The main legal point established in the judgment is the need for the competent authority to consider and decide on representations regarding tender conditions and issue clarifications to ensure competitive bidding.

ORDER :

This writ petition has been filed by the petitioner-Vikas Anand, who is the authorized representative of Rashmi Metaliks Limited, with a prayer to quash and set aside Condition No.32(x) of the notice inviting tender dated 05.03.2022 and also for a direction to the respondents to go ahead with the same condition as was there in the previous NITs under Condition No.32(x).

2. One of the arguments, which has been advanced by learned Senior Counsel for the petitioner is that Clause 32(x) has been modified. When compared with similar clause in earlier two tender notices issued on 01.01.2022 and 19.02.2022, this clause appears to have been included at the suggestion of one of the potential bidders, i.e. M/s Jindal Saw Limited, as would be evident from letter dated 20.12.2021, in which vide para 2, they proposed a clause, which was verbatim included in the third notice for tender dated 05.03.2022. However, the respondents have added one more sentence at the end of Clause 32(x) to the effect that the tenderer shall not be eligible if he has been blacklisted before last three years from the date of opening of tender and the blacklisting has not been revoked by the competent authority. The implication of that is that if a tenderer has been blacklisted during past three years, but if the order of blacklisting has been revoked, he will continue to be eligible. According to learned Senior Counsel for the petitioner, this analogy should also apply to the orders of debarment/disqualification/disallow to supply the DI Pipes etc. It is contended that the petitioner apprehends that he may be disqualified because the approval for procurement of DI Pipes from the petitioner was withdrawn by Madhya Pradesh Urban Development Company Limited vide letter dated 25.07.2019, but the same was revoked by subsequent letter dated 31.05.2021. If the latter sentence, which provides that if the order of blacklisting has been revoked during the past three years, the tenderer shall continue to be eligible, is also applied to the cases of debarment/disqualification/disallow to supply DI Pipes etc., the petitioner would be still eligible.

3. Comparison of what has been given in Clause 32(x) supra in the NIT dated 05.03.2022 with the letter dated 20.12.2021 supra shows that this indeed appears to have been originated from suggestion by M/s Jindal Saw Limited as we find that it has been taken verbatim from the aforesaid letter, but the last sentence, which has been added thereto, has somewhat diluted the rigor of the condition of disqualification by stating that the tenderer shall not be eligible if he has been blacklisted for last three years from the date of opening of tender and the blacklisting order has not been revoked by the government authorities. Conversely, it would mean that the tenderer, who was blacklisted during the last three years, shall continue to be eligible if the blacklisting order has been revoked by the competent authority. The analogy by which the tenderer, who was blacklisted during the past three years and order of blacklisting has been revoked, is made eligible, in our view, should also apply to the order of debarment/disqualification/disallowing to supply the DI Pipes, if such an order has been revoked by the competent authority.

4. Learned Advocate General submitted that the petitioner may, in this behalf, make an appropriate representation to the competent authority, who shall consider the matter and issue necessary clarification preferably before opening of the tender, so as to ensure that competitive bids are received.

5. Learned Senior Counsel for the petitioner submits that the petitioner has already made a representation in this behalf to the respondents on 8th March 2022.

6. In our view, it would be the right course because this will ensure the maximization of bids, particularly, when it is informed that there are very limited number of players, who can supply the desired quantity of DI Pipes and that the earlier two tenders floa