The faulty application of the value of 'N' in the calculation of available bid capacity led to the illegal and arbitrary rejection of the petitioner's bid.

JUDGMENT :

Sanjeev Kumar, J.

(THROUGH VIRTUAL MODE)

1. The petitioner, an " AAY" Class registered Contractor is aggrieved and has challenged the action of respondent No. 3 rejecting as 'non-responsive' the bid tendered by the petitioner in response to NIT No. PCD-RnB-29 of 2020-21 dated 20th of August, 2020 on the ground that the assessment of Technical bids is totally arbitrary, irrational and dehors the norms/criteria prescribed in Clause 4.7 of the instructions to the bidders (ITB) in the Standard Bidding Document (SBD).

Factual matrix

2. Respondent no. 5, vide NIT No. PCD-RnB-65 of 2019-20 dated 20th of November, 2019, for and on behalf of Lieutenant Governor J&K UT, invited e-tenders (in two cover system) from approved and eligible contractors registered with the Government of Jammu and Kashmir, CPWD etc. for the work of construction of residential flats 2-BHK type four storied including sanitary fittings for government employees at Pampore Srinagar, Block 1, 2 and 3 for estimated cost of Rs. 1313.50 lacs and the work was to be completed within a period of 550 days. Simultaneously with the aforesaid NIT, the respondent No. 5 vide NIT No. PCD-RnB-66 of 2019-20 dated 20th of November, 2019 invited similar e-tenders on same terms and conditions for the work of construction of residential flats 2-BHK type four storied including sanitary fittings for Government employees at Pampore Srinagar, Block 4, 5 and 6. The petitioner along with others responded to the aforesaid NITs. On determination and evaluation of technical bids tendered by the competing tenderers, the technical bid submitted by the petitioner alone was found to be responsive. Since the bid of the single tenderer was found responsive, as such, a decision was taken by the respondents to invite fresh tenders for the said works.

3. Accordingly, fresh tender notices bearing NIT No. PCD-RnB-76 of 2019-20 and NIT No. PCD-RnB-77 of 2019-20 both dated 31st of December, 2019 were floated by the respondent No. 5 on the similar lines. This time also the bid tendered by the petitioner alone was found responsive by the tender evaluation committee consisting of experts in the field. The petitioner being single responsive tenderer was not considered for the financial bid and a decision was taken by the respondents to put the works to fresh tenders yet again.

4. In the aforesaid backdrop, the respondent No. 5 invited fresh tenders vide NIT No. PCD-RnB-29 of 2020-21 dated 20th of August, 2020, this time reducing the quantum of work. The fresh tender was for construction of flats Block 1 and Block 2 and the estimated cost of the work as indicated in the tender was Rs. 942.05 lacs. The time of completion was fixed as 425 days. The petitioner once again responded and was considered for evaluation of technical bids. The petitioner was declared non-responsive. Two other contractors, M/S. S. K. Integrated Consultants and M/S. Muzaffar Ahmad Rather were declared responsive. It is this decision of the technical bid evaluation Committee, the petitioner is aggrieved of.

The grounds of challenge and the contention of the learned counsel for the petitioner:

5. On behalf of the petitioner, it is contended that the impugned action of the respondent No. 3 rejecting the technical bid of the petitioner as 'non-responsive' is arbitrary, irrational and contrary to the terms and conditions of the NIT dated 20th of August, 2020. It is submitted that the petitioner was found responsive by respondent No. 3 for the similar works of higher value which were notified twice on two earlier occasions. The petitioner was found responsive with reference to NIT No. 65, NIT No. 66, NIT No. 76 and NIT No. 77 and, therefore, there was no reason or justification to declare the petitioner 'non-responsive' for the similar work of comparatively lower value. Referring to Clause 4.7 of the ITD in the SBD it is urged that respondent No. 3 has deliberately miscalculated the available bid capacity of the petitioner and has erroneously