Allahabad High Court
Energo Construction Private Limited vs Uttar Pradesh Rajya Vidyut Utpadan ... on 21 February, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:30429-DB A.F.R Reserved on 28.11.2023 Delivered on 21.02.2024 Case :- Writ C No. 26784 of 2023 Petitioner :- Energo Constructions Private Limited Respondent :- Uttar Pradesh Rajya Vidyut Utpadan Nigam Ltd. And 3 Others Counsel for Petitioner :- Prashant Shukla Counsel for Respondent :- Shishir Prakash, Raghav Dev Garg Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
(Per: Hon'ble Mahesh Chandra Tripathi, J.)
1. Heard Sri Navin Sinha, learned Senior Advocate, assisted by Sri Prashant Shukla, learned counsel for the petitioner; Sri Shad Khan, learned counsel holding brief of Sri Shishir Prakash, learned counsel for the respondent Nos.1 to 3 and Sri Anurag Khanna, learned Senior Advocate, assisted by Sri Raghav Dev Garg, learned counsel for the respondent No.4.
Facts:-
2. The facts of the case as emerging out from the record are that the petitioner herein is a company engaged in business of Operation and Maintenance Services (for the sake of brevity hereinafter referred as 'O&M Services') for Uttar Pradesh Rajya Vidyut Utapadan Nigam Ltd. including O&M Services and Coal Handling Plants. The respondent no.1 floated a tender sometimes in June 2020 for execution of O&M Services for its Coal Handling Plants at Paricha Station for a period of two years. The petitioner, who participated in the bid, was found suitable and contract was awarded to it. It was at that point of time, when one of the unsuccessful bidder alleged that petitioner had been debarred by another State owned power generating company in Madhya Pradesh, hence the petitioner was not qualified to be awarded the contract, as such, response was asked from the petitioner. Vide letter dated 15.10.2020, the petitioner clarified that the allegations against it were incorrect and were raised only to disqualify the petitioner. The tender proceeding culminated into a contract dated 15.03.2021.
3. The respondent no.2 again floated a tender for the period commencing from 01.03.2023. For some reason this tender could not be finalized and the existing contract of the petitioner was extended till 31.03.2023, for a period of one month. Thereafter a fresh tender was floated on 22.03.2023, which had two bid mode of technical and financial bids. The petitioner alongwith other bidders participated in the tender proceeding and technical bid were opened on 06.04.2023. The petitioner alongwith respondent no.4 and few others were found technically qualified. Since the tender proceedings could not be culminated for some reasons, hence the existing tender of the petitioner, which was coming to an end on 31.03.2023, was again extended upto 31.05.2023.
4. The financial bid of bidders, who qualified in the technical bid, were opened and the bid of petitioner was found to be the lowest (L1). It is claimed that despite the petitioner being L1, the tender was not awarded to the petitioner. When the petitioner met the officials of respondent no.1, he came to know that the respondent no.4 has filed a complaint alleging that the petitioner had filed a false affidavit regarding blacklisting/debarment/termination of the contract. It was alleged that earlier the petitioner had been debarred by one of the State owned company in Madhya Pradesh. The petitioner submitted that no communication has been made by the respondent no.1 qua the said complaint and he came to know that the respondent no.1 was about to award contract to respondent no.4. Such situation impelled the petitioner to prefer the earlier Writ C No.6515/2023 (Energo Construction Pvt. Ltd. New Delhi vs. U.P. Rajya Vidyut Utpadan Nigam Ltd.) before the Lucknow Bench of this Court, which was dismissed as withdrawn by order dated 02.08.2023 with liberty to file fresh petition before appropriate Bench/Court as the matter pertains to district Jhansi. Meanwhile, the respondent no.1 has issued LOI in favour of respondent no.4 on 28.07.2023. Aggrieved by the award of LOI to respondent no.4, the petitioner preferred the instant writ petition with following reliefs:-
(i) Issue an appropriate writ or direction or order in the nature of certiorari thereby quashing the Letter of Intent dated 28.07.2023 bearing Ref. No.441/CHD-IV/PTPP/ 2023-24/CF issued by respondent nos.1 to 3 in favour of respondent no.4 (Annexure-2).
