Gujarat High Court
Gujarat Construction Company vs Gujarat Water Supply And Sewerage Board on 2 July, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19025 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT CONSTRUCTION COMPANY
Versus
GUJARAT WATER SUPPLY AND SEWERAGE BOARD
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Appearance:
MR MANISH R.BHATT, SENIOR ADVOCATE assisted by MR MUNJAAL M
BHATT(8283) for the Petitioner(s) No. 1 MS SHAILEE S JOSHI(11582) for
the Petitioner(s) No. 1
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 02/07/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE) Page 1 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined
1. RULE. Learned Advocate Mr.Anuj Trivedi waives service of Rule on behalf of the respondent.
2. This petition under Article 226 of the Constitution of India is filed for issuance of a writ for setting aside communication dated 14.08.2023 and another communication dated 16.09.2023, by which the petitioner was held disqualified and his bid security in the tender proceeding was ordered to be forfeited and the petitioner was blacklisted (debarred from participating). 2.1 It is a case where the petitioner was successful bidder in the tender proceedings issued by the respondent-Gujarat Water Supply and Sewerage Board ("the Board" for short), which is Government of Gujarat undertaking for "Design & Construction of Various Sizes RCC Sumps & RCC ESR, providing, supplying, lowering laying and jointing of DI & PVC pipeline for Rising main / Gravity distribution pipeline network including providing, supplying, erecting and testing Pumping Machineries at Main HW & Sub HW & Village Level Pumping Stations, RCC Road, Staff Quarter, Compound Wall, Electrification Work and other head work development works at Main HW and Sub HW and Operation and Maintenance of all type civil and mechanical structure, machineries and pipeline network for 10 years for A2 Augmentation Regional Water Supply Scheme based on Dholka Branch Canal: Part-I (Telav Group): Package-I, Taluka: Bavla and Sanand: District: Page 2 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024
NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined Ahmedabad". The petitioner, being fully qualified, was eligible for being awarded the work order. However, the respondent-Board arrived at a conclusion that the petitioner has misled the Board by stating incorrect facts in awarding the contract to the petitioner and hence, the petitioner was issued with the show cause notice and thereafter, a decision was taken for disqualifying as well as forfeiting the earnest money deposit and blacklisting the petitioner.
3. Learned Senior Advocate for the petitioner has argued that the procedure undertaken to take a decision against the petitioner is not in accordance with the terms and conditions of tender document, particularly conclusion arrived at by the respondent-Board that the petitioner has played fraud and submitted false document along with the bid. 3.1 According to learned Senior Advocate for the petitioner, the document in question is a certificate in a prescribed form-3A exhibiting the work experience of the petitioner in the nature of work for which the tender was floated. 3.2 It is submitted that the petitioner had submitted experience certificate issued by appropriate authority which was authorised to issue such certificate in view of successful completion of contract with the certificate issuing authority. It was upon verification undertaken by the respondent-Board that the Page 3 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined certificate issuing authority had given certificate which was issued to the joint venture, of which the petitioner was one of the participating constituent companies. Therefore, according to the respondent-Board, there was variation in the certificate produced by the petitioner along with the bid and the certificate which was found by the respondent-Board upon verification. Treating this document to be false and fraudulent, the impugned action is taken against the petitioner. It is argued that the certificate which was given by the petitioner with the bid was certified to be genuine by the certificate issuing authority and therefore, by no stretch of imagination, it can be said that the document placed by the petitioner with the bid was false document. 3.3 Learned Senior Advocate for the petitioner has referred to communication dated 09.08.2023, which is an order to encash bank guarantee and thereafter, issued notice dated 23.08.2023 calling for explanation on the ground that by placing experience certificate-3A, the petitioner has misled. According to learned Senior Advocate for the petitioner, show cause notice was only on the cause of action of the petitioner having misled the respondent- Board in issuing contract and therefore, notice was required to be restricted only to the issue of being misled. However, there is no mention of any specific act which would amount to producing a document which false and fraudulent. It is submitted that as per Page 4 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined the terms of contract, only action that can be taken against the petitioner was to disqualify the petitioner from bid and therefore, attention was drawn to clause-14 of para-1.1 of the bid document. 3.4 It is the case of the petitioner that in absence of any specific instance regarding production of false and fraudulent document and the clear description of the proposed action by invoking relevant clauses of the bid document, the respondent- Board has violated the principles of natural justice in not specifying firstly the breach of any clause of the contract by false document or fraudulent means and secondly not specifying the action contemplated by invoking relevant clauses. He has therefore relied upon decision of the Apex Court in case of UMC Technologies Private Limited Vs. Food Corporation of India & Anr., reported in (2021) 2 SCC, 551 to substantiate his argument that blacklisting of a contractor is drastic order and therefore, show cause notice must constitute valid basis and spell out clearly in the contents of the notice the intention of the notice issuing authority. In absence of such requirement, it cannot be said that the requirement of principles of natural justice is fulfilled. 3.5 Learned Senior Advocate for the petitioner lastly argued that the petitioner is credible and certified contractor and is working with the respondent-Board and one another Government company for last 20 years. And therefore, even otherwise, the Page 5 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined petitioner was eligible to undertake the work contract.
