A false statement which goes to the root of the tender, inasmuch as it hits the essential qualification requirements thereof, was rightly not pardoned by the respondent-Authorities in the present case.

JUDGMENT :

(Sabyasachi Bhattacharyya, J.) :

1. The petitioners have challenged an order of debarment/blacklisting of the petitioners for a period of five years in respect of transactions with the respondent-Authorities. Learned senior counsel for the petitioners argues that the impugned blacklisting tantamounts to a civil death of the Company. If the company remains debarred from participating in the tender floated by the respondents, which are Government authorities, the petitioner-Company will suffer a stigma and will be precluded from other similar tenders floated by other authorities as well, because it is an usual clause in all such tenders that a participant cannot offer a bid if blacklisted previously.

2. It is submitted that, although a hearing was given to the petitioner, the order of blacklisting was passed mechanically without assigning any reason in terms of Clause 9.7.1 of the Tender Document as well as in contravention of principles of natural justice.

3. It is further submitted that since the provision of blacklisting is a punitive one, the same should be interpreted strictly.

4. It is admitted by the petitioners that the petitioners have previously suffered sudden set-backs, including one previous tender being recalled, another resulting in forfeiture of the petitioners’ earnest money and the non-participation of the petitioner after initiation in a third tender; but, none of those are germane in terms of the present tender.

5. However, admittedly, the petitioner no. 1-company had previously entered a joint venture with a third party and the said joint venture was blacklisted for a term of five years in an earlier tender.

6. The petitioner has participated in the present tender by forming a joint venture with a different company, which had no nexus with the said earlier tender.

7. In terms of the conditions of the present tender, the bidder was to disclose that none of the contracts of the bidder or any member of the bidding group or the bidding consortium have been terminated or foreclosed due to their default.

8. Scrutinizing the said provision, that is 7.8.3(a) of the Notice Inviting Tender (NIT) closely, the joint venture, which is comprised of the petitioner and a third party in the present tender process, was never terminated or foreclosed previously. The joint venture which was foreclosed, being comprised of the petitioner no.1 and an entirely different company, was a separate entity altogether from either the petitioner individually or the present joint venture, of which the petitioner is a component.

9. Thus, it is argued that there is no applicability of Clause 9.7.1(c) of the Techno Commercial Proposal attached with the NIT, which provides that the bid security shall be forfeited and appropriated by the respondent-authorities if any of the documents submitted by a bidder as a part of the bid is found to be not genuine or forged or any of the claims, confirmations, statements or declarations of the bidder is found to be incorrect or inconsistent, including the declaration given under Clause 7.8.3 or in case of any material misrepresentation of facts at any point of time during the bid evaluation process as, in the present case, there is no false statement or incorrect statement or claim made in the bid document in terms of Clause 7.8.3 or its subclauses.

10. Learned senior counsel for the petitioner cites Aquafil Polymers Co. Pvt. Ltd. Vs. Gujarat Urban Development Company Limited, reported at MANU/GJ/1979/2022, where it was observed that the conditions in the tender document which could be said to be penal in nature have to be construed and applied strictly. In the said case, a Division Bench of the Gujarat High Court had observed that when the tender bid contains eligibility criteria, the corresponding obligation to satisfy the criteria arises. However, where the tender document does not provide specifically about certain disclosure, the authorities cannot scrutinize the tender document for what is n