The court upheld that experience gained through subcontracting can be validly considered in bidding qualifications under tender procedures.

JUDGMENT :

ANISH DAYAL, J

1. This petition has been filed seeking disqualification of the bid submitted by respondent no.6/ Rail Vikas Nigam Ltd. (‘RVNL’) in reference to Tender no. IRCON/2060/CGRP/e-TENDER/24-25/CEWRL/GAD-PND/S&T/01 dated 08^th January 2025 (‘impugned tender’), and attendant relief including to declare petitioner no.1 as L-1 bidder.

Factual Background

2. Brief background facts are that respondent no.3/IRCON issued an impugned tender for supply of various signalling, telecommunications and EIMWB materials, installation, testing and commissioning of Distributed/Centralised Electronic Interlocking (E1) Installations at 10 new stations, viz., Surakachhar, Block Cabin, Katghora Road, Bhingra, Patuwa, Matin, Sendurgarh, Putipakhana, Dhangawan and Bhadi stations; 06 new IBCs in the Bhingra-Putuwa, Putuwa-Matin, Sendurgarh-Putipakhana, Putipakhana-Bhadi, Bhadi-Dhangawan & Dhangawan-Pendra Road block sections; installation, testing and commissioning of new section Control System with Headquarters and Wayside Train Control Communication Equipment/System in the Gevra Road–Pendra Road section; installation, testing and commissioning of new Telephone Exchange and EIMWBs at appropriate location(s) through execution of various signalling & telecommunications works (‘S&T Works’); alterations/modifications in the existing panel interlocking installation at Kusmunda Block Station (KBS) yard and the existing Electronic Interlocking Installation at East Cabin of the SECL SILO Siding, (KMKA) yard including other miscellaneous works having estimated cost of work of Rs.209.41 crores.

3. Petitioners claim to be a reputed company in S&T Works and participated in the said tender. The technical bid was opened on 7^th February 2025. Petitioners were found to be eligible with other five bidders.

4. Subsequent to the opening of the technical bid, respondents uploaded the bid documents and/or credentials submitted by the respective bidders. Petitioners, upon review of the said documents, noted that there were several anomalies in the Performance Certificate relied upon by other participants, as they were failing to meet the eligibility criteria as per Clause 1 of e-Procurement Notice.

5. Accordingly, petitioners vide a letter dated 25^th March 2025, informed respondents and requested that the ‘essential qualifying criteria’ be considered in true spirit and there should not be any arbitrary dilution. No response was received. Petitioner approached the Calcutta High Court by W.P.A 7764/2025 praying for consideration of letter dated 25^th March 2025.

6. In the meanwhile, there was opening of the financial bid and since the petitioner was L-2 bidder while respondent no.6/RVNL was the L-1 bidder and was awarded the contract. Subsequently, considering there was a jurisdictional issue also involved, petitioner withdrew the petition from Calcutta High Court and immediately filed this petition.

Submissions on behalf of Petitioner

7. The gravamen of petitioner’s challenge to respondent no.6/RVNL’s successful bid is the ‘qualification criteria’ in the tender, i.e. contractor should possess the experience of having successfully completed or substantially completed similar works during the last seven years with defined parameters of the estimated value of such works. While, respondent no.6/RVNL’s bid and Experience Certificate showed that they have done such works, the same were fully sub-contracted to sub-contractors. Therefore, it was essentially contended that they could not take the benefit of credentials which had already been transferred to sub-contractors.

8. The matter was listed before this Court on 27^th May 2025 and no stay was granted. However, a direction was given in paragraph 6 of the said order that:

“….. any decision taken pursuant to the subject tender shall be subject to the outcome of the present writ petition.”

9. Ms. Meenakshi Arora, Senior Advocate for petitioner, argued that this ten