IMPORTANT POINT
The court upheld the decision of the respondent NHPCL, concluding that the NHPCL was within its rights to seek clarifications from the bidders as per the terms of the clauses and the manual.

JUDGMENT :

Vijay Bishnoi, J.

1. This intra-Court appeal is filed by the appellant being aggrieved with the judgment dated 07.09.2023 passed by the learned Single Judge in WP(C) 118/2023 whereby the writ petition filed by the appellant has been dismissed and the interim order passed by this Court in the said writ petition has been vacated.

2. The facts, which are not in dispute, are that the respondent NHPCL issued Notice Inviting e-Tender on 05.08.2022 and invited bids for the work of River Bank Protection/Erosion Control Measures on the Left Bank of River Subansiri adjacent to village Geriki 2 (RD 29 km. – 30 km.) and the last date of submission of bid was 30.08.2022. In response to the NIT dated 05.08.2022, as many as ten bidders had submitted their bids which include the appellant as well as the respondent No.6 herein. It appears that the respondent NHPCL vide e-mail dated 13.10.2022 had asked as many as six bidders, including the appellant as well as the respondent No.6 herein, out of the ten bidders to furnish certain documents and in response to that, the appellant and the respondent No.6 had furnished certain documents. Thereafter, the Tender Evaluation Committee (‘TEC’ for short) in its meeting dated 29.11.2022 found the bids submitted by the appellant and one M/s SIPL Infracon as responsive while declaring the bids of other eight bidders, including the bid of the respondent No.6 herein as non-responsive. Later on, the TEC in its subsequent meeting dated 10.12.2022 declared the bids submitted by the appellant and the respondent No.6 as responsive while treating the bids of other bidders as non-responsive.

3. Being aggrieved with the said action of the respondent NHPCL, the appellant had filed the writ petition, being, WP(C) 118/2023 with the prayer to cancel/revoke/rescind/set aside the impugned TEC report dated 10.12.2022 and to set aside the Work Order dated 28.12.2022 issued by the NHPCL in favour of the respondent No.6 herein and sought a declaration that the bid of the appellant was the only responsive bid with a further prayer to the respondent NHPCL authorities to allot the work to the appellant in respect of the NIT in question.

4. The learned Single Judge after taking into consideration the submissions of the rival parties and after considering the material available on record, has dismissed the writ petition with the following observations;-

“14. It is noted at the outset that in this writ petition the petitioner had not disclosed that pursuant to the e-mail dated 13.10.2022 by the respondent no.4, the petitioner had produced (i) Power-of-Attorney, (ii) Copy of Board Resolution for the tender in question, and (iii) Contractor Registration Certificate (Class-1 or Class-A) on 20.10.2022.

15. On the basis of the projection made in this writ petition that the TEC had granted opportunity to the respondent no.6 to submit additional documents which had made the bid of respondent no.6 qualified, and that those documents were considered though they were filed beyond the prescribed last date of submission of bid, this Court had stayed the operation of the TEC Report dated 10.12.2022 as well as the evaluation of price bid dated 28.12.2022. Therefore, the non-disclosure of material facts, specifically that it was after the last date of submission of bid that the petitioner too was granted an opportunity to furnish deficient documents amounts to a clear cut case of suppression of material facts by the petitioner. It was the duty of the petitioner to disclose all material facts, which was not done and thus, the petitioner had not come to this Court with clean hands. Accordingly, the Court is inclined to hold that on the ground of suppression of material facts, in this case the petitioner has become disentitled for any relief in this writ petition.

16. The categorical stand of the respondent nos.2 to 5 in their affidavit-in-opposition is to the effect that opportunity was to 6 (six) bidders including the petitioner and the responde