The obligation of bidders to disclose all material facts as per tender conditions, and the authority's discretion in evaluating the materiality of the disclosed facts.

MANSOOR AHMAD MIR, J.

1. Challenge in this Letters Patent Appeal is to the order dated 1-6-2013 passed by the learned single Judge in OWP No. 1668 of 2012, in case, titled as, M/s. Nayak Infrastructure Pvt. Ltd. vs. State of Jammu & Kashmir and others, on the grounds taken in the memo of appeal (for short, impugned judgment). Vide the impugned judgment, the writ petition filed by the appellant came to be dismissed.

2. The facts in brief are that the Government under Pradhan Mantri Gram Sadak Yojana (for short, PMGSY) took a decision to construct road from Km. 2nd LO25 to Champal, Block Bhallesa, Package No. JK04-151, Phase III, Stage 1st. Accordingly, respondent No. 2, i.e. Chief Engineer, PMGSY, invited e-tenders from the approved and eligible contractors. In response thereto, appellant herein along with others also applied. Appellants technical bid came to be rejected on the ground that he had given wrong information in the affidavit about the litigation and was held non-responsive. It would be appropriate to reproduce the reasons given while rejecting the technical bid of appellant herein, as recorded at page 170 annexed with the appeal.

The bidder has given the wrong undertaking in the affidavit about the litigation as he is already in litigation with this Department, hence non-responsive.

3. Feeling aggrieved, the writ petitioner filed OWP No. 1668 of 2012 questioning the rejection of his technical bid on the ground that he was not supposed to mention about the litigation as per the conditions contained at 4.7 (i) & (ii) of Notice Inviting Tenders. It would be appropriate to reproduce the said conditions hereunder.

"4.7. Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have :

(i) Made misleading or false representations in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements.

(ii) Record of poor performance such as abandoning the works, not properly completing the contract, inordinate delay in completion, litigation history or financial failures etc.

4. The Writ Court after examining the pleadings, documents and the tender conditions contained in 4.7(i) & (ii) held that the writ petitioner did not disclose in the affidavit the litigation which was pending between him and the department, thus has given false statement in the affidavit. The learned single Judge, therefore, while dismissing the writ petition held that the technical bid of the writ petitioner has rightly been rejected by the official respondents and he has rightly been disqualified.

5. The star argument of learned counsel for appellant is that the appellant was supposed to give all facts regarding the litigation history, if the same was relating to the record of his poor performance of the previous contract. Since no such contract was earlier allotted to the writ petitioner, therefore, he was not supposed to disclose about the current litigation, which otherwise is miscellaneous one and not connected with the poor performance.

6. The argument though is attractive but is devoid of force for the following reasons.

7. Condition 4.7(i) provides that if any bidders makes a false representation in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements, such bidders is to be disqualified.

8. The writ petitioner though had sworn the affidavit and annexed the same with the tender documents, yet the same does not disclose who had sworn the affidavit. However, that is not a ground for rejection of his technical bid by the official writ respondents, but the rejection is only on the ground that he did not disclose all the facts regarding the litigation while submitting the tender documents. It would be appropriate to reproduce paragraphs 2 & 9 of the affidavit herein.

"2. That we have not been fallen into litigation with any Government Department.

9. That the information supplied with the bidding document is correct and noth