Point of Law : Tender /Contract - allocation of full marks for the 'Financial Criteria' was not sustainable, for want of relevant documents submitted along with the Tender and this by itself would disqualify the 3rd Respondent, further deliberation with reference to the 'Experience Criteria' is not necessary to be carried forward.

JUDGMENT :

P.R. Ramachandra Menon, J.

1. Identification of the successful bidder, pursuant to an allegedly wrong decision making process, ignoring the specific terms in the Tender Notification, in an attempt to extend undue favour to the 3rd Respondent, is the subject matter of challenge in this writ petition. The main ground of challenge is that, the 3rd Respondent is not qualified both on the financial and experience criteria, as revealed from the documents uploaded by them along with the Tender.

2. The Respondent Bilaspur Smart City Limited ('BSCL' for short) floated Annexure-P/2 Tender dated 13.11.2020 for External Electrification with cable link in RCC Duct at Vyapar Vihar Smart Road, Bilaspur for Bilaspur Smart City with the 'estimated cost of work' at Rs. 1121.76 Lakhs. The project was to be completed within 4 months and the 'defect liability period' was 2 years from the date of handover. The bid was to be submitted in 3 envelopes – 'A', 'B' & 'C', where Envelope 'A' would contain the EMD, Bid-Security, Bid-Fees and Integrity Pact/Affidavit; Envelope 'B' would contain the documents pertaining to pre-qualification and technical evaluation; whereas Envelope 'C' would contain the financial bid. After issuing the Tender, the Respondent-BSCL issued Annexure-P/3 corrigendum dated 21.11.2020, whereby some material changes were brought in, particularly with regard to the experience in the work by replacing the relevant clause enabling also a participant who was proceeding with the ongoing works, instead of the necessity to have satisfactory completion of the work. The last date for submission of the On-line bid was 04.12.2020 and the bids were to be opened on 08.12.2020, which subsequently came to be adjourned to 05.01.2021.

3. The Petitioner, who is a partnership firm qualified in all respects, submitted the bid strictly in conformity with the terms and conditions of the Tender. The 3rd Respondent and another party were also in the forefront and on opening the bid on 05.01.2021, the 3rd Respondent was declared as L-1 while the Petitioner was placed at L-2. On coming across the various discrepancies and inconsistencies with regard to the credentials of the 3rd Respondent with reference to the documents produced, Annexure-P/5 objection was preferred by the Petitioner on 07.01.2021, pointing out that the 3rd Respondent was not qualified, having not satisfied the requisite parameters notified in the Tender. It was also specifically brought out that the allocation of 'full marks' (30) under the 'financial criteria' was not correct, as the turnover disclosed from the certificate issued by the auditor clearly revealed that the 3rd Respondent was having only less than 8.00 crores' of turnover during the past three years and hence eligible to get only 20 marks' under this head. This by itself would have pushed down the 3rd Respondent (who was given 75 marks) to be with only 65 marks and since the Tender clearly stipulated a minimum of 70 marks, the 3rd Respondent was liable to be disqualified. It was further pointed out by the Petitioner that, though in Annexure-P/2 Tender conditions, under the head 'Work Experience', the ongoing work to the requisite extent was also liable to be reckoned for awarding the marks as per Annexure-P/3 corrigendum issued, the yardstick to have “satisfactory completion” of the work was observed. In the said circumstance, the 3rd Respondent was not having the requisite experience as well and hence was liable to be disqualified.

4. The above objections were turned down by the Respondent-BSCL vide Annexure-P/1 dated 21.01.2021, whereby it was stated that the evaluation of the credentials was done by the Bid Evaluation Committee strictly in accordance with the terms of the Tender and that since the 3rd Respondent was having a turnover of 11.854 crores for the Financial Year 2018-19, it was above 8.00 crores, thus justifying allocation of 30 marks (full marks) under this head; adding that the decision of the Bid Evalu