4. As against this, learned Advocate for the respondent- Board submitted that the work experience was the most relevant consideration for considering bidder as eligible and qualified and to assess the eligibility and qualification, work experience certificate with necessary authentication was required to be made part of the tender bid. It is in this process that the petitioner had attached the work experience certificate in a prescribed form-3A along with his tender bid. This work experience certificate was cross-verified by the respondent-Board in due course of its functioning and in response, the author of the work experience certificate-GUDC intimated the respondent-Board by letter dated 28.07.2023 that the work mentioned in the work experience certificate-3A was in fact carried out by joint venture, of which the petitioner is one of the constituents. Therefore, learned Advocate for the respondent- Board argued that the petitioner does not fulfill the required work experience to have his tender bid qualified. 4.1 It is further submitted that the work experience certificate-3A produced by the petitioner indicated that the work mentioned in certificate-3A was entirely carried out by the petitioner whereas as a matter of fact, the said work was carried out under joint venture, of which the petitioner was partner of 51% and therefore, even for eligibility insofar as financial aspect of the Page 6 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined work order is concerned, the petitioner does not fulfill requisite criteria. It is therefore submitted that the attempt on the part of the petitioner to project himself as a sole contractor who has completed the work as per the work experience certificate-3A, was attempt to place on record along with the tender bid, a false certificate which was for fraudulently purpose to project himself as fulfilling the eligibility criteria of work experience. 4.2 It is submitted that as per the verification carried out by GUDC, the joint venture of the petitioner was with another company, viz. NCC Infraspace Pvt. Ltd., which was partner in the joint venture to the extent of 49%. Therefore, the respondent- Board has only acted in terms of the tender document, which specifically provides for where a false certificate is issued and fraudulent means are adopted, consequences would be for disqualification for a period of 3 years and forfeiture of EMD. He has therefore, drawn attention of this Court to the relevant clauses in the tender document falling under the heading of "Special Attention" Clause-1.1 (xiii), (xix), 21-Bid Security, Clause-21.6, 21.7, 41-Corrupt or Fraudulent Practices-41.1(a)(c) and clause-4.0 of minimum qualified criteria, which produces for using of the same name and style for the purpose of demonstrating the work experience.
4.3 Learned Advocate for the respondent-Board has Page 7 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined thereafter drawn attention of this Court to the bid submitted by the petitioner, more particularly the affidavit submitted by the petitioner under form-18 of the tender document, wherein, on affidavit, representative of the petitioner has undertaken that if any particular submitted by the petitioner is found to be incorrect, incomplete or misleading in any manner then respondent-Board is having full authority to cancel the tender and shall also be liable to consequences and therefore, as per the tender condition itself, the petitioner is well aware of the necessary consequences. 4.4 It is therefore submitted that as the petitioner submitted false document along with the tender bid, the only option available to the respondent-Board is to act in accordance with the terms of tender document, particularly under clauses-21.6 and 21.7. It is in this regard that the petitioner was issued a show cause notice and given an opportunity of hearing and only after the petitioner had submitted his detailed reply, that the impugned action has been taken and therefore, there is no question of any procedural lapse in arriving at a decision which is challenged here. 4.5 Learned Advocate for the respondent-Board placed reliance and emphasized the dictionary meaning of words "false" and "fraudulent" by drawing attention of this Court to the meanings described in Black's Law Dictionary and Oxford Dictionary & Thesaurus and submitted that the act alleged against Page 8 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined the petitioner would clearly fall within the definition of false and fraudulent.
