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4. In view of the aforesaid contentions raised by the learned counsel for the parties and on perusal of the records, since the pleadings have been exchanged between the parties, with their consent the matter has been taken up for final disposal at the stage of admission.

5. The undisputed fact is that pursuant to E-tender notice published on 05.11.2014, the petitioner along with three others had submitted their bids and all of them having been qualified in technically bids, in financial bids, which were opened on 30.12.2015, the petitioner being the lowest one, the work order ought to have been issued in favour of the petitioner for execution of the work. But, on 29.01.2016, a report was called for by the Tender Inviting Authority from the Executive Engineer, Kalahandi (R&B) Division, Bhawanipatna on the performance of the petitioner, who submitted his report on 30.01.2016, which is evident from record at page 207 in Annexure-E to the counter affidavit filed by the opposite parties. In the performance report of ongoing works of the petitioner, it is stated "the performance of the contractor is unsatisfactory and poor". Therefore, in the proceedings of the Tender Committee meeting held on 15.02.2016 vide Annexure-F at page-209 of the brief it is observed as follows:

"The L1 bidder D.K. Engineering & Construction (Super Class Contractor) has disqualified as per ITB Clause-3.4(b) & clause 108 (b) & (d) of DTCN for past record of poor performance & inordinate delays in completion of previous works entrusted to them as per report of Executive Engineer, Kalahandi (R&B) Divn. Vide Lt. No.1074 dated 30.01.2016".

6. For better appreciation, Clause 3.4(b) of the Instructions To Bidders and Clause 108(b) & (d) of DTCN are quoted below:

7. As is borne out from the record, after the petitioner was found suitable, being the lowest bidder, on the basis of technical and financial evaluation made by the Tender Inviting Authority, subsequently, a report was called for from the Executive Engineer, Kalahandi (R&B) Division, Bhawanipatna with regard to the performance of the petitioner and on that basis it was decided not to entrust the work to the petitioner. The said inquiry could have been done prior to opening of the financial bid. Once, the financial bid was opened and known to everybody, that the petitioner was the lowest one, the Tender Inviting Authority could not have taken a decision to call for a report in order to disqualify the petitioner on the ground of past performance. Such action of the Tender Inviting Authority is also not correct otherwise, as the petitioner had submitted the details of the work awarded to it and executed by it under the Executive Engineer, Kalhandi (R&B) Division, Bhawanipatna on the basis of the agreements executed in the years 2009-10 and 2011-12. The contention raised by the learned Additional Standing Counsel, that past performance of the petitioner was poor, is belied by the documents available on the record to the effect that the petitioner has successfully executed the works and ongoing works within the extended period granted by the authority and, as such, neither any penalty has been imposed nor the work allotted in its favour has ever been cancelled, and payments in respect of work done have been made by the authority without any objection. In such view of the matter, the contention so raised that the petitioner had got poor performance in its past record cannot sustain in the eye of law.

The building was completed and thereafter the College is functioning there and the students are prosecuting their academic session. In respect of other two works it has been clearly spelt that the works have been completed. Prior to this stated the opposite parties never issued any show cause. So far relating to item no.2 "Construction of 367 seated Boys Hostel Building No.1 of Government College of Engineering, Kalahandi-Bhawanipatna", "Construction of 367 Seated Boys Hostel Building No.2 of Government College of Engineering, Kalahandi- Bhawanipatna", Construction of 367 Seated Girls Hostel Building of Government College of Engineering, Kalahandi-Bhawanipatna", "Construction of Workshop Building of Government College of Engineering, Kalahandi-Bhawanipatna", "Construction of Government of Engineering, Kalahandi-Bhawanipatna (Administrative Block)", "Construction of District Court Building at Nuapada" is in progress very fastly, and in none of these cases there were allegations and averments that the petitioner's work performance was poor and his contract was terminated and when there is no such allegation of termination of contract, the poor performance of contract does not arise. This is an afterthought, mischievous and mala fide attempt made by the opposite parties just to debar the petitioner from future tender bringing within the ambit of Clause 108 of DTCN."