Uttarakhand High Court
M/S Super Construction Associates vs State Of Uttarakhand And Others on 29 May, 2019
Equivalent citations: AIR 2019 UTTARAKHAND 113, AIRONLINE 2019 UTR 291 (2019) 2 UC 1210, (2019) 2 UC 1210
Author: N.S. Dhanik
Bench: Ramesh Ranganathan, N.S. Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SPECIAL APPEAL NO. 499 of 2019
M/s Super Construction Associates ..........Appellant
Vs.
State of Uttarakhand and others. ...Respondents
SPECIAL APPEAL NO. 507 of 2019
M/s Super Construction Associates ..........Appellant
Vs.
State of Uttarakhand and others. ...Respondents
SPECIAL APPEAL NO. 530 of 2019
M/s Super Construction Associates ..........Appellant
Vs.
State of Uttarakhand and others. ...Respondents
&
SPECIAL APPEAL NO. 532 of 2019
M/s Super Construction Associates ..........Appellant
Vs.
State of Uttarakhand and others. ...Respondents
Sri Shobhit Saharia, learned counsel for the appellant.
Sri C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand /
respondent nos. 1 & 4.
Sri S.S. Chauhan, learned counsel for respondent nos. 2 & 3.
COMMON JUDGMENT
Dated: 29th May, 2019 Chronological list of the cases referred:
(1) (2018) 5 SCC 462
(2) (2007) 8 SCC 418
(3) (2014) 3 SCC 760
(4) AIR 1996 SC 11
(5) AIR 1994 SC 393
(6) (2007) 4 SCC 517
(7) (2006) 10 SCC 236
(8) 2005 7 JT 214
(9) 1991 1 JT 605
(10) (2012) 6 SCC 464
(11) (2004) Suppl. 1 JT 502
(12) (1993) 1 SCC 445
(13) (2000) 2 SCC 617
(14) AIR 2006 SC 469
(15) AIR 2007 SC 437
(16) (2016) 15 SCC 272
(17) 1990 4 JT 601
(18) (1985) 8 SCR 909
2
(19) (2016) 8 SCC 622
(20) (2005) 1 CTLJ 353 (Delhi)
(21) (2003) 4 SCC 579
(22) AIR 2012 SC 2915
(23) AIR 2005 Delhi 247
(24) (1988) 1 AC 858
(25) (2001) 8 SCC 491
(26) Bernard Schwartz, in Administrative Law, 2nd Edn., p.584
(27) (2005) 6 SCC 138
(28) (2010) 14 SCC 253
(29) (1990) 3 SCC 280.
(30) (1990) 3 SCC 287
(31) (1997) 7 SCC 592.
(33) (1981) 1 SCC 568.
(33) (1997) 1 SCC 738.
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble N.S. Dhanik, J.
Ramesh Ranganathan, C.J. (Oral)
These four appeals are preferred against the common order passed by the learned Single Judge in Writ Petition (M/S) No. 3044 of 2018 dated 10.04.2019 dismissing the writ petitions.
2. Facts, to the limited extent necessary, are that the appellant- writ petitioner is a partnership firm engaged in the business of construction of roads. The Uttarakhand Rural Road Development Agency (for short the "URRDA") invited bids for construction of certain roads under the "Pradhan Mantri Gram Sadak Yojana". An advertisement was issued, by the respondent-Department on 18.07.2018, inviting bids from qualified bidders for construction of motorable roads in the rural areas of Uttarakhand. While the advertisement listed 39 projects, the appellant-writ petitioner submitted their bids for six such projects in different districts of Uttarakhand. The bid process involved two stages. The first stage was the technical bid evaluation, and those who qualified at this stage were subjected to financial evaluation at the second stage. In terms of the notice inviting tender, applicants were required to furnish details of their qualifications including, among others, their turn-over, their financial status and litigation history.
