IMPORTANT POINT
The imposition of ownership requirements for RMC/Bitumen Plants in tender processes must ensure fair competition and cannot be arbitrary or discriminatory.

ORDER :

(Nupur Bhati, J.)

1. Though the matter was listed in the ‘Fresh’ category, upon the joint request of both the parties, the matter is heard finally, today itself.

2. The instant writ petition has been filed by the petitioner under Article 226 of the Constitution of India challengeing the criteria for qualification with respect to the technical bid, issued by the respondent no. 1 in Notice Inviting Tender (‘NIT’) dated 30.10.2024 (Annex.2), stipulating that it is required for the contractor to have his own RMC/Bitumen Plant, if the estimated cost of the work is more than 50 lakhs.

3. The writ petition has been preferred with the following prayers:

“It is, therefore, respectfully prayed that record of the case may be called for an by an appropriate writ, order or direction:

(i) The impugned criteria for qualification (Technical Bid) issued by respondent in NIT (Annex.2) to the extent of the arbitrary condition put by the respondent JDA to the effect that if the estimate cost of the work is more than 50 lacs for construction of Tarr/CC road, then the contractor should have his own RMC plant/ Bitumen Plant and he has to submit the document with regard to ownership of such plant, may kindly be quashed and set aside and the petitioner may be allowed to participate in the Bidding process in pursuance of NIT No. 06/2024-25 (Annex.2).

(ii) That if technical bid of the petitioner is found to be lowest, then the petitioner firm may be awarded the work contract.

(iii) Any other relief to which the petitioner is entitled, may be granted in his favour.

(iv) The writ petition may be allowed with costs.”

4. Briefly stated, the facts of the case are that the respodent no. 1, Jodhpur Development Authority (‘JDA’) issued an NIT on 30.10.2024 (Annex.2) for calling upon bids for works relating to construction of road including construction of CC road at Tilwadiya Fanta and the estimated cost of work was Rs. 139.60 lakhs. The last date for filing the online application form and deposit of earnest money was fixed as 14.11.2024 and the date of opening of the bids was fixed at 15.11.2024.

5. Clause 20 of the NIT dated 30.10.2024 provides for a condition that if the estimate cost of work is more than 50 lakhs, then the contractor should have his own RMC/Bitumen plant and he has to submit the document with regard to the ownership of such plant in order to be eligible for submitting his tender. Thus, aggrieved of the clause 20 of the NIT (Annex.2), the petitioner has preferred this writ petition.

6. Learned counsel for the petitioner submits that the action of the respondent no. 1 by putting the condition in Clause 20 of the NIT (Annex.2) is arbitrary and contrary to the very spirit of the fundamental principles enshrined under Section 4 of the Rajasthan Transparency in Public Procurement Act, 2012 (‘RTPP’), which provides that it shall be the responsibility and accountability of the Procuring Entity to provide fair and equitable treatment to the bidders, promote competition and put in mechanics to prevent corrupt practices. However, he submits that, by way of imposing this condition, the Procuring Entity has deprived many prospective bidders from participating in the bidding process like the petitioner, just because they are not having ownership of the RMC/ Bitumen plant and thereby, drastically reducing the competition and favouring blue-eyed bidders.

7. Learned counsel for the petitioner also submits that according to the work order dated 27.06.2024 (Annex.3), issued by the Department of Finance, Government of Rajasthan, which provides that the class of contractor who are qualified to tender the amount, an AA Class contractor is qualified to tender any work upto any maximum amount and as per normal procedure of the bid, this type of condition was never imposed by the respondent no.1 or any other department in previous tenders.

8. Learned counsel for the petitioner also submits that the respondent no. 1 had issued another NIT dated 15.10.2024 (Annex.5) for u