Point of Law: Government Contract - Executive decisions - Declaration of bid as ‘Non responsive” justified - In public interest tender conditions have to be complied - Court to exercise judicial restraint in interfering with the administrative action, particularly in matter of tender or contract.

JUDGMENT :

ALI MOHAMMAD MAGREY, J.

1. Shorn of details, the case of the Petitioner is that he is an ‘A’ Class Contractor and proprietor of the unit ‘M/s M.R. Industries’ situated at HMT, Srinagar. In terms of NIT No. 226 of R&B Division, Ganderbal/2020-21 issued under endorsement No. 19627-36 dated 31st of March, 2021, the Respondents invited e-enters on turnkey basis in EPC mode (Double Cover System) from approved and eligible firms/ Contractors registered with the J&K Government, CPWD, Railways and other State/Central Governments for Design, Construction and Commissioning of Single Span 1 x 50 Mtr Motorable 2-Lane Steel Truss Girder Bridge over Nallah Singh at Shallabugh, Ganderbal. The tender notice, as stated, prescribed 16th of April, 2021 as the last date for submission of bids and 17th of April, 2021 as the time of opening of technical bids. In response to the aforesaid tender notice, the Petitioner, besides other eligible Contractors, is stated to have submitted his tender along with all requisite documents before the Respondents. It is pleaded that the tender document of the Petitioner was complete in all respects and that the Petitioner was, thus expecting positive results therefrom, however, on 26th of April, 2021, the Petitioner received a message from the Respondents on the registered telephone number, whereby he was informed that his tender has been found non-responsive. Feeling aggrieved thereby, the Petitioner has challenged the vires of the same through the medium of the instant Writ Petition before this Court under Article 226 of the Constitution of India.

2. When this matter was taken up for consideration on 4th of May, 2021, the Court, while granting time for the Respondents to file Objections, directed that while the process of bidding may be finalized, the contract work shall not be allotted till the next date of hearing before the Bench. Thereafter, the case came up for hearing on 25th of May, 2021, on which date, the Court, after hearing the counsel for the parties and going through the Objections so filed by the Respondents, while fixing the matter for further consideration on 28th of May, 2021, directed the Respondents to file Additional Affidavit. Subsequently, on 28th of May, 2021, after taking on record the Additional Affidavit so filed by the Respondents, the parties were finally heard and matter reserved for orders.

3. Mr. Nisar Ahmad Bhat, the learned counsel for the Petitioner, submitted that the impugned action of the Respondents in declaring the bid of the Petitioner as ‘non-responsive’ is based on mala-fide consideration aimed at depriving the Petitioner from the contract so as to accommodate some blue-eyed Contractor. It is submitted that the Petitioner fulfilled all the terms and conditions prescribed in the NIT, but despite that the Respondents have declared the bid of the Petitioner as non-responsive without assigning any reasons for the same. It is contended that by excluding the Petitioner from the zone of consideration, the Respondents have put unnecessary burden on the public exchequer inasmuch as the Petitioner had quoted the lowest rates, thereby defeating the very purpose of the tendering process.

4. Per Contra, Mr. M.A. Chashoo, the learned Additional Advocate General, appearing on behalf of the Respondents, while reiterating the contentions made in the Objections/Additional Affidavit, submitted that as per condition No. 5 of the tender notice, the execution of civil engineering works should be supported with TDS and ITR and as per the details of financial turnover uploaded by the Petitioner along with his tender document, he has not paid the requisite TDS, thereby rendering his bid liable to be rejected. It is further submitted that upon analysis of the bid of the Petitioner, the technical expert committee have found that the bidding capacity of the Petitioner is only Rs. 1.63, which is much less than the required bid capacity of Rs. 2.16 crores as prescribed in the tender notice. Th