Fraudulent practices in securing a contract vitiate the process, and completion of the contract does not absolve the petitioner of liability. The authority has the right to debar the petitioner as per Clause 35 of ITB.

JUDGMENT :

1. The National Highway Authority of India invited bids through e-tender from experienced firms/organizations for short term improvement and routine maintenance of NHAI/Lakhanpur-Jammu section including Jammu Bye-pass from Km 16.350 to Km 97.20 and Km 0.00 to Km 15.00 of Jammu Bye-pass of NH-44 (old NH-1A) in the State of Jammu and Kashmir. The petitioner along with other eligible contractors, participated in the bidding process and being the lowest bidder, his bid for contract price of Rs. 9,34,34,136/- was accepted. The petitioner, thus, furnished performance security plus additional security for an amount of Rs. 93,43,414/- in terms of the bid document. The NHAI, accordingly, entered into a contract with the petitioner on 05.03.2018 and the petitioner successfully completed the execution of the contract. The respondent No. 4 i.e. Regional Officer, J&K, NHAI issued a show-cause notice dated 04.02.2021 to the petitioner, stating that since the experience certificates submitted by the petitioner were not genuine and have not been issued by the concerned authorities, as such, are false and fabricated, therefore, confirmation towards correctness of these documents is also false.

2. The petitioner was, thus, called upon to show cause as to why action under Clause 35 of the Instructions to Bidder (ITB) of RFP document declaring the firm ineligible either indefinitely or for a stated period of time be not initiated against him, as the petitioner has engaged in corrupt & fraudulent practices.

3. In reply dated 17.02.2021, to the show-cause notice, the petitioner submitted that the respondents could not invoke Clause 35 of the Instructions to Bidder (ITB) of RFP documents as the contract was awarded and executed within stipulated period of time to the satisfaction of the respondents-NHAI. It was certified by the Project Director, NHAI on 03.02.2020 that the petitioner had performed the same satisfactorily. It was also submitted that the case of the petitioner was not covered under Clause 35 of Instructions to Bidder (ITB) of RFP, as such, proceedings initiated in terms of notice be dropped, as the same are unwarranted and unfounded. The respondents, after considering the reply issued an office circular dated 26.03.2021 declaring the petitioner in eligible to bid for any work of NHAI and also debarred him from participating in bidding for any work to be undertaken by NHAI thereafter for a period of 02 years from the date of issuance of that office circular.

4. The petitioner is aggrieved of the office circular dated 26.03.2021, declaring him ineligible from participating in the bidding process in any work undertaken by NHAI i.e., blacklisting him. The impugned circular dated 26.03.2021 is, thus, challenged by the petitioner on the ground that; (i) the impugned office circular dated 26.03.2021 is arbitrary, illegal and is against the terms of the contract agreement dated 25.03.2018, as such, is liable to be quashed or set aside; (ii) the office circular is misconceived as the contract agreement does not include Instructions to Bidders (ITB) of RFP in the request for proposal to be part of the contract agreement covering the petitioner and respondent-NHAI; (iv) further the Instructions to Bidder ITB) of RFP is only to inform the intending bidder requirements while making bid and does not cover the dispute of post completion of the execution of work in the contract; (v) the Instructions to Bidder (ITB) is not an agreement between the bidders and the NHAI, as such, invoking Clause 35 of RFP is illegal and misconceived in law; (vi) the petitioner has successfully executed the work within stipulated time to the satisfaction of NHAI, therefore, the alleged act of the petitioner does not fall within the purview of "fraudulent practice" under sub-section (h) of Clause 53.2 of the 'Conditions of Contract'; (vii) the Contract does not contemplate action of blacklisting or banning the contractor for, allegedly indulging in fraudulent pract