JUDGMENT

Mahendra Kumar Goyal, J. - S.B. Civil Writ Petition No. 12057/2021

1. This writ petition has been filed assailing the legality and validity of the order dated 23.9.2021 passed by the second appellate authority whereby, the appeal preferred by the respondent No. 5 under the provisions of Rajasthan Transparency in Public Procurement Act, 2012 (for brevity-'the Act of 2012') against rejection of its technical bid, has been allowed.

2. Although, a number of prayers have been made in the writ petition; but, learned counsel for the petitioner confined his submissions qua relief No. 1 only and did not press the other reliefs.

3. The facts in brief are that the respondent No. 1 issued a Notice Inviting Tender (for short-'the NIT') No. 1/2021-22 for designing, providing, installation and commissioning of solar energy based borewell water pumping systems including comprehensive operation and maintenance for a period of seven years in various villages/towns of District Udaipur under PHED Region, Udaipur. It was a twin stage bid process, i.e., technical bid and financial bid. Total eight bids were submitted and the respondent No. 3, vide its letter dated 5.7.2021 found four bidders including petitioner as responsive whereas, bid of four bidders including respondent No. 5 was found to be non-responsive for the reasons stated therein. The first appeal preferred by the respondent No. 5 against the letter dated 5.7.2021 was dismissed vide order dated 14.8.2021; however, the second appeal has been allowed by the second appellate authority vide order dated 23.9.2021, impugned herein.

4. Learned counsel for the petitioner submitted that by the time second appeal was allowed, it was already declared as L-1 upon opening of the financial bid on 25.8.2021 and hence, the second appeal could not have been allowed without impleading it as a party-respondent. Shri Kumawat contended that once the process of tender was complete by declaring it to be L-1, the same could not have been reopened vide order impugned dated 23.9.2021 that too without affording it an opportunity of hearing. Learned counsel submitted that since technical bid of the respondent No. 5 was rejected vide letter dated 5.7.2021 on account of submission of wrong bid security declaration, the appeal preferred by the respondent No. 5 could not have been allowed in view of clause 21.4 of the NIT. He, therefore, prayed that the writ petition be allowed and the order dated 23.9.2021 be quashed and set aside.

5. Per contra, Shri Anil Mehta, learned AAG submitted that the writ petition is premature inasmuch as the respondents are yet to take a decision regarding responsiveness of the respondent No. 5 as per the eligibility criterion of bid documents as directed by the second appellate authority. Drawing attention of the Court towards the letter dated 5.7.2021, learned AAG submitted that not only the respondent No. 5; but, in all four bidders including the petitioner whose bids were found to be responsive, were lacking one or another requirement in their bid documents. Shri Mehta submitted that even the petitioner was afforded an opportunity to submit a notarized copy of the bid security declaration and hence, it does not lie in its mouth to contend that the respondent No. 5, which was found non-responsive on account of submission of wrong bid security declaration which, as a matter of fact, was found to be a typographical error only, could not have been extended an opportunity to rectify the error.

6. Learned AAG submitted that participation of the respondent No. 5 in the bidding process, in case it is found to be responsive, would be in public interest as it may entail competitive price. He submitted that in absence of any allegation of mala fide or bias, this Court should refrain from interfering with the decision taken by the second appellate authority which has been accepted by the procuring entity. He, in support of his submissions, relied upon following judgments:

1. Bakshi Security and P