33. The appellant-writ petitioners bids' were rejected, at the stage of technical evaluation, on the ground that they had failed to disclose the fact that they had instituted Writ Petition (M/S) No. 3006 of 2017 against respondent nos. 2 & 3 before the Uttarakhand High Court. Questioning the rejection of their bids on this ground, the appellant-writ petitioner invoked the jurisdiction of this Court resulting in the orders under appeal being passed by the learned Single Judge. In the orders under appeal, the learned Single Judge, after extracting Clause 4.7 of the Standard Bidding Document (for short the "SBD"), observed that a bidder could be disqualified if he had made any misleading or false representation in the form, or he had not stated that he had a litigation history.
4. The learned Single Judge, thereafter, referred to Section 3 of the SBD called "qualification information" and to Clause 1.9 thereunder, in terms of which the bidder was required to supply information of the current litigation. After taking note of the fact that the last date of submission of bids was between 07.08.2018 and 06.09.2018 for different projects, the learned Single Judge observed that the bids of the appellant-writ petitioner had been rejected as technically disqualified for the reason that they had not submitted their current litigation history; the appellant-writ petitioner had, on an earlier occasion when bids were invited by the Department and another participant was declared to have qualified, filed a writ petition before this Court against the same department i.e. URRDA, wherein they had challenged the order by which another company was declared technically qualified which, according to them, was illegal.
5. After taking note of the fact that Writ Petition (M/S) No. 3006 of 2017 was pending before this Court, on the date on which the bidding documents were submitted by the appellant-writ petitioner, the learned Single Judge observed that the appellant-writ petitioner had not furnished this information to his employer; in other words, 4 they had not submitted that a litigation was pending, against the employer before the High Court, pertaining to a contract; it was urged on behalf of the appellant-writ petitioner that they had moved an application, along with an affidavit, before the respondent- authorities, informing them that the said writ petition would be withdrawn; and acting upon the application, the company which was declared responsive was finally given the contract on 05.12.2017.
6. The learned Single Judge observed that there was no document on record to show that such an application was moved by the appellant-writ petitioner; there was a specific denial of this fact in the counter affidavit; the said writ petition was dismissed as withdrawn by the Court on 07.09.2018; it was urged, on behalf of the appellant-writ petitioner, that they could not have been declared technically disqualified for the reason that their litigation was within the same Department and, even though they had not specifically filled in the column regarding litigation, it could not be said that the Department was unaware of the same; it was urged, on behalf of the respondent-Department, that the affidavit filed in support of Writ Petition (M/S) No. 3006 of 2017, for withdrawal of the writ petition, was sworn as far back on 27.05.2018, but was filed only on 05.09.2018; admittedly, till the last day of filing of the bids in the present case, the case filed by the appellant-writ petitioner before the High Court was pending; as per Clause 4.7 of the SBD, if a bidder made any misleading or false representation in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements, or there was a record of poor performance such as abandoning the works, not properly completing the contract, inordinate delay in completion, litigation history, or financial failures, etc or the bidder had participated in the previous bidding of the same work, and had quoted unreasonably high or low bid prices, and could not furnish a rationale justification for it to the employer, the bidder was to be held disqualified; the 5 Court had not even an iota of doubt that the appellant-writ petitioner had concealed material facts while submitting their bidding documents; it was mandatory for the appellant-writ petitioner to have furnished the information about the litigation history, particularly when this litigation was regarding the contract with the same Department; they had, admittedly, not furnished this information; the writ petition was subsequently withdrawn, only after the documents were submitted by the appellant-writ petitioner in the present case; it was an after-thought; the appellant-writ petitioner had not submitted correct information; and, as per the terms of the SBD itself, their bids were rightly held to be non- responsive. The writ petitions were dismissed. Aggrieved thereby, the present appeals.
