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2013 Supreme(J&K) 429
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Ali Mohammad Magrey, J.
Wani & Company -Appellant
Versus
Union Of India & Ors. -Resopndent
OWP No. 396-2013, CMP No. 1019-2013
Decided On : 09-07-2013
Prem Sadotra, R.P. Jamwal.
The judgment establishes the principle that fairness and non-arbitrariness are crucial in tender processes, and the scope of judicial review in tender matters is limited.
Headnote:
Tender Disqualification - Experience Criteria - NIT no. CE(P) SPK/24/2012-13 - 5.2.4 - The judgment discusses the petitioner's challenge to disqualification from a tender process based on experience criteria. The court analyzes the eligibility criteria, the petitioner's argument of arbitrariness, and the scope of judicial review in tender matters. The court concludes that the decision to disqualify the petitioner was not arbitrary and dismisses the petition.
Fact of the Case:
The petitioner, a Class `A' contractor, challenges disqualification from a tender process based on experience criteria. The petitioner argues that the disqualification order is arbitrary and does not specify the lack of eligibility. The respondents admit disqualification due to lack of experience on similar works.
Finding of the Court:
The court finds that the decision to disqualify the petitioner was not arbitrary and upholds the disqualification. The court dismisses the petition and vacates the interim direction.
Issues: The issues include the petitioner's challenge to the disqualification order, the reasonableness of the experience clause, and the alleged arbitrariness of the decision.
Ratio Decidendi: The court emphasizes the importance of fairness and non-arbitrariness in tender processes. It highlights the limited scope of judicial review in tender matters and the need for preconditions to ensure the contractor's capacity to execute the work.
Final Decision: The court dismisses the petition and vacates the interim direction. Each party bears their respective costs.
2. Respondent no.2, vide NIT no. CE(P) SPK/24/2012-13 dated 08.02.2013, invited tenders for:
"PROVIDING, LAYING AND COMPACTION OF 100 MM AND 75 MM THICK WET MIX MACADAM, DENSE BITUMINOUS MACADAM 50 MM THICK AND SEMI DENSE BITUMINOUS CONCRETE 25 MM THICK CONSOLIDATED INCLUDING PRIME COAT AND TACK COAT AS PER MORT&H SPECIFICATION BETWEEN 0.00 TO KM 17.992 ON AKHNOOR-JOURIAN ROAD IN 13 BRTF SECTOR UNDER PROJECT SAMPARK IN J&K STATE."
It is submitted that the petitioner, being interested and desirous of participation in the tendering process for allotment of the work in question, submitted its tender complete in all respects. The price bid was enclosed by the petitioner separately. It is stated that the petitioner was not called at the time of the opening of the technical bid evaluation. However, the firm came to know through e-procurement system, Government of India, Technical Bid Evaluation Summary, that it had been disqualified from participation in the tendering process on account of lacking the criteria of experience on similar works. Vide the aforesaid Technical Bid Evaluation Summary, it is averred, the petitioner firm was informed that the documents submitted by it alongwith the tender did not meet the eligibility criteria as per conditions given at paragraph 5.2.4 of the tender document to prove the similar work experience, and, thus, the petitioner firm was disqualified on technical evaluation. The petitioner has challenged the said disqualification through the medium of this writ petition.
3. The respondents have filed their objections wherein they have unambiguously admitted the fact that the petitioner's tender stood disqualified in the tendering process by Technical Evaluation Board. It is averred in the objections that the petitioner was one of the tenders who submitted their tenders for the work in question. According to the fixed schedule, the technical evaluation was done by the Board of Officers, who were detailed for this purpose and whose names were also given on CPP Portal and after technical evaluation, the same was uploaded in the CPP Portal, which automatically generated e-mails to all those who had participated in the tendering process. It is further submitted that the petitioner's tender was disqualified in the tendering process by Technical Evaluation Board on account of its not meeting the criteria of experience on similar works. Hence, the petitioner failed to qualify for the tender, and that the petitioner was, accordingly, informed that their price bid shall not be opened.
4. It may be mentioned here that vide interim order dated 20.03.2013, a Coordinate Bench of this Court was pleased to keep in abeyance the operation of technical bid evaluation summary / order dated 11.03.2013. Resultantly, the allotment of the work and its execution has come to a halt.
5. I have heard learned counsel for the parties on admission of the petition and perused the record.
6. The controversy raised by the petitioner is related to the `Experience' Clause "A.2" prescribed und