4.6 Learned Advocate for the respondent-Board thereafter relied upon decisions of the Apex Court in cases of Patel Engineering Limited Vs. Union of India & Anr., reported in (2012) 11 SCC, 257, referring to para-25 and Jagdish Mandal Vs. State of Orissa & Ors., reported in (2007) 14 SCC, 517, to submit that the scope of judicial review of the decision taken in the tender proceedings is quite limited. Reliance is also placed on the decision of the Apex Court in case of National High Speed Rail Corporation Limited Vs. Montecarlo Limited & Anr., reported in (2022) 6 SCC, 401, to submit that the power of judicial review in contract matter is circumscribed to the extent of the process adopted in the decision making and whether the public interest is affected and if answer in both is in negative then no interference under Article 226 is called for.
5. In rejoinder, learned Senior Advocate for the petitioner has drawn attention of this Court to the detailed reply which the petitioner had given to the show cause notice and argued that the decision making authority ought to have take into consideration that the petitioner entirely was eligible to enter in the contract considering the work experience of the petitioner with the respondent-Board itself. He has indicated several contracts which Page 9 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined the petitioner had undertaken with the respondent-Board of the same magnitude and therefore, according to Senior Advocate for the petitioner, there was no reason for the petitioner to mis- represent his case by submitting so called work experience certificate.
5.1 It is submitted that the certificate placed on record cannot be termed to be false certificate because the petitioner has produced on record communication from the author of such certificate that the certificate placed along with the tender bid was genuine certificate issued by the office and under the signature of highest officer and therefore, on both counts of fraud document or for fraudulent means, the petitioner cannot be punished.
6. Having heard learned Advocates for the parties and having perused documents on record, it appears that the petitioner has challenged order dated 16.09.2023 by the respondent-Board, under which the explanation given by the petitioner to the show cause notice was rejected and the respondent-Board thereafter proceeded under the conditions mentioned in clause-(xiii)(a)(c) of volume-IA and clause-21.6(a),(b) and (c) and 21.7 of the technical bid, which debarred the petitioner for a period of 3 years from participating in the tender process of the respondent-Board. As per the tender details, the estimated contract was for a period of Rs.64,55,82,477.03/-; the period of completion was 24 months; time Page 10 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined for bid document downloading was to start on 29.05.2023 and to end at 18;00 hours on 27.06.2023; the prebid meeting was to be offline; the prebid meeting opening date was scheduled on 05.06.2023; the last date and time for receipt of bid was scheduled on 27.06.2023; the bid validity period was 180 days; preliminary stage for bid opening date was 28.06.2023 at 17;10 hours; technical stage bid opening date was 28.06.2023 at 17;20 hours and the price bid opening date was scheduled to be intimated at later stage by the respondent-Board.
7. The Court may now deal with the case law. Learned Advocate for the petitioner relied upon decision of the Apex Court in case of UMC Technologies Private Limited Vs. Food Corporation of India & Anr., reported in (2021) 2 SCC 551, and invited attention of the Court to Paras-13 and 20 to substantiate his argument that the show cause notice must constitute valid basis and the contents must clearly indicate the proposed action. After discussion of various decisions of the Apex Court in Para-21, a clear legal position of law is that the content of the notice must state clearly the intention of the notice issuer. The Court has perused the notice issued to the petitioner at Annexure-E. It is clearly making a statement of fact which is construed by the Notice issuing respondent-Board to be the breach of term, thereby mislead the respondent-Board to believe that the petitioner is having necessary Page 11 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined work experience to qualify. The notice also refers to the clauses of tender invoked in the facts and the consequences thereof. The contention of the petitioner in this regard is therefore not accepted. 7.1 In case of Jagdish Mandal Vs. State of Orissa & Ors., reported in (2007) 14 SCC 517, the Apex Court examined the scope of judicial review in tender matter. In Para-28, the Apex Court has held as under:-
"28. The limited scope of judicial review by the High Court envisaged examination of the question whether there was any material irregularity in the decision making process or whether the decision of the Committee and consequential rejection of fifth respondent's tender was irrational, unreasonable or arbitrary. The validity of the decision of the Committee taken on the material available at the time of consideration of tenders, cannot be tested with reference to a subsequent police enquiry report submitted in the writ proceedings. Nor can it be held that the Committee acted arbitrarily in not accepting the passbook, on the basis of some report opining that the TD passbook is genuine. The High Court was not sitting in appeal over the decision of the Committee. The High Court could not, therefore, by relying on a subsequent police enquiry report, the correctness of which is yet to be established, to hold that the Tender Committee was wrong in rejecting the TD passbook. Further, the High Court missed the issue. The question for consideration was not whether the TD passbook Page 12 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined pledged by the fifth respondent is genuine or not. The question for consideration was whether the committee acted arbitrarily or irrationally in rejecting the said TD passbook."
