Disqualification from tender processes necessitates adherence to procedural fairness; blacklisting without notice is arbitrary and invalid.

JUDGMENT

Jasmeet Singh, J. (Oral)--The three writ petitions have a common thread and overlapping factual matrix as well as legal issues. In addition, the parties to the three writ petitions are also the same, and hence, all 3 writ petitions have been taken up together and are being disposed of by this common judgment.

2. The petitioner is a registered partnership firm engaged in the business of construction of road, buildings, bridges and other infrastructure projects across the country. The respondent No.1 is a PSU of the Government of India, involved in execution of various works of Central Departments and its PSUs. Respondent No. 2 is the officer of respondent No. 1 and the tender inviting authority.

3. With this common background, we now reproduce the factual matrix of the individual Petitions.

W.P.(C) 5426/2021

4. This writ petition has been filed seeking the following substantial prayers:

a. "Issue a writ in the nature of Mandamus, or any other appropriate WRIT, order or direction, thereby, holding the disqualification of the Petitioner as illegal and arbitrary; and direct the Respondents No.1 and 2 to open the Financial Bid of the Petitioner pursuant to NIT No. NPCC/PROJECTS/EMRS-JH/21/-22/046 (3rd call) dated 23.03.2021 for the execution of the work of "Construction of Eklavya Model Residential Schools (EMRS) at Torpa & Murhu (Dist. Khunti) Jharkhand";

b. Issue a writ in the nature of Mandamus, or any other appropriate WRIT, order or direction, thereby holding the qualification of the Respondent No.3 in the technical evaluation as illegal and arbitrary pursuant to NIT No. NPCC/PROJECTS/EMRS-JH/21/-22/046 (3rd call) dated 23.03.2021 for the execution of the work of "Construction of Eklavya Model Residential Schools (EMRS) at Torpa & Murhu (Dist. Khunti) Jharkhand"; and

5. Respondent No. 1 vide NIT No. NPCC/PROJECTS/EMRS-JH/21-22/046 dated 23.03.2021 invited bids for execution of work, namely, "Construction of Eklavya Model Residential School (EMRS) at Torpa & Murhu (District Khunti) Jharkhand." The estimated cost of work was Rs.38.13 Crores. As per Clause 2.14 of 'The Pre-qualification and Instructions to Bidders', the bidders were required to visit the site and certify the said visit by the concerned Zonal Manager. The failure to provide certificate may disqualify the bidder from the tender process.

6. It is pertinent to mention that this was the third tender call notice floated by the Tendering authority for the same project. Before this, the respondent Nos.1 & 2 had floated 2 tenders for the same project. The Petitioner did not participate in the first tender, and for reasons best known to the respondent, the first tender was cancelled. The second tender No. NPCC/PROJECTS/EMRS-JH/21-22/040 was issued on 12.03.2021, wherein the Petitioner had submitted the Site-Visit report dated 15.03.2021 as required under Clause-2.14(e) of the Notice Inviting Tender. The said Tender process was subsequently recalled vide letter dated 23.03.2021, for insufficiency of the number of bidders. The Respondent No.2 immediately, on the same date, called for fresh bids under the present tender.

7. Subsequent to the floating of the third tender, the petitioners filed its bid on 28.04.2021, and deposited the earnest money of Rs.48,13,000/-. The petitioner submitted the certificate dated 15.03.2021 in compliance of Clause 2.14(e). Only two bidders had participated in the tender, namely, the petitioner and the respondent No. 3. The respondent No. 1 uploaded the comparative statement of the technical evaluation on 31.03.2021, wherein the petitioner's bid had been dis