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2022 DIGILAW 125 (UTT)

Dalip Singh Adhikari v. State of Uttarakhand

2022-06-06

R.C.KHULBE, S.K.MISHRA

body2022
JUDGMENT : SRI S.K. MISHRA, J. In this intra-court appeal, the appellant-writ petitioner being the unsuccessful bidder has assailed the order dated 18.11.2020, passed by the learned Single Judge, in Writ Petition (M/S) No.674 of 2020. 2. Briefly, the facts of the case are as follows:- On 04.12.2019, the State of Uttarakhand through Department of Rural Development invited tenders. On 24.01.2020, the technical bids were evaluated and the bid of the appellant, and that of M/s L.D. Binwal, respondent No.4 herein, and M/s Panchghati Constructions were declared responsive. On 06/07.02.2020, a complaint was lodged by M/s L.D. Binwal, i.e. the successful bidder, which was forwarded to the appellant, and a reply of the same was sent by the appellant on 07.02.2020. Thereafter, on 03.03.2020, Technical Evaluation Committee, which has already declared the technical bid of the appellant responsive on 24.01.2020, declared the technical bid of the appellant as non-responsive. On 05/06.03.2020, the decision of the Technical Evaluation Committee was uploaded by the respondents. Thereafter, the writ petition was filed, wherein the petitioner-appellant before this Court sought for a writ of certiorari quashing the order dated 03.03.2020 passed by the Technical Evaluation Committee, accepting the complaint made by a competing bidder, without assigning any reason, and declaring the already responsive technical bid of the appellant as non-responsive. The appellant-petitioner further prayed for a writ of mandamus declaring M/s L.D. Binwal’s technical bid as non-responsive because of the fact that it has not disclosed, in his bid document about the pendency of the writ petition against the same department. 3. The learned Single Judge heard the parties, and came to the conclusion that the decision of the Technical Evaluation Committee, in treating the appellant’s technical bid as non-responsive, is not illegal. However, it is apparent from the record that there is no finding as to the plea taken by the appellant-petitioner before the learned Single Judge that the successful bidder, i.e. M/s L.D. Binwal, is also non-responsive because of the non-disclosure of the pendency of cases in this Court. 4. At this stage, it is not disputed that, though, this issue was raised, pointedly, by the appellant-petitioner, no finding has been given by the learned Single Judge. 4. At this stage, it is not disputed that, though, this issue was raised, pointedly, by the appellant-petitioner, no finding has been given by the learned Single Judge. It is also not disputed by any of the parties that, in fact, the Writ Petition (M/S) No.975 of 2019 was pending before this Court at the time of submission of bid documents, but as per clause 1.9, the private contesting respondent has not mentioned about such pendency of the writ petition before this Court. It is also not disputed that after receiving the objections, and before deciding the objection, the writ petition was withdrawn by the private respondent. 5. Mr. Shobhit Saharia, the learned counsel for the appellant-petitioner, would argue that he will not press the question of declaring the appellant’s technical bid as non-responsive, but he would argue that the acceptance of technical bid of the respondent No.4, M/s L.D. Binwal was not only improper, but illegal in view of the specific finding given in a combined judgment passed by the learned Single Judge in Writ Petition (M/S) No.3044 of 2018, “M/s Super Construction Associates vs. State of Uttarakhand & others (being the leading case)”, and other connected writ petitions, decided on 10.04.2019. 6. In the said judgment, the learned Single Judge, at Paragraph No.12, has held that the Court has no doubt that the petitioner had concealed a material fact while submitting his bidding documents. It was absolutely mandatory upon the petitioner to have furnished the information about the litigation history, particularly when this litigation was regarding the contract with the same department. The learned Single Judge further held that the petitioner has, admittedly, not furnished this information. Although, that writ petition was subsequently withdrawn by the petitioner, but it was withdrawn after the documents were submitted by the petitioner in the present cases. Therefore, it would be an afterthought, and the fact would remain that the petitioner has not submitted correct information, and therefore, as per the terms of Standard Bidding Document itself, the petitioner’s bid stood non-responsive. Thus, the claim of the petitioner, in that case, was dismissed by the learned Single Judge. The matter was carried in Special Appeal before this court in Special Appeal No.499 of 2019 “M/s Super Construction Associates vs. State of Uttarakhand & others (being the leading case)”, and connected matters, which was disposed of by a common judgment on 29.05.2019. 7. Thus, the claim of the petitioner, in that case, was dismissed by the learned Single Judge. The matter was carried in Special Appeal before this court in Special Appeal No.499 of 2019 “M/s Super Construction Associates vs. State of Uttarakhand & others (being the leading case)”, and connected matters, which was disposed of by a common judgment on 29.05.2019. 