7. Sri Shobhit Saharia, learned counsel for the appellant-writ petitioner, would submit that the disqualification, in terms of Para 4.7(ii) of the Instructions to Bidders (ITB) regarding litigation history, could only have been examined post technical evaluation; as the appellant-writ petitioner had withdrawn their writ petitioner on 07.09.2018, more than a week prior to the first date of technical evaluation i.e. 15.09.2018, there was no litigation pending between the appellant-writ petitioner and the respondent-Department on 15.09.2018; the appellant-writ petitioner could not, therefore, have been technically disqualified on the ground that there was a litigation history between them and the Department; after Writ Petition (M/S) No. 3006 of 2017 was filed before this High Court, they had furnished a letter to the Department, as early as in December, 2017, informing them that they would withdraw the writ petition, and it was open to them to award the contract to the successful bidder in that tender process; the Department was well aware that the appellant-writ petitioner did not intend to prosecute Writ Petition (M/S) No. 3006 of 2017 before the High Court; Clause 4.7(ii) permits rejection of a bid on the ground of litigation history; a solitary writ petition instituted by the appellant-writ petitioner, 6 which was not even prosecuted by them, cannot, by any stretch of imagination, constitute a litigation history; the words "litigation history" would require two or more cases to be instituted by the appellant-writ petitioner; a solitary writ petition, that too one which was not even pursued, would not constitute litigation history; larger public interest would be served only if the appellant-writ petitioner's bids, which were otherwise found to have fulfilled all the technical qualifications, were accepted; the State exchequer would have saved a few crores of rupees, if only the work had been awarded to the appellant-writ petitioner; and, having awarded the work to the successful bidder in Writ Petition (M/S) No. 3006 of 2017 on 05.12.2017, the respondent-authorities could not turn around and contend that the appellant-writ petitioner should be disqualified on the ground of litigation history.
8. On the other hand, Sri Shailendra Singh Chauhan, learned counsel appearing on behalf of URRDA, while relying on the judgment of the Supreme Court, in Municipal Corporation, Ujjain and another vs. BVG India Limited and others1, would contend that the scope of judicial review in matters of tender evaluation is extremely limited; the appellant-writ petitioner has, admittedly, not filled in the column in the tender documents relating to current litigation; they had deliberately suppressed material information; the authorities were justified in treating their bids as non-responsive on this score; and since the appellant-writ petitioner's financial bids were not even opened, consequent on their technical bid having been rejected, the question, whether their financial bid was lower than that of the successful tenderer, is of no consequence; the appellant-writ petitioner's bid was held non-responsive strictly in terms of Clause 4.7 (i) of the Bid Documents; this Court would not sit in appeal over the decision of the tender-evaluation committee; and, since the learned Single Judge had rightly rejected the appellant-writ petitioner's claim and had upheld the action of the Department, interference in an intra-court appeal is not justified.
79. Before examining the rival submissions, urged by learned counsel on either side, it is useful to refer to certain clauses of the SBD. Section 2 of the SBD are the instructions to Bidders (ITB). Clause 4.2 thereunder requires all bidders to include the information and the documents with their bids in Section 3, Qualifications Information unless otherwise stated in the Appendix to ITB. Clause 4.2(i) requires information, regarding any litigation or arbitration during the last five years in which the bidder is involved, the parties concerned, the disputed amount etc, to be furnished. Clause 4.7 stipulates that, even though the bidders meet the qualifying criteria, they are subject to be disqualified if they have:
(i) made misleading or false representation in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements; and / or
(ii) record of poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failures etc; and / or
(iii) participated in the previous bidding for the same work and had quoted unreasonably high or low bid prices and could not furnish rational justification for it to the Employer.
10. Part-C of the SBD relates to 'Preparation of Bids', and Clause 12 thereunder relates to the 'Documents Comprising the Bid'. Clause 12.1 requires the bid submitted by the bidder to be in two separate parts. Part-I, called the 'Technical Qualification Part of Bid', is to comprise, among others, the qualification information, supporting documents, scanned copy of the original affidavit and undertaking as specified in Clause 4 of the ITB. Clause VII of Part- I requires the bidder to furnish any other information / documents required to be completed and submitted by bidders as specified in the Appendix to ITB. Clause VIII requires a scanned copy of the affidavit affirming that the information, he has furnished in the bidding document, is correct to the best of his knowledge and belief.
