The validity of the affidavit as a certificate in satisfying the eligibility criteria under Clause 3.1.3 of the Departmental Letter No. 4842 dated 14.11.2014.

RAJEEV RANJAN PRASAD, J.

1. This writ application has been preferred seeking the following reliefs:

"(i) Quashing of the proceedings of the Technical Bid Evaluation Committee dated 21.06.2018 (in so far as it relates to the petitioner) as contained in Annexure-1 whereby the Technical Bid of the petitioner has been rejected for lack of eligibility in terms of Clause 3.1.3 of the Departmental Letter No. 4842 dated 14.11.2014;

(ii) Direction upon the Respondents to consider and open the Financial Bid of the petitioner after its Technical Evaluation; and

(iii) Further direction upon the Respondents restraining them to finalize the Tender and/or restraining them from creating any third party interest/right during the pendency of the instant writ application."

2. It appears that during pendency of the writ application the financial bid was opened and one Swapnil Kumar Singh became the successful Bidder and he was declared successful. The work order was issued to him, he started the work and completed about 16 % of the work as on 14.07.2018. For this reason he filed Interlocutory Application No. 5782 of 2018 to allow him to join the writ application as respondent no. 6. The Interlocutory Application being No. 5782 of 2018 has already been allowed vide order dated 16.08.2018. The respondent no. 6 has also filed one I. A. No. 2 of 2019 for vacating the order of stay dated 17.07.2018 passed by this Court while hearing the present writ application.

With consent of the parties, this matter has been heard for final disposal.

3. Mr. Prabhat Ranjan, learned counsel representing the petitioner submits that the petitioner fulfilled all the terms and conditions of the Notice Inviting Tender (NIT) Document at the Technical Bid stage but his Technical Bid of the petitioner has been rejected on the ground that he lacks the eligibility in terms of Clause 3.1.3 of the Departmental Letter No. 4842 dated 14.11.2014.

4. Learned counsel submits that the reliance of the Department on the Departmental Letter is wholly misconceived, illegal and unsustainable for the following reasons.:-

"(i) The Departmental Letter No.4842 dated 14.11.2014, which is being relied upon by the respondents for rejecting/disqualifying the petitioner was neither the part of the Notice Inviting Tender or the SBD and could not have been relied upon for disqualifying the petitioner;

(ii) Even the reliance on the Clause 3.1.3 of the Departmental Letter for rejecting the Technical Bid is also misplaced in as much as the Clause is not attracted in the admitted facts of the case;

(iii) The rejection order is completely non-speaking, vague and cryptic.

(iv) Before rejecting the technical Bid on the issue of the eligibility of key equipment etc., the petitioner was entitled as a matter of right, one opportunity of clarification and modification in terms of the Letter No. 536 dated 13.06.2013."

5. Learned counsel has placed before this Court the statements made in the counter affidavit to demonstrate that so far as the documents as contained in Annexure-3 are concerned, those were admittedly uploaded with the Tender, therefore, the respondents were not justified in rejecting the case of the petitioner on the ground that he was not having required certificate in terms of para 3.1.3 of the letter no. 4842 dated 14.11.2014.

6. Learned counsel submits that para 3.1.3 of the Bid Document contains one of the evaluation criteria at the Technical Bid stage which provides that tenderer should make available the certificate of availability of the minimum essential key equipments for the said work. The Tenderer who either 'owned' or 'leased' or procured such minimum essential equipments should submit a certificate thereof and the same is required to be uploaded. Learned counsel submits that the petitioner had uploaded the certificate of M/s Baba Bateshwar Construction Private Limited wherein the said company had promised to make available minimum required equipments to the petitioner in case he succeeds