7.2 In case of National High Speed Rail Corporation Limited Vs. Montecarlo Limited & Anr.,reported in (2022) 6 SCC 401, the Apex Court has held that the Court for interfering under Article-226 of the Constitution of India has to pose two specific questions and in Para-29, has answered the same, which reads as under:-
"29. Thus, from the aforesaid decisions, it can be seen that a court before interfering in a contract matter in exercise of powers of judicial review should pose to itself the following questions:-
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"? And
(ii) Whether the public interest is affected?
If the answers to the above questions are in the negative, then there should be no interference under Article-226."
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8. The Court may thereafter proceed to examine the relevant clauses in the tender and the procedure adopted by the respondent-Board. The relevant clauses of the tender bid dealt with the subject matter of the petition are, Clause-1.1-Special Attention, Sub-clause-(xiii)(a), which reads as under:-
"xiii : The bidder shall be disqualified if, a. The bidder had made misleading or false representation in the forms, statements and attachment submitted in proof of qualification requirements and/or The bidder should submit undertaking on non- judicial stamp paper of Rs.300/- duly attested by notary public regarding document submitted, are true. Board would have the right to forfeit the EMD and black list to the bidder if any of the information given by the bidder is found faulty or incorrect of misleading."
9. The show cause notice is issued to the petitioner by specifically referring to the act on the part of the petitioner in annexing work experience certificate, which according to the respondent-Board, was a false document and therefore, the show cause notice indicated that as per the Form-3A furnished by the petitioner with the tender for Godhara Underground Sewage Project, with a view to meet the qualifying corporal criteria, the petitioner had shown the stake as 100%. However, on verifying, it has been revealed that the petitioner has bid and undertaken Godhara Underground Sewage Project as a joint venture, which establishes that the same was done with a view to mislead the Page 14 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined board and to qualify for bidding the tender. 9.1 The following provisions have been laid in the Technical Bid Volume-IA, Section - 2, Instruction to Bidder (A), General 1.1 Special Attention:-
"Clause No. xiii : The bidder shall be disqualified if,
(a) The bidder had made misleading or false representation in the forms, statements and attachment submitted in proof of qualification requirement.
Clause No. 21.6: "The bid security may be forfeited;
(b) If any document submitted by the bidder are false and fraudulent.
Clause No. 21.7 In case of forfeiture of EMD, Bidder shall be disqualified and shall not be allowed to bid for further works under GWSSB/GWIL for three years.
You shall give an explanation within 7 days as to why the procedure as per the terms and condition of the above mentioned tender should not be initiated against you for having presented a certificate containing misleading credentials as to experience."
9.2 In this show cause notice, the respondent-Board had invoked clause-21, which provides for the bid security. Clauses- Page 15 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024
NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined 21.6 and 21.7 read as under:-
"21.6 The bid security may be forfeited;
(a) if the bidder withdraws its bid, during bid validity
period specified
(b) if any document submitted by the bidder are false
and fraudulent
(c) if the successful bidder fails
i. To furnish security deposit in accordance with the
relevant clause in the bid.
ii. To sign the contract with in time limit specified in
the bid.
21.7 In case of forfeiture of EMD, Bidder shall be disqualified and shall not be allowed to bid for further works under GWSSB/GWIL for three years."
10. The contents of the notice clearly indicated that form No.3A submitted along with the tender bid mentioned name of the contractor to be that of the petitioner (page No.139). This certificate bore signature of the partner of the petitioner company. This certificate was the subject matter of verification by the respondent-Board from the certificate issuing authority-Gujarat Urban Development Company Ltd., a government of Gujarat undertaking. This verification was carried out under office letter of Page 16 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined the respondent-Board dated 20.07.2023 and in response thereto, GUDCL issued certificate (form No.3A), wherein name of the contracting agency was mentioned as M/s.Gujarat Construction Company, Mehsana (51%), a joint venture and M/s.NCC NCC Infraspace Pvt. Ltd., Mehsana (49%) (page No.142), which was pertaining to the very contract for which, along with the bid, form No.3A was annexed by the petitioner (page No.139). Therefore, it has come on record that the work for which GUDCL had issued work experience certificate in form No.3A was the work which was executed by a joint venture, where the petitioner was one of the constituent partners. Therefore, by submitting form No.3A (page No.139), which carried name of the contractor as M/s.Gujarat Construction Company, Mehsana (the petitioner), it appears that submission of such document was reflecting the work experience of the petitioner in its individual capacity and not as a joint venture.