(ii) Issue an approriate writ or direction or order in the nature of mandamus thereby seeking appropriate directions to respondent nos.1 to 3 to award to the petitioner (i.e. L1 bidder) in Tender breafing Ref. No.N-PAR/C/O&MC5/CHD4/6000001163_00 for 'Round the Clock complete O&M of Coal Handling Plant of Parichha Thermal Power Project' (Annexure-1);
(iii) Direct respondent nos.1 to 3 to not take any precipitative/coercive/prejudicial steps against the petitioner including but not limited to forfeiture of earnest money deposit on any gound or prejudice other contracts/tenders in any manner.
(iv) Such other appropriate writ, order or direction as this Court may deem just and proper in the circumstances of the case and in the interest of justice, be passed in favour of the petitioner.
(v) Cost of the writ petition be awarded in favour of the petitioner.
5. After filing the present writ petition, an Email was sent to the petitioner, wherein, he was informed that the Tender Valuation Committee had rejected the bid of the petitioner with following remarks:-
"You are informed that your bid for the above tender has been rejected during Financial evaluation by the duly constituted committee for the reason Competent Committee did not consider the offer of L-1 firm due to submission of false information on notarized affidavit regarding blacklisting/debarment/termination of contract."
6. The petitioner herein, after getting this Email moved an amendment application, which was allowed on 28.11.2023. By the said order following relief has been added:-
"i (A) Issue a writ, order or direction in the nature of certiorari quashing the impugned email dated 08.08.2023 (Annexure No.-11 to this petition)"
Arguments of petitioner :-
7. Shri Navin Sinha, learned Senior Advocate appearing for the petitioner, submitted that the procedure adopted by respondent Nos. 1 to 3 for issuing LOI in favour of respondent No. 4 is arbitrary and violative of Article 14 of the Constitution of India. Petitioner complied with all the requisite technical requirements and was found eligible with lowest financial bid. Despite the bid being the lowest, the petitioner was disqualified (after opening of the financial bid) ostensibly on the ground that the petitioner had submitted a false affidavit as a part of its bid. Before filing the present writ petition, at no point of time, the petitioner was informed of its disqualification or even the fact that a complaint was received against it. The first official communication to the petitioner, regarding its disqualification was received on 08.08.2023 i.e. after filing of the present Writ Petition.
8. Shri Sinha further submitted that rejection of petitioner's lowest bid, allegedly on ground of submission of false information on notarized affidavit, is wholly misconceived. The petitioner submitted the requisite affidavit in the template provided at Annexure-V in compliance with clause B-6 read with Annexure-V, which seeks a declaration that no termination has happened for any kind of fraudulent activities. In support of his submission, he placed reliance on the judgement of Hon'ble Apex Court in Central Coalfields Limited & Anr v SLL- SML (Joint Venture Consortium) & Ors (2016) 8 SCC 622, wherein, the importance with the format in tender matters have been dealt with. Respondents have alleged that petitioner concealed material facts by failing to disclose the termination by MPPGCL. He submitted that in 2018, MPPGCL admittedly terminated petitioner's tender due to non-performance and not for 'fraudulent activities', therefore, there was no concealment of material facts. Further, the termination itself is a matter pending adjudication before Madhya Pradesh High Court in Writ Petition No. 13486 of 2018. This fact was already in the knowledge of Respondent No.1 and in case, a proper opportunity would have been provided to the petitioner, it would have satisfactorily explained the same. During the tendering process in 2020/2021, the issue of MPPGCL's termination was raised, which was satisfactorily explained by the petitioner and consequently, the contract was awarded by the respondent no.1.
9. Shri Navin Sinha, learned Senior Advocate vehemently contended that the dispute in question raises public issues, in relation to the practice and procedure adopted by a State entity while awarding a tender. The action taken by the respondent no.1 is arbitrary, irrational and malafide and whenever there is an infirmity in decision making process, the writ courts have a Constitutional duty to interfere even if they are contractual issues, especially in cases where the conditions of the tender are tailor-made to suit interests of one party and the said conditions are to be examined by way of reverse engineering. In support of his submission, he placed reliance on the dictum of Hon'ble Apex Court in Tata Motors vs. Brihan Mumbai Electricity Supply and Transport Undertaking and others 2023 SCC OnLine SC 671 and Meerut Development Authority vs. Association of Management Studies and another 2009 (6) SCC 171. In this backdrop, he submitted that the matter warrants justifiable interference by this Court.
