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29. Mr. Ashok Kumar Parija, learned Advocate General, with reference to the statement made in the further affidavit filed on behalf of opposite party No.3, while defending the attack on behalf of the petitioner on the ground of mala fide by incorporating the requirement of submission of an undertaking in Form-(S) under the pre-qualification condition, has submitted that the same was done following similar practice in the Central Government and other Public Section Undertakings („PSUs‟ in short). He has submitted, with reference to the said affidavit, that setting up ATS and its operation is a highly specialized job and there are limited players in the market. He has submitted that opposite party No.3 is willing to allow other available bidders/players in the country to participate in the present bid by deleting Clause-23, Form-(S) for the said new players/bidders by issuing appropriate notices in the present tender. Such a step, he contends, will not affect the bidders, who have participated in the present tender and it will only be for new players/bidders. He has however submitted that since the petitioner already participated in the bid process by submitting its bid, which has been found to be non-compliant by the Tender Evaluation Committee, it cannot be allowed to submit a fresh bid even if a corrigendum is issued by deleting the offending Clause-23, Form-(S) from the RFB. The sum and substance of his submission as regards Clause-23 and Form-(S) is that the same shall be deleted and new players/bidders shall be allowed to participate by issuance of appropriate notices, but not this petitioner as its bid has already been found to be non-compliant.

31. He has accordingly submitted that rejection of the bid by opposite party No.3 on 18.03.2024 does not suffer from any legal infirmity. He has argued that the petitioner had acknowledged the default on its part in making payment of the Bid Processing Fee as per Clause-2.9 and subsequently paid the GST amount of Rs.1800/- on 19.03.2024 (20.03.2024 mentioned in above paragraph) after the last date of submission of bid dated 16.03.2024. He has submitted that if the petitioner is allowed to participate in the bidding process by overturning the decision of the Tender Evaluation committee then it will amount to violating certain Clauses of the RFB including Clause-2.6(b), Clause-2.9

36. Mr. Gautam Misra, while defending the decision of opposite party No.3 to reject its bid on the ground of the bid being non-compliant in terms of Caluse-2.9 of the RFB has taken an exemplary stand befitting the stature of a Senior Counsel that the Pre-Qualification Condition Clause at Sl. No.23 of Table-2 read with Form-(S) of the RFB is indefensible. He has however relied on the Supreme Court‟s decision in case of N.G. Projects Ltd.(supra) to contend that the satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids and such authorities are aware of expectation from the tenderers while evaluating the consequences of non-performance. He submits that the writ petitioner has not been able to make out a case that the action of Technical Evaluation Committee was actuated by extraneous consideration or was mala fide. Only because the view of the Technical Evaluation Committee was not to the liking of the petitioner, such decision does not warrant for interference, he submits. He has referred to paragraphs-22 and 23 of the said judgment in support of his submission, which read as under:-

"22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e. not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.