The rejection of a bid must be based on relevant and material factors, and the decision-making process should not consider extraneous or irrelevant factors.

JUDGMENT :

The legality and correctness of a decision dated 14.06.2023 taken by the Technical Bid Evaluation Committee of the PWD (NH) by which the bid of the petitioner no. 1 has been held to be technically non-responsive is the principal subject matter of challenge in this petition filed under Article 226 of the Constitution of India. Amongst others, the ground of challenge is non-application of mind to the relevant factors and taking into account extraneous and irrelevant factors for rejecting the bid of the petitioner.

2. Before going to the issue which has arisen for determination, the facts of the case can be briefly narrated as follows.

3. A Notice Inviting Tender (NIT) dated 11.04.2023 was floated by the PWD (NH), Assam for the work of “periodic renewal of Makum – Rupai Bypass from Km 0.000 to Km 23.482 (L = 23.482 km) under ARP for 2022-23 under EPC mode under Dibrugarh NH Division in the State of Assam bearing Job No. TA/15/2022-23/266 and being Package No.PWD-NH(R)/DIB/2023-24/EPC/01”. The petitioner no. 1 is a Company which was incorporated on 02.06.2022 and is a Class-I (A) registered contractor and had submitted its bid by claiming that it meets all the eligibility criteria. The petitioner no. 2 is one of the Directors of the petitioner no. 1 who, however, had earlier executed works with the PWD both Roads and Building & NH Departments in his individual capacity. After incorporation of the petitioner no. 1 as a Company, it is the case projected that certain on-going works in the name of the petitioner no. 2 in his individual capacity were transferred to the petitioner no. 1- Company. However, such works did not include any of the works done by the petitioner no. 2 with the PWD (Roads). In connection with the bid submitted by the petitioner no. 1, the respondent no. 5 who is another bidder had submitted a complaint, copy of which was not served upon the petitioners. Upon such complaint, a communication was issued from the Chief Engineer, PWD (NH) to the Chief Engineer (Border Roads) with regard to three works which were the subject matter of complaint. The said communication was, however, answered vide communication dated 26.05.2023 that those three woks were in the name of the petitioner no. 2. The Technical Bid Evaluation Committee, however, vide the impugned minutes of meeting dated 14.06.2023 has rejected the bid of the petitioner no. 1 as being technically non-responsive. It has been held that such rejection is as per clause 2.6.2 as it has been held that there has been deliberate misrepresentation of facts. Apart from challenging the aforesaid decision, it is projected by the petitioners that the tender documents of the respondent no. 5 were also defective for which a complaint was lodged. Specific allegation has been made with regard to the Unique Document Identification Number (UDIN) as well as concealment of material facts.

4. I have heard Shri KN Choudhury, learned Senior Counsel assisted by Shri RM Deka, learned counsel for the petitioners. I have also heard Shri D.Nath, learned Standing Counsel, PWD, Assam. Shri BDKonwar, learned Senior Counsel assisted by Shri H.Agarwal, learned counsel has appeared for the private respondent no. 5. Shri Nath, learned Standing Counsel has also produced before this Court the original records of the Department.

5. Shri Choudhury, learned Senior Counsel for the petitioners has submitted that the decision making process suffers from non-application of mind wherein irrelevant and extraneous factors have been taken into consideration and the relevant factors which are germane to the issue in hand have been overlooked. He submits that the entire action has been triggered by a complaint lodged by the respondent no. 5 who is a competitor with the sole intention to reduce/lessen a fair competition. He accordingly submits that such complaints ought not to have even been taken into consideration. The learned Senior Counsel, however, submits that even if such complaint is taken into c