11. This being the foundation for issuance of show cause notice, the petitioner filed detailed reply on 28.08.2023 (Annexure- F), whereby contention was raised that the certificate issued was not false certificate as the same has been issued by and under the signature of the certificate issuing authority. In support of this contention, communication of GUDCL dated 28.07.2023 was also issued. However, such document at Annexure-C would indicate that it was as per the contractor's request a revised and updated Page 17 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined form No.3A was was issued and therefore, against the name of the contractor, GUDCL has named a joint venture as contracting agency.
12. The requirement of the tender bid also specifies for filing of an undertaking /affidavit with regard to correctness of the document submitted along with the bid, which the petitioner has also submitted in due course and clause-v of the such affidavit would read as under:-
"5. I say that if any particulars found to be incorrect or incomplete or misleading in any manner, the GWSSB shall have full authority to cancel the tender at any point of time and the Gujarat Construction Co. shall be liable for all the consequences that may arise out of the action of GWSSB."
13. The other contention in the show cause notice was that independent of the certificate of the work experience, the petitioner was even otherwise and in this regard, has sought to justify sufficiency of the work experience as under:-
Criteria Our experience
1. One contract of Rs.38.73 Cr. Or 1. GUDC Khambhat 51.70 x 1.77 x
49% = 44.84 Cr.
2. Two contract of Rs.22.60 Cr. or 2. (1) GWSSB - Bharuch 24.27 Cr.
(2) GUDC Godhra- 44.31 x 1.46 x
51% = 32.99 Cr.
3. Three contracts of Rs.16.14 Cr. 3. (1) GWSSB Nadiad Rs.20.90 Cr.
(2) GWSSB Bharuch Rs.17.39 Cr.
(3) GWSSB Bharuch Rs.24.27 Cr.
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14. While passing the impugned order dated 16.09.2023, respondent-Board has dealt with the contention raised and has assigned reasons to arrived at a conclusion that as per the clarification given by GUDC vide letter referred herein, though M/s.Gujarat Construction Co. had executed Godhara Underground Sewage Project in a joint venture, it has obtained the Completion Certificate, at the relevant time, by showing its stake as 100%. The GUDC has informed that the certificate be considered as invalid and the certificate issued by it on 18.07.2023 with regard to Godhara Underground Sewage Project be considered as valid. Thus, though M/s. Gujarat Construction had executed the project in a joint venture, it has used this certificate to qualify for bidding the subject tender by showing its stake as 100% and thus it has mislead the board by committing such a fraudulent practice. Therefore, as provided under Clause - 13 (a), (c), Special Attention, Instructions to Bidder (A) General 1.1, page no. 19 - 20 of Technical Bid, Volume-A of the tender as well as Clause 21.6 (a),
(b), (c) and Clause 21.7 of Technical Bid, page no. 44, Volume IA of the tender, the contractor is liable to be debarred for three years.
15. At the stage of evaluation of bid, clause-29.2 would read as under:-
"29.2 Even though the bidder meets the above Page 19 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined qualification criteria, he shall be disqualified if:
a. The bidder had made misleading or false representation in the forms, statements and and attachment submitted in proof of qualification requirements and/or b. A record of poor performance such as abandoning the work, not properly completing the contract, inordinate delays in completion, litigation history or financial failures etc. c. Bidder has been blacklisted by any Government/ Non-Government/Private agencies/ Organizations/ Institutions/Government Undertakings and funding Agencies in the last 05 Years.
The bidder should provide accurate information on litigation and/ or arbitration resulting from contract completed or under execution by him over the last five years. A consistent history of arbitration awards/ judgments against the applicant or any partner of a joint venture may result in disqualification for proposed work. If the details of litigation history is hidden by the applicant and later on it comes to knowledge of the employer the bidder shall be disqualified for the proposed work and other appropriate actions shall be taken against the bidder.