10. Refuting the allegations levelled in the complaint, Shri Sinha submitted that during the tendering process for preceding period of 2020-2021, similar allegations were raised against the petitioner. Even though, there was no requirement of an affidavit, still an opportunity to explain its position was given at that point of time but no opportunity of hearing/clarification was given to the petitioner now. This makes the conduct of respondent Nos. 1 to 3 even more questionable since when the threshold is higher, a show cause notice was required to be issued to the petitioner for providing an opportunity to submit its explanation. In the case of Jai Bholenath Construction vs. The Chief Executive Officer, Zilla Parishad, Nanded & Ors. (Civil Appeal No. 41440 of 2022 decided on 18.05.2022), the Supreme Court remanded back the tender to its earlier stage, for it being violative to principles of natural justice and fairness. The procedure adopted by respondent nos. 1 to 3 is violative to principles of natural justice and fair play. No show cause notice or opportunity of hearing was given to the Petitioner before rejecting its bid. Even, the decision of rejecting petitioner's bid was not communicated till 08.08.2023. He submitted that after unilaterally disqualifying the petitioner, secret negotiations were held between respondent no.1 and respondent no.4 and its offer was revised. Most importantly, all of this was done in secrecy and in an offline mode without uploading any document on the bidding portal or apprising the other bidders. It is settled law that secret negotiations cannot be undertaken with one bidder (See Ram and Shyam Company v State of Haryana & Ors. (1945) 3 SCC 267, Uttar Pradesh Procurement Manual, 2016 ("in short "Manual"] Clause 3.4 (11) Pg. 14, Clause (1) Pg. 17, Clause 14.12 Pg. 119, Clause 14.30 Pg. 126). The said action can also not pass the judicial scrutiny, being violative of Wednesbury Principle of Reasonableness. (see M/s Star Enterprises & Others v City and Industrial Development Corporation of Maharashtra Ltd. & Others (1990) 3 SCC 280 (Para 10), M/s Jai Hanuman Construction State of UP & Ors 2023 SCC OnLine All 2033 (Para 25), Clause 14.14(4) Pg. 120, Clause 14.34(3) @ Pg. 129 of the Manual). Summing up his arguments, he submitted that the petitioner has acted in reasonable and fair manner and considering the facts in entirity, relief is liable to be accorded by this Court being empowered under Article 226 of the Constitution of India, otherwise, the petitioner would suffer irreparable loss and injury.
Arguments of Contesting Respondents :-
11. Shri Shad Khan, Advocate holding brief of Shri Shishir Pathak, learned counsel for respondent no.1, 2 and 3 submitted that an e-tender was published on 22.03.2023 for the work "Round the clock Complete Operation & Maintenance Works of entire Coal Handling Plant of 2x210 MW CHP for uninterrupted coal feeding of 2x210 MW + 2x250 MW (Unit No.3,4,5&6), unloading works of 2x110MW CHP including manual loading works of 2x110 MW CHP including manual unloading and management, operation and shutting work etc., and Round the clock Complete Mechanical & Electrical Maintenance works of Coal Unloading Plant 2x110MW CHP etc. (for two years)" of Parichha Thermal Power Station, U.P. Rajya Vidyut Utpadan Nigam Ltd. In the said e-tender, four firms have participated and were found technically qualified. On 03.05.2023, the financial bids of the qualified bidder were as follows : (i) L-1 M/s Energo Construction Pvt. Ltd., New Delhi -Bid Amount Rs.28,42,44,530/-, (ii) L-2 M/s Lokenath Constructions Pvt. Ltd., Kolkata-Bid Amount -Rs.28,55,76,205.26/-, (iii) L-3 M/s Star O&M Group, Ghaziabad- Bid Amount-Rs.28,95,90,856/- and (iv) L-4 M/s Chennai Radha Engineering Works (P) Ltd., Chennai -Bid Amount- Rs.63,97,04,928/-.
