University, which is an independent autonomous body. 17. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. 18. Before proceeding further, it will be appropriate to take note of the decisions cited by the learned counsel for the parties. 19. In Haffkine Bio-Pharmaceutical Corporation Limited (supra), the Hon'ble Supreme Court observed that when the technical bid is opened, it is the right of the rival bidders to see whether the documents attached by a bidder meet technical requirements or not and that the same can only be done if the documents attached to bid are shown to the other side. 20. In Afcons Infrastructure Limited (supra), the Hon'ble Supreme Court had observed that interference with the decision-making process of the employer or owner of the project in accepting or rejecting of the bid of a tenderer should not be interfered with unless the decision-making process is mala fide or is intended to favour some one or unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. It was further observed that the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. 21. It was further observed that the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. 21. In Montecarlo Limited (supra), the Hon'ble Supreme Court observed that exercise of power of judicial review would be called for in the matter of discrimination of state largess if the approach is arbitrary or mala fide or procedure adopted is meant to favour one and that technical evaluation or comparison by the Court would be impermissible. 22. In Bakshi Security and Personnel Services (supra), though the authority did not disclose the minimum wage figure, which was very relevant, even in the second round of litigation, having regard to the fact that there was no mala fide involved and the calculation of minimum wage, otherwise, was justified, the Hon'ble Supreme Court, instead of directing restarting of the tendering process, allowed the authority to proceed with finalising the tender with the appellant. 23. Though the technical bid was opened on 22.03.2021, materials on record go to show that due to lock-down imposed on account of Covid-19 pandemic, evaluation of technical bid was conducted by the tender committee on 24.07.2021 and as the bid validity period was to expire, consent was sought from the parties to extend the validity period by another 120 days. It is not the case of the petitioner that the tenderers were debarred from being present at the time of opening of the technical bid. Therefore, the contention of Mr. Sharma that result of evaluation of technical bid was communicated after more than four months with oblique motive is found to be not substantiated. 24. Clause 2 of the eligibility criteria for the work in question reads as follows : “The contractor should have experience of having successfully completed Laboratory design and laboratory construction of minimum of 30000 square feet of Lab work, covering either one or all of the works mentioned in the BOQ.” 25. Certificates submitted by the petitioner to satisfy the aforesaid requirement are extracted hereunder : “LabGuard WORK COMPLETION CERTIFICATES DETAILS OF ORDERS FOR SIMILAR SUPPLY SUCCESSFULLY COMPLETED DURING THE LAST 5 YEARS” Sl. No. Name of Client with full address, telephone numbers and nature of work Order details such as quantity etc. Value 1. Indian Institute of Technology – Kharagpur. Contact Person : Prof. K. Biradha Tel : 03222-282216 Developed lab of approximate 40000 Sq.ft. No. Name of Client with full address, telephone numbers and nature of work Order details such as quantity etc. Value 1. Indian Institute of Technology – Kharagpur. Contact Person : Prof. K. Biradha Tel : 03222-282216 Developed lab of approximate 40000 Sq.ft. Rs.6,98,31,561/- Handover Certificate to IIT – Kharagpur is enclosed. Yours faithfully, Sd/- For M/s. LabGaurd India Pvt. Ltd. 03.01.2000 26. The abstract of certificate of handover, reads as follows : “Lab-Guard CERTIFICATE OF HANDOVER PROJECT NO. 3359 CLIENT : INDIAN INSTITUTE OF TECHNOLOGY, KHARAGPUR DEPARTMENT OF/COST CENTRER (CY) CHEMISTRY SCOPE OF WORK : Supply and installation of Laboratory furniture and fume hood in Chemistry Laboratory at IIT Kharagpur On trunkey Basis. PURCHASE ORDER No. PO/ORD/2018-2019/IIT/2641/1 DATE: 26/12/2019 TOTAL PURCHASE ORDER VALUE OF WORK 69,831,561.00 ACTUAL EXECUTED VALUE OF WORK AGAINST INVOICE NO. 034/19-20 (ANNEXURE ATTACHED FOR REF.) 37,422,343.00 DECLARATION ON EXECUTION OF WORKS This is to certify that all above mentioned scope of work as per the PO has been carried out and completed satisfactorily as per stipulated period in phase wise. Since the above project work covers laboratory area as mentioned in attached invoice (034/19-20) and annexure. The above project has been inspected by the signatories on this certificate and is taken