7. The Division Bench of this Court dealing with the question has decided that the opinion of the learned Single Judge is correct. We consider it appropriate to quote the exact words used by the Division Bench while disposing of the special appeal, which are as follows:- “31. In the order under appeal, the learned Single Judge has opined that the appellant-writ petitioner had concealed material facts while submitting their bid documents, and has upheld the action of the respondent- Department in disqualifying the appellant-writ petitioner at the technical evaluation stage. In Municipal Corporation, Ujjain and another vs. BVG India Limited and others: (2018) 5 SCC 462 , the tenderers were required to disclose the show-cause notices issued against them in the column specified in the bid document. Respondent no. 1 had left the said column blank, though show-cause notices had been issued against them (in the present case, “current litigation” in which the appellant-writ petitioner was involved in the past five years). It is in this context that the Supreme Court observed:- “…It was clearly stated in the NIT that the tenderer was required to reveal the show-cause notices against it. Despite the specific column pertaining to the same in the bid document, Respondent No. 1 had left the said column blank. Once there is a specific Clause requiring the mentioning of the show-cause notices for the breach of contract, it was incumbent upon the tenderer to provide accurate information. As Respondent No. 1 has not done so, and has suppressed vital information, Respondent No. 2 has rightly allotted it 5 marks for the same...” (emphasis supplied). 32. Once there is a specific Clause requiring the mentioning of the show-cause notices for the breach of contract, it was incumbent upon the tenderer to provide accurate information. As Respondent No. 1 has not done so, and has suppressed vital information, Respondent No. 2 has rightly allotted it 5 marks for the same...” (emphasis supplied). 32. Since the appellants-writ petitioners’ bids were rejected at the technical evaluation stage in terms of Clause 4.7(i) of Section 2 of the SBD, for having suppressed vital information in the table below Clause 1.9 of Section 3, that Writ Petition (M/S) No. 3006 of 2007 was pending on the file of this Court, it is unnecessary for us to examine the meaning of the words “legislative history” in clause 4.7(ii) of Section 2 of the SBD. While it is no doubt true that the notes, relating to the form of qualification information in Section 3, stipulate that the information furnished under Clause 1.9 would be used for the purpose of post qualification, and the appellants-writ petitioners’ bids were rejected at the technical evaluation stage itself, such rejection was in terms of Clause 4.7(i) of Section 2 of the SBD which stipulates that, even if bidders meet the qualifying criteria, they would be subject to disqualification if they have made misleading or false representation in the forms, statements etc. 33. As held by the Supreme Court in Municipal Corporation, Ujjain and another vs. BVG India Limited and others: (2018) 5 SCC 462 , by not filling up the table under column 1.9, which required details of the current litigation to be specified, the appellants-writ petitioners’ have suppressed vital information regarding their having instituted Writ Petition (M/S) No. 3006 of 2017 which was still pending on the file of this Court when the bid documents were submitted by them. This, in terms of Clause 4.7(i), would amount to a misleading or a false representation in the forms and statements; and the respondents were, therefore, entitled to reject the bids of the appellants-writ petitioners even at the technical evaluation stage. Even otherwise, since the appellants-writ petitioners’ bids were rejected for not disclosing vital information in the form, it hardly matters whether the bid was rejected at the technical evaluation stage or later. Even otherwise, since the appellants-writ petitioners’ bids were rejected for not disclosing vital information in the form, it hardly matters whether the bid was rejected at the technical evaluation stage or later. Withdrawal of the Writ Petition before the technical evaluation date, but after the bids were submitted by them, would not absolve the appellants-writ petitioners’ of their obligation to furnish this vital information in their bid application forms. 8. The exact issue is at hand. The private respondent was declared responsive, even after the respondent No.4 has not filled up clause 1.9 of the affidavit, and it has not revealed that the writ petition is pending before this Court. Therefore, the findings recorded by the learned Single Judge, affirmed by the Division Bench of this Court, are squarely applicable to this case also. 9. Mr. Sanjay Bhatt, the learned counsel for the respondent No.4, would argue that facts of the reported case, and the present case are distinguishable in the sense that in the cited cases, the petitioner’s bid was held non-responsive because of the suppression of the material facts, i.e. not providing the information in clause 1.9 of the bidding document, and, therefore, he would argue that since the private respondent’s technical bid was accepted as responsive, the ratio decided by the learned Single Judge, affirmed by the Division Bench would not apply to the present case. 10. We are of the opinion that such argument is not appreciable in the sense that precedents are regarding law, and the ratio decided by the learned Single Judge which has been affirmed by the Division Bench in a well-discussed, reasoned and elaborate judgment, where in the categorical terms it has been mentioned that if the bidder do not fulfill clause 1.9 by giving relevant information, then his bid shall be non-responsive. Whether, he is petitioner whose bid was declared as non-responsive, or the respondent whose bid was declared as responsive, does not matter. The authorities have also not given any substantial reason regarding declaring the technical bid of the private respondent, i.e. M/s L.D. Binwal, as responsive. 11. We are of the opinion that the technical bides of all the three bidders have become non-responsive. So, it shall be appropriate on the part of the State of Uttarakhand through Department of Rural Development to re-issue tender notices for the aforesaid work. 12. With such observations, the special appeal is allowed. 11. We are of the opinion that the technical bides of all the three bidders have become non-responsive. So, it shall be appropriate on the part of the State of Uttarakhand through Department of Rural Development to re-issue tender notices for the aforesaid work. 12. With such observations, the special appeal is allowed. The order dated 18.11.2020, passed by the learned Single Judge in Writ Petition (M/S) No.674 of 2020, is hereby, set-side. 13. Pending application, if any, also stands disposed of. 14. Urgent certified copy of this order be issued to the learned counsel for the parties, as per Rules.