Judicial review in tendering must focus on lawfulness over soundness; a bidder's failure to disclose critical past conduct can lead to disqualification without notice.

JUDGMENT

Vipin Sanghi, J. (Oral)--This writ petition, as originally filed, claimed reliefs (a) to (f). However, on the very first date of hearing i.e. 24.09.2020, the learned senior counsel for the petitioner on instructions made a statement that the reliefs in the present petition be confined to reliefs (a), (b), (e) & (f). The said surviving reliefs read as under:

"a) direct Respondent no. 2 to cancel its disqualifications of the Petitioner dated 28.08.2020;

b) direct Respondent no.2 to allow Petitioner to submit its financial bid in tender no.MSDE 18011/06/CBT-TENDER/2020-TTC;

e) pass such other order orders as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

f) pass an order for the cost of the petition in favour of the Petitioner"

2. On 15.06.2020, the respondent no.2 i.e. Directorate of General of Training (DGT) issued a tender bearing no. MSDE-18011/06/CBTTENDER/2020-TTC for selection of service providers to conduct end-to-end computer based tests under its various schemes. Prior to the issuance of this tender, the respondent no.2 had earlier issued a similar tender on 12.02.2019 which was, however, subsequently withdrawn. Thus, the nature and scope of work envisaged under the tender dated 15.06.2020 was the same as that envisaged under the earlier tender dated 12.02.2019. However, the pre-qualification criteria and the Quality & Cost Based Selection (QCBS) ratio was changed in the tender dated 15.06.2020. This NIT-issued on 15.06.2020, required the bidders to, inter alia, submit a declaration with regard to their non-blacklisting in Form `B' annexed with the NIT. The contents of the said declaration as contained in Form `B' reads as under:

"Form B

3. The petitioner, along with the other bidders, submitted its bids in response to the aforesaid NIT. The petitioner also submitted the aforesaid declaration in Form `B'. The case of the petitioner is that separate financial and technical bids were required to be submitted and the petitioner accordingly submitted both its technical and financial bids. The petitioner claims that in the process of evaluation of technical bids, it was found qualified. Thereafter, without any prior notice or opportunity of hearing to it, the respondents proceeded to disqualify the petitioner and proceeded to award the tender to M/s NSEIT Ltd., who was impleaded as a