JUDGMENT :

Shampa Sarkar, J.

1. The writ petition has been filed challenging the rejection of the petitioners’ bid in the technical evaluation round by the tendering authority of the Damodar Valley Corporation (DVC). The decision was communicated to the petitioners via e-mail on July 12, 2024. The ground for such rejection was poor performance at Raghunathpur Thermal Power Station (RTPS).

2. The Notice Inviting Tender (NIT) was for, empanelment of transportation agencies with rate contract for evacuation of 40 LMT ash from ash ponds MTPS, DVC, and nuisance free transportation along with disposal of the same in abandoned open cast mines/Store Quarries/NHAI project sites/ any other designated places outside plant boundary of MTPS, DVC. The NIT was published on March 6, 2024, in respect of Mejia Thermal Power Station (MTPS). The technical qualification as per the conditions of the NIT was that, the bidder should have the experience of completing similar works within India during the last 7 years, ending on the last day of the month previous to the one in which offer was invited.

3. Mr. Datta, learned Advocate for the petitioners submitted that page 254 of the writ petition would indicate that the petitioners’ bid had been filed on time and received by the authority. Referring to the various documents annexed to the writ petition, the petitioners contended that they had vast experience in executing similar nature of work in the past for different thermal power stations under DVC. The reason assigned by the authority for cancellation of the bid was arbitrary and contrary to the terms and conditions of the NIT. The technical evaluation was rejected on the ground of poor performance in the work awarded by a tendering process of 2021 at RTPS. The petitioners had themselves prayed for closure of the contract on February 21, 2024, as they were unable to execute the work due to local disturbances. Instead, penalty was imposed on March 20, 2024 and the bank guarantee was invoked on March 21, 2024. Thus, all the steps that were taken in respect of the alleged poor performance in RTPS were subsequent to publication of the NIT dated March 6, 2024. The disqualification clause 37(b) of the NIT provided that the bidder would be disqualified, if either the bidder or the constituent partner of the bidder was found to have record of poor performance during the past five years across DVC as on the date of publication of the bidding document. Poor performance would include abandoning the work, rescission of the contract for reasons attributable to the non-performance of the contractor, inordinate delay,history of litigation or financial bankruptcy, etc. In the petitioners’ case, the inability to perform was not on account of either delay or negligence on their part.

4. Records of poor performance after March 6, 2024, would not be relevant for technical evaluation of the present bid. Referring to Clause 29 of the conditions, it was submitted that the authority had enquired as to whether the performance rating of the petitioners along with some other bidders were unsatisfactory or not, and whether those bidders could or could not be recommended for the next two years. The answer to such query was in the negative. The communication indicated that, that, there was no record of unsatisfactory work against the petitioners. Clause 29 of the conditions would not be attracted in such a case. The authority was of the view that the petitioners had not got an unsatisfactory rating in a single contract, for two consecutive bidding cycles, and as such, could not be kept away from participating in the bidding process. By referring to Clause 37, it was contended that the tendering authority had enquired about the petitioners’ performance in other DVC projects. Coal Mines Associated Private Limited, the alleged L-1 bidder, who was the favoured contractor of the authority was not mentioned in the list. In other words, only to avoid any negative comment against the said bi