over on behalf of the client on 08.08.2019. Signature Ineligible Signature Ineligible Name foHkkxk/;{k@ Head jlk;u'kkL= foHkkx Department of Chemistry Name Ineligible Designation Hkk-izkS-la- [kM+xiqj@ IIT Kharagpur Designation Eng. Projects & BD. FOR- (CUSTOMER NAME) FOR-LABGUARD INDIA PVT LTD. Email id for future correspondences. Contact No. :- 27. A perusal of the above would go show that contract was awarded by the IIT, Kharagpur, but the document is that of one Labguard. It is not understood what is the connection of the petitioner, namely, M/s. R.D. Construction, with Labguard. Be that as it may. Though in the work completion certificate at page No. 206, it is stated that lab of approximately 40,000 sq.ft. was developed, the same is by way of self certification of Labguard. No documentary evidence was submitted demonstrating that any work order of 30,000 sq.ft. or above was issued to or completed by the petitioner. The work completion certificate at page No. 206 (Annexure-P/12) cannot be construed to be a work completion certificate issued by the authority by which contract was awarded. Similarly, the certificate of handover is under the letter head of Labguard. or above was issued to or completed by the petitioner. The work completion certificate at page No. 206 (Annexure-P/12) cannot be construed to be a work completion certificate issued by the authority by which contract was awarded. Similarly, the certificate of handover is under the letter head of Labguard. Total purchase value of work was shown as Rs.69,831,561.00, whereas actual executed value of work against Invoice No.: 034/19-20 was Rs.37,422,343.00. The attached Invoice (034/19-20), where laboratory area is stated to have been mentioned or the purchase order, had not been submitted. 28. In view of the above, the rejection of the technical bid of the petitioner on the ground that it had failed to furnish the experience certificate of having successfully completed laboratory designing and laboratory construction of 30,000 sq.ft. cannot be said to be perverse, arbitrary or irrational and therefore, such decision cannot be faulted with. 29. Clause 1.3 of the detailed terms and conditions under the heading Instructions for bidding and tender opening, provides that ink signed copy of integrity pact should be placed in Envelope-B. The proforma of the integrity pact is attached as Annexure-I. 30. So far as integrity pact is concerned, the same was submitted blank in clause 1.1 under the heading ‘General’ as well as under clause 14 of the integrity pact. The space for signatures of witnesses were also blank. 31. Clause 1.1 basically is a recital referring to when the agreement is made and by and in between whom. 32. Clause 14 of the integrity pact reads as follows : “14. The parties hereby sign this Integrity Pact at ............................. on ...................................” The “buyer” as is referred to in the integrity pact could not have signed when the “bidder” submitted the integrity pact. At best, the petitioner could have filled up the name of the bidder. When the NIT was issued by the University, it is not understood why the buyer is referred to as the Government of Chhattisgarh. 33. For the purpose of present case, it is not necessary for us to go into the question as to whether the technical bid could have been rejected because of blank submission of integrity pact as we have already held that the technical bid of the petitioner was rightly rejected for failure to furnish experience certificate and we keep the point open to be considered in a more appropriate case. 34. 34. Having held that technical bid of the petitioner was rightly rejected, we will now consider as to whether the respondent No.6 fulfilled the eligibility criteria. 35. We find no merit in the contention of the petitioner that technical bid of respondent No.6 was liable to be rejected because re-constitution had not been informed to the Engineer-in-Chief within a period of 15 days. The change of constitution of firm, which is a legal entity, was duly attested by the Registrar of Firm and Societies and was duly informed to the University and therefore, even if the change of re-constitution was not informed to the Engineer-in-Chief, the same would not have any bearing in the tendering process. The allegation of showing undue favour to respondent No.6 even at the time of acceptance of submission of tender physically as tender was received on a holiday, merits no discussion. Suffice it is to say that the delivery was effected by the postal department as the documents were sent by speed post. That apart, the last date of submission of tender in physical mode was 22.03.2021 and therefore, receipt of tender in physical mode by the daily wage employees of the University two days' before the last date of submission of tender in physical mode does not in any manner indicate that any favouritism was shown to the respondent No.6. 