A contractor declared as a non-performer must have the opportunity for representation prior to blacklisting; submitted bids prior to such declaration should be considered based on their merits.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done through hybrid mode.

2. The Petitioner- Redecon (India) Pvt. Ltd. has filed the present petition challenging the black listing letter dated 8th September, 2022 issued by the Respondent- National Highways and Infrastructure Development Corporation Ltd. (hereinafter `NHIDCL'). Vide the said letter, the Petitioner has been declared as a non-performer. The letter further states that as a consequence of the declaration, the Petitioner will not be able to participate in any bid for National Highways projects with the Ministry of Road Transport and Highways (hereinafter `MoRTH') or any other executing agencies till such time it is removed from the list of non-performers.

3. On the last date of hearing, i.e, 4th January, 2023, ld. Counsel for the Petitioner submitted that the same has adverse consequences for the Petitioner as it is unable to participate in any bid for national highway projects with MoRTH or any other executing agencies. Ld. counsel for the Petitioner also submitted that the said declaration is for an indefinite period.

4. On the other hand, ld. Counsel for the Respondent who had appeared on advance notice submitted that the circular dated 7th October, 2021 issued by the MoRTH clearly shows that the said declaration is effective for a period of one year or till deficiencies are rectified by the Petitioner, whichever is earlier.

5. After hearing counsels for the parties, the following directions were passed on the last date of hearing:

"6. A list of other projects for which bids have been submitted by the Petitioner has been placed on record. It is submitted by ld. Counsel that these bids were submitted even prior to the Petitioner being declared as non-performer and hence the impugned order should not affect the said bids.

7. Ld. counsel for the Respondent submits that eligibility of the bidder for a project is ascertained as on bid due date and seeks time to take instructions in the matter limited to this issue.

XXX

11. List on 9th January, 2023 for ld. Counsel for Respondent to revert on whether the impugned letter would affect the bids submitted by the Petitioner before being declared as non-performer."

6. Today, it is submitted by ld. Counsel for the Petitioner that insofar as the MoRTH circular dated 7th October, 2021 is concerned, the said circular is clear to the extent that the non-performer and debarment status is to be considered on the bid due date. He submits that the list of tenders in which the Petitioner has participated prior to the impugned blacklisting order dated 8th September, 2022 being passed, would show that the Petitioner is being treated as non-responsive even with respect to the bids submitted prior to the said date by the Petitioner.

7. On the other hand, ld. Counsel for the Respondent submits that non-responsive status of the Petitioner's bid is a declaration being issued by MoRTH, which has not been impleaded in the present case and the said Ministry ought to be impleaded and their submissions ought to be heard.

8. As on today, the Court has perused the blacklisting letter dated 8th September, 2022 and the circular of MoRTH dated 7th October, 2021. The circular itself clearly states that prior to any party being declared as non-performer, a written reply and personal hearing, if so desired, shall be given by the competent authority. If a party is declared as non-performer, a representation can also be filed by such a party to the reviewing authority and thereafter, the decision would be taken in the matter. Relevant portion of the circular is set out below