12. Shri Khan further submitted that on 19.05.2023, a complaint was received from the respected Member of Parliament (Lok Sabha), wherein, it has been informed that the work of the petitioner's firm was terminated and the firm was debarred by the MPPGCL, Khandwa and there were certain disputes regarding the G.S.T. at Hisaar Plant. The complaint was sent for verification to MPPGCL, who verified that the petitioner's contract was terminated and it was debarred from participating in the future tenders of MPPGCL. He further submitted that as per tender condition the bidder has to provide declaration on notarized affidavit, Non Judicial Stamp paper of Rs.100/-, to the effect that the bidder has not been blacklisted/work awarded to the bidder has not been terminated by the SEBs/State GENCO/Central GENCO/PSU's/CPSU/Statutory Body, Independent Power Producers (IPP). He further submitted that, on 04.04.2023, the petitioner company by concealment of material facts has given an affidavit, whereby, it has been declared that the petitioner has not been blacklisted/debarred and their work has not been terminated by the SEBs/State GENCO/Central GENCO/PSU's/CPSU/Statutory Body, Independent Power Producers (IPP).
13. He further submitted that the petitioner was guilty of suppressiio veri and suggestio falsi as it has submitted a false declaration on affidavit and hence its bid was rejected, thereafter, the negotiations took place and the contract was awarded to L2, who is respondent no.4. After getting the contract, the respondent no.4 has also commenced the work with huge investment. He further submits that at the time of awarding earlier contract, petitioner was not required to file an affidavit qua blacklisting/debarment/termination of contract, however in the Tender 2023, a specific clause was added requiring the participating firms to give information on a notarized affidavit regarding the blacklisting/debarment/termination of any contract, which was falsely responded by the petitioner firm. He also submitted that petitioner vide letter dated 15.06.2023 and 23.06.2023 were duly informed that their bid was rejected on the ground of false declaration given by them. Lastly, he submitted that since the the scope of judicial review in contractual matters is very limited and hence this Court should refrain from interfering with the contractual matters.
Arguments of Respondent no.4 :-
14. Shri Anurag Khanna, learned Senior Advocate assisted by Shri Raghav Dev Garg, learned counsel for respondent no.4 submitted that Hon'ble Apex Court has time and again held that the Courts while exercising powers under the Constitution of India must refrain from interfering with such issues which are contractual in nature and can only be adjudicated upon after appreciation of disputed questions of facts. He submitted that petitioner has violated the terms of Clause B-6 of the E-tender and Annexure-V was to be incorporated by the bidders in terms of Clause B-6.
15. He further submitted that the intent of such clause is to verify the credibility of the bidders on whom large amount of public money are being proposed to be spent. He elaborated that it is immaterial as to why the firm has been blacklisted/work terminated, since it is not only the character of the firm, which has to be considered but also the working capabilities of the firm as well and the contracting agency, being the drafter of the terms of the document, are the best judge to interpret the same in case of any ambiguity. Lastly, he submitted that the principles of equity and natural justice stay at a distance in such matters of fraud and concealment and as such, no interference is required in the matter. In support of his submission, he placed reliance on the judgement passed by Hon'ble Apex Court in Jagdish Mandal vs. State of Orrissa and others 2007 (14) SCC 517 and Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd and another 2016 (16) SCC 818.
Analysis :-
Scope of judicial review in award of Contracts:
16. We may refer to some of the decisions of this Court, which have dealt with the scope of judicial review in award of contracts.
17. In Sterling Computers Ltd v. M & N Publications Ltd. MANU/SC/0439/1993 AIR 1996 SC 51, this Court observed (SCC p.458, para 18):
"18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the decision making process the courts can certainly examine whether 'decision making process' was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution."
18. In Tata Cellular v. Union of India MANU/SC/0002/1996 AIR 1996 SC 11:, this Court referred to the limitations relating to the scope of judicial review of administrative decisions and exercise of powers in awarding contracts, thus: (SCC pp.687-88, para 94) "(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct the administrative action. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facets pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
19. In Raunaq International Ltd. v. I.V.R. Construction Ltd. MANU/SC/0770/1998 AIR 1999 SC 393, this Court dealt with the matter in some detail. This Court held: (SCC pp.500-01, paras 9-11) "9.The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be :
(1) The price at which the other side is willing to do the work;
(2) Whether the goods or services offered are of the requisite specifications;
(3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important;
(4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality;
(5) past experience of the tenderer, and whether he has successfully completed similar work earlier;
(6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services.
Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.
10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work - thus involving larger outlays or public money and delaying the availability of services, facilities or goods, e.g. A delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.
11. When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers."
20. In Air India Ltd. v. Cochin International Airport Ltd. MANU/SC/0055/2000 [2000] 1 SCR 505, this Court summarized the scope of interference as enunciated in several earlier decisions thus: (SCC pp.623-24, para 7) "7.......The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene.
[Emphasis supplied]
21. In Association of Registration Plates v. Union of India MANU/SC/1013/2004 AIR 2005 SC 469 , this Court held: (SCC p.700, para 43) "Article 14 of the Constitution prohibits government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contracts. At the same time, no person can claim a fundamental right to carry in business with the government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest."
22. In B.S.N. Joshi v. Nair Coal Services Ltd. MANU/SC/8598/2006 AIR 2007 SC 437, this Court observed: (SCC p.568, para 56) "56. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, court's interference in such matter should be minimal. The High Court's jurisdiction in such matters being limited in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record."
23. The legal proposition drawn in the light of above judgements of Hon'ble Supreme Court is that the judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.
24. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, in our considered opinion, the court before interfering in tender or contractual matters in exercise of power 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.
ii) Whether public interest is adversely affected.
25. If the answers to the above questions are in the negative, there should be no interference under Article 226 of the Constitution of India in such cases involving black-listing or imposition of penal consequences on a tendered/contractor or distribution of state largesse.
Conclusion :-
26. In this matter, the petitioner has apparently given a wrong affidavit in order to get the contract. For ready reference, Clause B-6 is reproduced as under:-
B6 Declaration of bidder against blacklisting Bidder has to provide declaration on notarized affidavit, Non Judicial Stamp paper of Rs.100/-, that the bidder has not been blacklisted/work awarded to the bidder has not been terminated by the SEBs/State GENCO/Central GENCO/PSU's/CPSU/Statutory Body, Independent Power Producers (IPP). (As per Annexure-V must be uploaded) Original copy of declaration on non-judicial stamp paper must be submitted in hard copy to the office of Superintending Engineer, O&MC-V, 2x250MW, CTPS, PTPP, Parichha, Jhansi.
A bare perusal of clause B-6 and Annexure V incorporated in the bid document clearly goes to show that the bidder has to provide declaration on notarized affidavit, Non Judicial Stamp paper of Rs.100/-, that the bidder has not been blacklisted/work awarded to the bidder has not been terminated by the SEBs/State GENCO/Central GENCO/PSU's/CPSU/Statutory Body, Independent Power Producers (IPP). The petitioner knowing the fact that he was disqualified gave a false declaration and in order to cross the first hurdle of technical qualifications, by misrepresenting the petitioner got itself to be technically qualified and its bid was opened. Claim of being L1 is immaterial as only those financial bids could be entertained, who are technically qualified. The petitioner herein does not qualify or pass first hurdle and hence it cannot take a benefit or argue that since its bid was lowest, the tender should be awarded to it.
27. As per ratio laid down in catena of judgements of the Hon'ble Supreme Court, it is clear that the scope of judicial review in the contractual matter is very limited. Moreover the respondents have the freedom to award the contract. The fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. The decision of the respondent must not only be tested by the application of Wednesbury Principle of Reasonableness but must be free from arbitrariness not affected by bias or actuated by malafides. This is the case in which there is no malafides or bias or arbitrariness. The bid of the petitioner had rightly been rejected since it had given a wrong statement on an affidavit stating that nowhere they have been blacklisted or their contract have been terminated.
28. The petitioner, knowing the fact that it was not qualified to participate in the tender, tried to grab the tender by giving a false declaration by way of an affidavit, by misrepresenting the petitioner tried to get itself technically qualified and accordingly, the bid was opened. The claim of the petitioner that it being the lowest (L1) is not material, as the bid of technically qualified can only be considered. Hence, the petitioner, who is technically disqualified, cannot be considered in the tender procedure.
29. In view of above discussions, we find no merit in the writ petition, hence the writ petition is accordingly dismissed.
30 No order as to costs.
Order Dated: 21.02.2024 A. Pandey