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3. The criteria to be fulfilled by bidder/contractor is prescribed under Clause 4.5. The said clause inter alia prescribes that the contractor should possess required valid electrical license, Anti-termite license for execution of building electrification works and should have executed similar electrical works for a minimum amount as indicated in Appendix- I of the ITB in any one year.
4. As per the instructions to the bidder, the information and documents required to be included with their bids to be submitted are prescribed under Clause 4.3. As per clause 4.4, bids from joint ventures are not acceptable to qualify for the award of the contract, bidders will have to fulfill the criteria prescribed under Clause 4.5 A of the ITB.
7. The learned Single Judge heard the matter and upon consideration of the submissions made and upon perusal of the pleadings, came to a finding that although the respondent No. 3 did not have electrical license but it did have a tie-up with one M/s Solitaire Enterprise and which tie- up was accepted by the Tender Evalution Committee as Page | 5 satisfactory as per the ITB. The learned Single Judge held that the employer had accepted tie-ups with third party when the bidders did not have valid Anti-termite license and electrical license and such relaxation was granted uniformly to all the bidders. The learned Single Judge held that the appellant was also a beneficiary of such a relaxation. Though the appellant did not have Anti-termite license, its tie-up with Sri Abbas Shubhan as a sub-contractor was accepted by the Technical Evaluation Committee. The learned Single Judge held that the requirements under Clause 4.5, Clause 4.5(f) and 4.3(xi) are separate and distinct. It was held that the employer has the autonomy to fix the terms and conditions and the power to grant relaxation to tender conditions without any discrimination by permitting tie ups for the purpose of fulfillment of the conditions of Clause 4.5.7(a) and such benefit has also been accrued to the appellant. Accordingly, the learned Single Judge dismissed the writ petition declining to interfere with the findings of the Tender Committee considering the respondent No. 3 to be the L-1. The learned Single Judge did not find any illegality in the decision making process and accordingly the writ petition was dismissed. Being aggrieved, the present appeal is preferred assailing the impugned Judgment and Order dated 06.06.2022 passed in WP(C) No. 4044/2021. The appeal has been preferred on the following grounds:-
12. For that, Learned Single Judge has failed in appreciating the fact that acceptance of non responsive bid will amount to prejudice to other bidders and the contract work will be sub standard.
13. For that, Learned Single Judge has failed in appreciating the fact that the tender committee has adopted a unreasonable and illegal procedure to evaluate the technical bid of the respondent no.-3 with mala-fide intention.
14. For that, as per the bid documents, contractor should have license for conducting electrical and anti termite work. The respondent no. 3 does not possess Page | 8 the same hence he decided to do the work by sub contracting and to this effect he has available it is found that the respondent -3 did not furnish any electrical license and anti termite license of his own which are mandatory documents to be acquired by the bidder, as per the bid.
The relevant portion of the bid, clause 4.5.A.f, says:
"the contractor should posses required valid electrical license, anti termite license for the executing the building electrification works and should have executed similar electrical works for a minimum amount as indicated in Appendix-I in anyone year."
While the tender committee has accepted the technical bid of the respondent-3 put a condition that the respondent-3 will not be given the facility of sub contracting, resulting In that the licenses of the sub contractor submitted by the respondent-3 will not be counted. Now the respondent-3 is responsible to do the whole contract work on his own. Since respondent-3 did not furnish electrical and anti termite license of his own hence the bid of respondent-3 is non responsive. If the contractor is awarded the tendered work, who is a non responsive bidder, it will be illegal and fatal to the justice and the common public will be the sufferer. As such, sub contracting having been bared, the bid of the Respondent-3 having not met the eligibility criteria as mentioned in the clause.