The legality of seeking additional documents from bidders and the interpretation of bid conditions and rules in public procurement.

JUDGMENT :

ARUN BHANSALI, J.

1. This appeal is directed against the order dated 6.6.2023 passed by learned Single Judge in S.B. Civil Writ Petition No.6308/2023, whereby, the writ petition filed by the Appellant Firm has been dismissed.

2. The petition was filed aggrieved of the order dated 20.4.2023 directing the petitioner firm to discontinue the work of bagging, loading and stacking and diamond (byepass) work from 21.4.2023 and against the tender summary report dated 20.4.2023 showing respondent no.5 to have obtained L-1 rank above the petitioner with L-2 rank.

3. It was inter alia indicated that Rajasthan Cooperative Diary Federation Limited issued an E-bid for bagging, loading and stacking related work and diamond (byepass) work.

4. On 01.04.2023 before issuance of the said E-bid, the petitioner-firm had an existing contract of work from 16.10.2021 till 20.4.2023. Pursuant to the said E-bid, 7 bidders submitted their documents for technical bid, for which, opening date was indicated as 12.4.2023.

5. A notice of shortfall in the documents for the technical bid was issued to all the bidders except the petitioner firm. In compliance of the said notice, the bidders submitted the requisite documents. The financial bid was opened on 20.4.2023 vide the tender summary report, wherein, respondent no.5 was shown as the lowest bidder and the petitioner firm was shown as the second lowest bidder.

6. The petitioner firm gave notice for demand of justice pointing out the alleged illegalities committed by respondent no.4, which was replied to by the official respondent indicating that two firms were ousted from bidding process. On the same day, work order was issued in favour of respondent no.5, who was required to commence the work from 21.4.2023 i.e. the next date.

7. Aggrieved of the same, the writ petition was filed.

8. Submissions were made that under Section 14(6) of the Rajasthan Transparency in Public Procurement Act, 2012, the authority is clearly prohibited in adopting a criteria for procedure other than those mentioned in the bidding document and as Clauses 7 & 8 of the terms and conditions contained in the bid document provided a clear prohibition with regard to supplementing of documents after opening of the technical bid, the notice of shortfall issued was in violation of the said clauses. It was alleged that bidding process was done with the sole intention to extend the undue favour to respondent no.5.

9. The allegations made in the petition were contested based on preliminary objection that the petition was not maintainable as alternative remedy was available. The contract of the petitioner firm came to an end on 20.4.2023 and the respondent no.5 has already started work w.e.f. 21.4.2023, the prohibition contained in Clauses 7 & 8 has no application.

10. Learned Single Judge, after hearing the parties, came to the conclusion that as respondent no.5 has already been awarded the work order in question, which work has been started by respondent no.5, any interference at this stage would amount to unsettling an already settled position, more so when the Court did not find any illegal infirmity, illegality and irregularity in the whole process and, consequently, dismissed the writ petition.

11. Learned counsel for the appellant made vehement submissions that the judgment impugned does not deal with any of the issues raised by the appellant, inasmuch as, when the specific case of the appellant was that Clauses 7 & 8 of the E-bid were violated along with Rule 60(4) of the Rajasthan Transparency in Public Procurement Rules, 2013 (‘the Rules of 2013’), the said aspect was not at all considered and, therefore, the order impugned deserves to be set aside.

12. Further submissions were made that a bare look at the Clauses 7 & 8 of the E-bid would reveal that the bidder was to upload all the documents in the technical bid and no change/correction would be permitted, however, despite the fact that respondent no.5 in his technical bid did not annex