811. Section 3, which relates to 'Qualification Information', stipulates that the information to be filled in by bidders in the following pages will be used for purposes of post-qualification as provided for in Clause 4 of the Instructions to Bidders; and this information will not be incorporated in the Contract. Under Column 1.9 thereunder, the bidders were required to furnish information on current litigation in which the bidder was involved. The table thereunder reads thus:
Name of Other Cause of Litigation Amount
Party(s) dispute where (Court / involved (Rs. In
arbitration) Lakh)
12. Let us now, albeit in brief, examine the scope of interference, in proceedings under Article 226 of the Constitution of India, with the evaluation of tenders, and awarding of contracts pursuant thereto. Courts must remain conscious that the scope of judicial review in matters, regarding the validity of the qualification requirements stipulated in the tender notification, is extremely limited. In economic and commercial matters, decisions are taken by the government or its instrumentalities keeping in view several factors, and it is not possible for the Courts to consider competing claims and conflicting interests, and conclude which way the balance tilts. There are no objective, justiciable or manageable standards to judge these issues nor can such questions be decided on a priori considerations. (Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal2). All that the participating bidders are entitled to is a fair, equal and non discriminatory treatment. (Maa Binda Express Carrier v. North- East Frontier Railway3; Tata Cellular v. Union of India4; Raunaq International Ltd. v. I.V.R. Construction Ltd.5; and Jagdish Mandal6).
13. The Court does not sit in appeal, but merely reviews the manner in which the decision was made. Although the terms of the invitation 9 to tender is not open to judicial scrutiny as it is in the contractual realm, Courts can examine the award of contract, by the Government or its agencies, to prevent arbitrariness or favouritism. (Noble Resources Ltd. vs. State of Orissa7; Binny Ltd. v. V. Sadasivan8; G.B. Mahajan v. Jalgaon Municipal Council9; Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa10; Directorate of Education v. Educomp Datamatics Ltd.11). There are inherent limitations in the exercise of judicial review of contractual powers as the Government must have the freedom of contract and a free-play in the joints. The duty to act fairly will vary in extent, depending upon the nature of cases to which the said principle is sought to be applied. The State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose has not been exercised for collateral purposes or in infringement of Article 14. (Tata Cellular4).
14. 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. The limited scope of judicial review by the High Court envisages examination of the question whether there is any material irregularity in the decision making process or whether the decision to reject the tender is irrational, unreasonable or arbitrary. If the decision relating to the award of contract is bonafide and in public interest, Courts will not interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. The power of judicial review will not be invoked to protect private interest at the cost of public interest or to decide contractual disputes. The tenderer or a contractor with a grievance can always seek damages in a civil court. (Jagdish Mandal6; Sterling Computers Ltd12; Tata Cellular4; Raunaq International Ltd.5;
10Air India Ltd. vs. Cochin International Airport Ltd13; Association of Registration Plates vs. Union of India14; and B.S.N. Joshi v. Nair Coal Services Ltd15).
15. Commercial transactions, of a complex nature, involve balancing and weighing all relevant factors, and a final decision is taken on an overall view of the transaction. (Air India Ltd.13). It is common knowledge, in the competitive commercial field, that technical bids, pursuant to the notice inviting tenders, are scrutinised by technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be left to be assessed by experts. (Municipal Corporation, Ujjain and another1; Montecarlo Ltd. v. NTPC Ltd.16).
16. The High Court should, normally, exercise judicial restraint unless illegality or arbitrariness, on the part of the employer, is apparent on the face of the record. (B.S.N. Joshi15; Jagdish Mandal6). The award of 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. (Air India Ltd.13). But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down, and cannot depart from them arbitrarily. The Court can examine the decision making process, and interfere if it is found vitiated by malafides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. (Air India Ltd.13). While contractual matters are not beyond the realm of judicial review, its application is limited (Noble Resources Ltd.7; Indian Oil Corpn. Ltd. v. Amritsar Gas Service17; and LIC of India v. Escorts Ltd.18) primarily to the infirmity in the decision making process, and whether it is reasonable 11 and rational or arbitrary and in violation of Article 14 of the Constitution of India. (Sterling Computers Ltd12).
