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2023 DIGILAW 640 (UTT)

Jagdish Singh Suyal v. State of Uttarakhand

2023-11-23

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

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JUDGMENT : (Manoj Kumar Tiwari, J.) Petitioner is a Civil Contractor. He responded to a notice inviting tender issued by respondent no. 2, on 28.08.2020, for the purpose of reconstruction and development of rural roads under Pradhan Mantri Gram Sadak Yojana. Petitioner’s technical bid was initially found to be responsive. Rival bidders made compliant that petitioner did not meet requirement of condition contained in Clause 4.2 (g) of Standard Bidding Document, therefore, his technical bid is liable to be rejected. The Tender Technical Committee considered the complaint and declared petitioner’s technical bid to be non-responsive. Thus, feeling aggrieved by the decision taken by Tender Technical Committee, on 20.11.2020, petitioner has approached this Court, seeking the following reliefs: “I. Issue an order, direction or writ in the nature of certiorari the Resolution dated 20.11.2020 of the Tender Technical Committee with respect to “Kharlekh- Bhanar Motor Road KM 1 to Naikana- Basora Motor Road (Stage II works) Phase XVII” assigned Package No. UT- 02-70, (Annexure No. 9) whereby the bid of the Petitioner has been disqualified; I. Issue an order, direction or writ in the nature of certiorari quashing the order dated 23.11.2020 opening and accepting the financial bid of the Respondent no. 4 for tender work “Kharlekh- Bhanar Motor Road KM 1 to Naikana- Basora Motor Road (Stage II works) Phase XVII” assigned Package No. UT- 02-70; (Annexure No. 10) II. Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent No. 2 to re-open the financial bid for the tender process for tender work “Kharlekh- Bhanar Motor Road KM 1 to Naikana- Basora Motor Road (Stage II works) Phase XVII” assigned Package No. UT- 02-70 after accepting the technical bid of the petitioner or in alternate issue a fresh tender for the Construction and Maintenance of Kathapuriyachina-Seraghat to Nayalamafi Motor Road Stage - I&II length 5.425;” 2. Petitioner’s technical bid has been declared to be non-responsive on the ground that it does not meet requirement of condition contained in Clause 4.2 (g), which is reproduced below: “evidence of access to line(s) of credit and availability of other financial resources/ facilities certified by banker (the certificate being not more than 3 months old) up to the percentage (defined in the Bid Date Sheet) of the contract price of works, during the implementation of the works.” 3. From the aforesaid condition, it is apparent that the certificate issued by the banker should not be more than 3 months old. The certificate submitted by the petitioner with his technical bid is at page no.29 of the writ petition. The said certificate does not bear any date. Since Clause 4.2 (g) of the Standard Bidding Document provides that the certificate should not be more than 3 months old, therefore, in the absence of date of issuance indicated by the banker in the certificate, the employer cannot ascertain as to whether the certificate is more than 3 months old or not. Thus, the decision taken by Tender Technical Committee on the complaint made by rival bidders cannot be said to be unjust or unreasonable. Law is well settled that, in matters of Government Contract, employer’s decision regarding qualifications and eligibility of a bidder has to be respected and interference would be warranted only when the decision, so taken, is so palpably wrong or unjust, which no reasonable person could have taken. This does not appear to be the case here, as rejection of petitioner’s bid is referable to Clause 4.2 (g) of the Standard Bidding Document. 4. Learned counsel for the petitioner then contended that the complaints made by rival bidders against acceptance of petitioner’s technical bid, were not communicated to him. Thus, according to him, impugned decision has been taken behind the back of the petitioner, without providing him opportunity of hearing. 5. Learned counsel for respondent no.4, however, submits that not only the complaints made by rival bidders were sent to petitioner through e-mail, on 05.11.2020 at 03:20 p.m., but a show cause notice was also issued by respondent no.2 to petitioner, through e-mail. In support of this contention, Mr. Dushyant Mainali, learned counsel has drawn attention of this Court to Annexure No.CA-2 to the counter affidavit filed by respondent no.4. 6. Perusal of the said document indicates that the complaint made by Mr. P.S. Kharayat and Mr. Bharat Bhushan against the petitioner were duly served upon him through e-mail, on 05.11.2020 at 03:20 p.m. 7. Learned counsel for the petitioner then submitted that the physical copy of the complaint and the show cause notice issued by respondent no.2 pursuant thereto, was delivered to petitioner by post, on 19.11.2020; while, the impugned decision was taken on the very next day i.e. 20.11.2020. Learned counsel for the petitioner then submitted that the physical copy of the complaint and the show cause notice issued by respondent no.2 pursuant thereto, was delivered to petitioner by post, on 19.11.2020; while, the impugned decision was taken on the very next day i.e. 20.11.2020. Thus, according to him, petitioner was not given reasonable opportunity of hearing, as he could not submit his response to the show cause notice, within such short time. 8. Learned counsel for the respondents, however, point out that petitioner had submitted his e-mail address through a written communication dated 01.08.2019, with the understanding that all communication between the petitioner and respondent no.2 would be made through e-mail. They further submit that, as per the condition of Standard Bidding Document, bids were to be submitted online only, thus, petitioner cannot now insist upon service of physical copy of show cause notice and the complaint. 9. The submission made by learned counsel for the respondents has substance. Since the entire communication between the bidders and respondent no.2 was to be made electronically, therefore, petitioner cannot insist that show cause notice and the complaints made by rival bidders have to be served upon him physically. Since the show cause notice and complaints were served upon petitioner, on 05.12.2020 and the impugned decision to declare his technical bid as non-responsive was taken only on 20.11.2020, therefore, the contention that sufficient time was not given to petitioner for responding to the show cause notice, cannot be accepted. Thus, there is no scope for interference with the tender process. 10. Accordingly, the writ petition fails and is dismissed. Interim order dated 02.12.2020 is vacated.