The bidder should submit undertaking or non- judicial stamp paper of Rs.300/- dully attested by notary public regarding document submitted, are Page 20 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined true. Board would have the right to forfeit the EMD and black list to the bidder if any of the information given by the bidder is found faulty or incorrect or misleading."
16. Clause-41 would read as under:-
"41 Corrupt or fraudulent practices:
41.1 The GWSSB requires that bidders/suppliers/ contractors have followed the highest standard of ethics during the procurement and execution of such contracts. In pursuance of this policy:
(a) Defines for the purposes of this provision, the terms set forth below as follows:
(i) "Corrupt practices" means behaviour on the part of officials in the public or private sectors by which they improperly and unlawfully enrich themselves and/or those close to them, or induce others to do so, by misusing the position in which they are placed, and it includes the offering, giving, receiving, or soliciting of anything of value to influence the action of any such official in the procurement process or in contract execution;
and
(ii) "Fraudulent practice" means a misrepresentation of facts in order to influence a procurement process or the execution of a contract. to the determination of the Borrower, and includes collusive practice among bidders (prior to or after Page 21 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined bid submission) designed to establish bid prices at artificial non-competitive levels and to deprive the borrower of the benefits of free and open competition;
(b) Will reject a proposal for award if it determines that the bidder recommended for award has engaged in corrupt or fraudulent practices in competing for the contract in question;
(c) Will declare a firm ineligible, either indefinitely or for a stated period of time, to be awarded a contract if it at any time determines that the firm has engaged in corrupt and fraudulent practices in competing for, or in executing, a contract. If at it any stage it is found that bidder had hidden material information or had submitted information which is false and fraudulent s shall be debarred from bidding in GWSSB/GWIL tender for three years and EMD shall be forfeited. The matter shall also be brought to notice to the registration authority of the contractor."
17. In the opinion of the Court, the respondent-Board has acted in accordance with the tender clauses and has complied with the requirements of principles of natural justice and after considering the explanation given by the respondent-Board, has assigned its reasons for passing the impugned order. The Court does not find any procedural lapses in the entire exercise. Page 22 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024
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18. It can be argued that when clause-21.6 was invoked, the phrase used "bid security may be forfeited", leaving thereby scope of discretion with the respondent-Board. Therefore, the Court will have to examine as to whether such discretion was exercised based on sound principles in this regard? The Court finds that following of the procedure and considering explanation would be the relevant factor, on the basis of which the Court can infer about the exercise undertaken to use discretion. A conjoint reading of the clause under the tender document as referred to in the preceding paras, invoking of the same by the respondent-Board in issuing the show cause notice and considering the contentions raised by the petitioner in its explanation to the show cause notice, the respondent-Board had no other scope but to arrive at a conclusion in the face of established fact of submitting of a work experience certificate, which did not reflect the correct fact of the petitioner being the standalone contractor in the work described under the work experience certificate form No.3A, whereas, in fact, that work was carried out by a joint venture, where the petitioner was 51% partner and other constituent member being 49% partner. No amount of justification about the ability on the basis of previous work carried out even with the respondent-Board would have been sufficient to replace the action on the part of the petitioner in submitting the work experience certificate, which was incorrect and did not display proper work experience to qualify for the Page 23 of 24 Downloaded on : Thu Jul 04 20:52:06 IST 2024 NEUTRAL CITATION C/SCA/19025/2023 JUDGMENT DATED: 02/07/2024 undefined contract.
19. The Court may lastly reproduce the stand of the petitioner in his pleadings on page No.9-Para-C as under:-
"C. That a con-joint reading of the aforesaid Tender terms and conditions establishes that the Respondent has power to "disqualify" a bidder if the bidder submits misleading or false attachment in proof of qualification requirements. In the present case, the Respondent has used this clause to disqualify the Petitioner from the Tender in question, against which the Petitioner does not have any grievance. It is made clear that though the Petitioner does not accept the reasoning adopted by the Respondent for disqualification from the Tender in question, the primary challenge in the petition is to the order of blacklisting and forfeiture of EMD."
20. For the foregoing reasons, the Court is of the opinion that no case is made out for interference under Article 226 of the Constitution of India. The petition therefore, deserves to be and is hereby dismissed. Rule is discharged. No order as to costs.
Sd/-
(A.Y. KOGJE, J) Sd/-
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