17. The lawfulness of the decision of the Tender issuing authorities can be questioned on very limited grounds, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. (Central Coalfields Ltd. vs. SLL-SML19; Municipal Corporation, Ujjain1). Exercise of power of judicial review would be called for, if the approach is arbitrary or mala fide, or the procedure adopted is meant to favour some one. The decision-making process should ensure that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document, or subserves the purpose for which the tender is floated, Courts should exercise restraint. Technical evaluation or comparison by the Court is impermissible. The owner should be allowed to carry out the purpose, and should be allowed some free play in the joints. (Montecarlo Ltd.16; Municipal Corporation, Ujjain1).
18. Courts are generally, slow to interfere in such matters, unless it is shown that the decision is tainted by lack of fairness in procedure, illegality and irrationality. Judicial review is concerned with reviewing not the merits of the decision by an executive authority, but the decision making process itself. (Gharda Chemicals Limited vs. Central Warehousing Corporation20; Indian Railway Construction. Ltd. v. Ajay Kumar21). The actions of the State or its instrumentalities are amenable to judicial review only to the extent that they must act validly for a discernible reason, and not whimsically for any ulterior purpose. If the State or its instrumentalities act reasonably, fairly and in public interest in awarding the contract, interference by the Court is limited. (M/s. Michigan Rubber (I) Ltd. vs. The State of Karnataka22). A discretion should be conceded to the authorities, entering into contracts, giving them liberty to assess the overall situation for the 12 purpose of taking a decision as to whom the contract should be awarded, and on what terms. If the decisions have been taken in a bona fide manner, although not strictly following the norms laid down by Courts, such decisions are upheld on the principle that Courts, while judging the validity of executive decisions, must grant certain measure of freedom of "play in the joints" to the executive. Judicial interference, in such cases, would amount to encroachment on the exclusive right of the executive to take a decision. (Sterling Computers Ltd.12; Municipal Corporation, Ujjain1).
19. The Government must have freedom of contract. A free play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. The decision must, however, be free of unreasonableness or arbitrariness. It must not be affected by bias or actuated by mala fides. The Court is entitled to investigate the action taken by the authority to ascertain whether or not they have taken into account matters which they ought not to have taken into account or, conversely, have refused to take into account or neglected to take into account matter which they ought to take into account. Once this question is answered in favour of the authority, it may still be possible to say that, although the authority had confined its decision within the four corners of matters which they ought to consider, they have, nevertheless, come to a conclusion so unreasonable that no reasonable authority could ever have come to. In such a case also, the Court can interfere. (Dhingra Construction Co. vs. Municipal Corporation of Delhi23; Tata Cellular4; R. v. Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd24).
20. Even in contractual matters, a public authority does not have unfettered discretion, and while some extra discretion is to be conceded to such authorities in contracts with a commercial element, they are nonetheless bound to follow the norms recognised by Courts, while dealing with public property, to avoid unreasonable and 13 arbitrary decisions being taken by them. While the authority has certain elbow room in exercising its discretion in contractual matters, the discretion conferred on them must be exercised within the four corners of the law, and not violate Article 14 of the Constitution. (Union of India v. Dinesh Engineering Corpn25; Dhingra Construction Co.23).
21. If the scope of review is too broad, agencies are turned into little more than a medium for transmission of cases to the Courts. That would destroy the value of the agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. 'It makes judicial review of administrative orders a hopeless formality for the litigant. It reduces the judicial process in such cases to a mere feint. (Bernard Schwartz, in Administrative Law, 2nd Edn., p.58426; Dhingra Construction Co23).
22. Before interfering in tenders or contractual matters, in the exercise of its power of judicial review, the Court should pose to itself the following questions : (i) Whether the process adopted or decision made by the authority is malafide or is intended to favour someone or the process adopted or the 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 the relevant law could have reached'; and (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference in proceedings under Article 226 of the Constitution of India. (Jagdish Mandal6; M/s. Michigan Rubber (I) Ltd.22; Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd.27; Himachal Pradesh Housing and Urban Development Authority v. Universal Estate28; and Tejas Constructions & Infrastructure (P) Ltd10). In 14 the absence of allegations of malafides in their conduct, the Court must proceed on the footing that the State or its instrumentalities have acted bonafide. (Star Enterprises v. City and Industrial Development Corpn. of Maharashtra Ltd29).