36. The contention advanced with regard to proforma 'J' and proforma 'M' (12) submitted online and offline being not similar is also without any substance. Solvency certificate submitted by the respondent No.6 and that also by the petitioner is not strictly in terms of the format prescribed. What cannot be lost sight of the fact is that the Banks, which issue solvency certificates, are independent agencies and have their own format of issuing such certificate. The object behind the solvency certificate is to ascertain the financial capability of the tenderer and the purpose for seeking solvency certificate is met when requisite information regarding solvency of the person or the entity concerned is properly reflected in such certificate. 37. The argument advanced with regard to execution of the agreement on 07.03.2021 and notarized on 18.03.2021 are allegations without any substance, and as rightly submitted by Mr. Mishra, are result of surmises and conjunctures. Same goes with regard to the contention advanced with regard to the affidavit vis-a-vis the memorandum of understanding. 37. The argument advanced with regard to execution of the agreement on 07.03.2021 and notarized on 18.03.2021 are allegations without any substance, and as rightly submitted by Mr. Mishra, are result of surmises and conjunctures. Same goes with regard to the contention advanced with regard to the affidavit vis-a-vis the memorandum of understanding. The affidavit, which was sworn on 16.03.2021, essentially, is to the effect that all documents and information furnished are true and correct in all respects. The memorandum of understanding is dated 17.03.2021/18.03.2021, which was also submitted by the respondent No.6 as part of tender documents. The affidavit will certainly include and cover the memorandum of understanding though the same is subsequent to the date of swearing of the affidavit. 38. However, the submission of Mr. Sharma that the respondent No.6 did not submit Income Tax Return for five years, will require a close examination. The plea that respondent No.6 had not submitted Income Tax Return for five years was not taken in the writ petition, but was specifically taken in the rejoinder-affidavit filed on 15.11.2021, copy of which was received on behalf of respondent Nos. 3 to 5 and respondent No. 6 on that very date. During the interregnum period till the hearing of the writ petition such an assertion was not controverted and rather, during the course of submission, both Mr. Thakur and Mr. Mishra had admitted that the respondent No.6 had submitted Income Tax Return for four years. 39. The abstract terms and conditions of the tender at page 89 and detailed terms and conditions at page 92 of the writ petition required that Envelope-B should contain, amongst others, Income Tax Return certificate of three years out of any last four financial years. 40. Annexure - 'M' is in respect of pre-qualification document for estimated cost of work of above 5 crore. Clause 2(a)(i), under ‘Qualification Criteria’, reads as follows : “2(a) Each tenderer must enclose (i) Copy of certificate issued by competent authority of the department in respect of Income Tax return, Balance Sheet, Profit & Loss Account including audit report of chartered accountant for the last 5 years.” 41. Admittedly, estimated cost of work of the subject NIT is Rs.13,17,00,000/- and thus, the aforesaid qualification criteria would come into play. Why the respondent No.6 had submitted Income Tax Return for four years is not known. The respondent Nos. Admittedly, estimated cost of work of the subject NIT is Rs.13,17,00,000/- and thus, the aforesaid qualification criteria would come into play. Why the respondent No.6 had submitted Income Tax Return for four years is not known. The respondent Nos. 3 to 5 as well as the tender committee overlooked the aforesaid requirement and in absence of Income Tax Return for five years, it could not have been concluded that the tender of the respondent No.6 is valid in all respects. In substance, the tender of the respondent No.6 is also an invalid one and therefore, work order could not have been awarded to the respondent No.6. This Court will not hazard a guess as to whether the requirement of submission of Income Tax Return for five years, a material clause regarding eligibility criteria, was inadvertently overlooked or such a requirement was ignored in order to grant the contract in favour of respondent No.6. 42. In view of the above discussions, this writ petition is partly allowed by interfering with the work order issued in favour of the respondent No.6 and by providing that the University may initiate fresh NIT, in accordance with law. No cost.