The process of tender must be fair and non-arbitrary, and certain pre-conditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and resources to successfully execute the work.

ORDER :

The petitioners are before this Court calling in question a communication dated 02-11-2023 by the 1st respondent/ Department of Backward Classes Welfare to the Managing Director and Expression of Interest Accepting Authority and the tender notification dated 05.12.2023, issued by the second respondent.

2. Facts, adumbrated are as follows:-

The petitioners are the contractors in the business of drilling and carrying out digging of bore-wells under the 1st respondent/Department for several years. The 2nd respondent notifies/invites Expression of Interest for empanelment of drilling agency for drilling 165 mm dia bore-wells on ‘no water no money basis’ under the scheme by name ‘Ganga Kalyana’ for the years 2020-21, 2021-22 and 2022-23 for ten development Corporations coming under the 1st respondent/Department. After calling for Expression of Interest, it is the case of the petitioners that eligibility criteria as was notified in the Expression of Interest / tender has undergone a change and the work experience is completely removed. The removal of work experience leads to the very Expression of Interest being contrary to the standard tender documents of the State notified on 06-08-2005 as modified from time to time. It is on this score of work experience itself being taken away for drilling of bore-wells, the petitioners have preferred the subject petition.

3. Heard Sri Rahul S.Reddy, learned counsel appearing for the petitioners, Sri Spoorthy Hegde, learned High Court Government Pleader appearing for respondent No.1 and Prof. Ravivarma Kumar, learned senior counsel appearing for respondent No.2.

4. The learned counsel appearing for the petitioners would vehemently contend that the petitioners are the participants in the empanelment process pursuant to Expression of Interest notified on 05-12-2023. After issuance of the tender and the last date for assessment of technical bid and financial bid, the work done certificate or experience of who can apply for tender for empanelment is itself changed. With this change, the very calling of tender document is contrary to the Rules with specific reference to Rule 27 of the Karnataka Transparency in Public Procurements Rules, 2000 (hereinafter referred to as ‘the Rules’ for short) and the Standard Tender Documents prescribed by the Government for all tenders that would be notified in the State. He would seek quashment of the entire tender process on the aforesaid score.

5. Per contra, the learned senior counsel Prof. Ravivarma Kumar appearing for respondent No.2 would vehemently refute the submissions to contend that this Court would not interfere at this stage of tender, unless it is found that the entire tender process is arbitrary. It is his submission that what is now being done is only an empanelment of eligible applicants pursuant to Expression of Interest. Once eligibility is considered, it is then, the tender would be awarded to those eligible persons for ten Corporations coming within the ambit of the 1st respondent. It is his further submission that the petitioners have no right to present the subject petition amidst consideration of Expression of Interest.

6. The learned counsel for the petitioner would join issue to contend that since 2nd respondent/Corporation has its operations State-wide, certain tenderers have knocked at the doors of Kalaburgi Bench of this Court and Kalaburgi Bench has granted an interim order of stay. Therefore, the learned counsel would submit that the petition be allowed and the process be directed to be redone.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

8. The afore-narrated facts are not in dispute. The only issue that arises for consideration is, whether Expression of Interest projected is contrary to law.

9. The 2nd respondent is the Managing Director