23. Courts can interfere when the terms of invitation to tender or the award of contract is arbitrary, discriminatory or malafide, or if it has no nexus with the object it seeks to achieve. The power of judicial review should be exercised with great care and circumspection, and not merely because it feels the measure to be incorrect. Judicial intervention would be warranted only when overwhelming public interest so requires it. (Dhingra Construction Co.23; Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corpn30; Educomp Datamatics Ltd.11; MP Oil Extraction v. State of MP31; Air India Ltd13).
24. The Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Government has acted fairly, even if it has faltered in its wisdom, the Court cannot, as a super auditor, take them to task. The function of judicial review is limited to testing whether the action has been fair and free from the taint of unreasonableness, and has substantially complied with the norms. (Fertiliser Corporation Kamgar Union (Regd.), Sindri v. Union of India32; Raunaq International Ltd5). There are inherent limitations in the exercise of the power of judicial review. The right to choose cannot be considered as an arbitrary power. Judicial quest has been to find the right balance between discretion to decide matters and the need to remedy any unfairness. (Tata Cellular4; Raunaq International5 Ltd.). Judicial review of contractual transactions by Governmental bodies is permissible only to prevent arbitrariness, favouritism or use of power for collateral purposes. (Asia Foundation & Construction Ltd v. Trafalgar House Construction (I) Ltd33).
1525. It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority in coming to its conclusion. The Court should, ordinarily, exercise judicial restraint unless the threshold of malafides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met. (Municipal Corporation, Ujjain1).Evaluating tenders and awarding contracts are essentially commercial transactions/contracts. If the decision relating to award of contract is in public interest, the Courts will not, in the exercise of the power of judicial review, interfere even if a procedural aberration or error in awarding the contract is made out. Attempts by unsuccessful bidders with an artificial grievance, and to get the purpose defeated by approaching the Court on some technical and procedural lapses, should be handled by Courts with firmness. Exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. (Municipal Corporation, Ujjain1).
26. Bearing the aforesaid principles in mind, let us now examine whether the learned Single Judge was justified in refusing to interdict the action of the respondents in rejecting the appellant-writ petitioner's bids at the technical evaluation stage.
27. It is not in dispute, and is in fact the reason why the writ petitions filed by the appellant-writ petitioner were dismissed, that the appellant-writ petitioner had left the table below column 1.19 blank / unfilled. While the Notes, relating to the Form of Qualification Information in Section 3, stipulates that the information to be filled in by bidders in the pages (which will include Clause 1.9) would be used for purposes of post- qualification, the appellant-writ petitioner's bids were rejected at the technical evaluation stage itself. Sri Shobhit Saharia, learned counsel for the appellant-writ petitioner, would submit that, on the date on which the appellant-writ petitioner's bids were technically evaluated on 15.09.2018 (in two of the four writ petitions), there 16 was no litigation pending in courts in which the appellant-writ petitioner was involved; and since Clause 1.9 was to be used only for the purposes of post-qualification, the mere fact that the table, relating to Column 1.9, was left blank was of no consequence, since there was no litigation pending even on the date the appellant-writ petitioner's bids were first evaluated on 15.09.2018.
28. While Clause 1.9 requires information of current litigation, in which the bidder is involved, to be furnished, Clause 4.7(ii) of Section 2 of the SBD refers to litigation history. The learned Single Judge had upheld the action of the respondent both under Clauses 4.7(i) and (ii) of Section 2 of the SBD. The action of the respondent-Department, in rejecting the appellant-writ petitioner's bids at the technical evaluation stage, was upheld on the ground that the appellant-writ petitioner had made misleading representations in the forms submitted by them as proof of the qualification requirements.
29. As noted hereinabove, the advertisement issued, inviting tenders, required the bids to be submitted on various dates. In so far as these four appeals are concerned, the last date for submission of the bids, in respect of three packages, was 06.09.2018; and in respect of one package was 29.08.2018. The appellant-writ petitioner submitted their bids on the last date for submission of bids i.e. on 29.08.2018 and 06.09.2018. While they claim to have filed an application seeking withdrawal of Writ Petition (M/S) No. 3006 of 2017 on 05.09.2018, the fact remains that the writ petition was dismissed as withdrawn only thereafter on 07.09.2018, and the said information was furnished to the respondent-Department only on 10.09.2018. In effect, Writ Petition (M/S) No. 3006 of 2017 was still pending on the file of this Court when the appellant-writ petitioner submitted their bids on 29.08.2018 and 06.09.2018. They were, therefore, obligated to disclose this information in the table under Clause 1.9 of Section 3 of the SBD.
1730. While Clause 4.2(i) required all bidders to submit information regarding any litigation, during the last five years, in which the bidder was involved, Clause 4.7(i) stipulated that the bidder shall be subject to disqualification if they make misleading or false representation in the forms, statements, affidavits and attachment in proof of the qualification requirements filed by them. While the bidders are also liable to be disqualified, if they have 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, it does appear that, in the present case, the appellant-writ petitioner was held technically disqualified on the ground that they had not filled in the table in Clause 1.9 of Section 3 of the SBD, and had thereby failed to disclose the current litigation i.e. the pendency of Writ Petition (M/S) No. 3006 of 2017 before this Court.
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, Ujjain1, 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 18 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 BVG India Ltd.1, 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. 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' 19 of their obligation to furnish this vital information in their bid application forms.
34. Sri Shobhit Sahria, learned counsel for the appellant-writ petitioner, would emphasize on the appellant-writ petitioner having fulfilled all other technical qualifications, and would submit that since this litigation (i.e. Writ Petition (M/S) No. 3006 of 2017) was against the very same Department, and they were aware of such litigation, it could not be said that the appellant-writ petitioner had suppressed material facts from them; and the question of suppression of material facts would arise only if these facts were not to the knowledge of the respondent-Department.
35. While the respondent-Department has denied the aforesaid averments, urged on behalf of the appellant-writ petitioner, it must be borne in mind that this Court does not sit in appeal over the decision of the technical evaluation committee and, as long as the decision of the technical evaluation committee is fair and reasonable, this Court would not, in the exercise of its power of judicial review under Article 226 of the Constitution of India, interfere with such decisions.
36. Whether the appellant-writ petitioner should have been disqualified on this score, or whether a lenient view ought to have been taken, are matters for the respondents to decide, and not for this Court to direct. Having failed to disclose, in Clause 1.9 of Section 3 of the SBD, details regarding pendency of Writ Petition (M/S) No. 3006 of 2017, the appellant-writ petitioner cannot, thereafter, be heard to contend that, since this information was required to be used for the purpose of post-qualification and as there was no litigation pending on the first day of evaluation on 15.09.2016, their technical bids should have been treated as responsive.
2037. Even otherwise the jurisdiction which this Court exercises, in an intra-court appeal, is extremely limited. The learned Single Judge is not a Court subordinate, since both he and the Division Bench exercise jurisdiction only under Article 226 of the Constitution of India. If two views are possible, and the Division Bench is satisfied that the view taken by the learned Single Judge is a possible view, it would refrain from interference even if it is satisfied that the other possible view, canvassed before it by the appellant-writ petitioner, is more attractive. It is only if we were to hold that the view taken by the learned Single Judge is not a view which could have been taken at all, would interference be warranted. We find it difficult to hold that the view taken by the learned Single Judge, in upholding the action of the respondents in rejecting the bids submitted by the appellant-writ petitioner, is not even a possible view.
38. We see no reason, therefore, to interfere with the orders under appeal. The appeals fail and are, accordingly, dismissed.
(N.S. Dhanik, J.) (Ramesh Ranganathan, C.J.)
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