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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAJNESH OSWAL, J.
M/s Fazal Rehman Dar – Appellant
Versus
UT of J&K and others – Respondents
WP(C) No. 72 of 2023, CAV No. 104 of 2023
Decided on : 04-08-2023
TENDERING - PMGSY CONTRACT - Clause 4.4 B (a) III (b), Clause 4.4 B (a) xi - [4.4 B (a) III (b), 4.4 B (a) xi] - The court examined the issues raised by the petitioner regarding the disqualification of the respondent No. 3 for not submitting the required documents, including ITRs and bank certificates. The court held that the financial standing of the bidder was to be determined based on the documents uploaded by the participants, and the ITR acknowledgements sufficed the purpose of determining tax compliance. The court also found that the bank certificate issued by the respondent No. 3 was acceptable, as no specific format had been prescribed by the tender inviting authority. Additionally, the court rejected the petitioner's contention that the respondent No. 3 was required to be disqualified for submitting ITR acknowledgements of the proprietorship concern, as the respondent No. 3 had acquired the business and assets of the proprietorship concern. The court dismissed the petition, stating that the issues raised were to further the petitioner's commercial interest and not the public interest.
Fact of the Case:
The petitioner challenged the defective technical bid submitted by the respondent No. 3 and its subsequent declaration as the lowest bidder for a road upgradation contract. The petitioner raised concerns about the respondent No. 3's failure to submit required documents, including ITRs and bank certificates, and questioned the respondent No. 2's decision to declare the respondent No. 3 as the successful bidder.
Finding of the Court:
The court found that the ITR acknowledgements submitted by the respondent No. 3 sufficed the purpose of determining tax compliance, and the bank certificate was acceptable despite lacking a specific format. The court also rejected the petitioner's contention regarding the disqualification of the respondent No. 3 for submitting ITR acknowledgements of the proprietorship concern, as the respondent No. 3 had acquired the business and assets of the proprietorship concern. The court dismissed the petition, stating that the issues raised were to further the petitioner's commercial interest and not the public interest.
Issues: The issues revolved around the disqualification of the respondent No. 3 for not submitting the required documents, including ITRs and bank certificates, and the petitioner's contention regarding the ITR acknowledgements submitted by the respondent No. 3.
Ratio Decidendi: The court held that the ITR acknowledgements sufficed the purpose of determining tax compliance, and the bank certificate was acceptable despite lacking a specific format. Additionally, the court rejected the petitioner's contention regarding the disqualification of the respondent No. 3 for submitting ITR acknowledgements of the proprietorship concern, as the respondent No. 3 had acquired the business and assets of the proprietorship concern.
Final Decision: The court dismissed the petition, stating that the issues raised were to further the petitioner's commercial interest and not the public interest.
JUDGMENT :
1. The respondent No.2, vide e-NIT No. CEJ/PMGSY/723 of 2022-23 dated 14.11.2022 invited tenders from the eligible contractors for allotment of various contracts for different works including the “Upgradation of road from MRL-18 Mangota to Darhal, Package No. JK12-3056, PMGSY-111, Batch-I of 2022-23; Block-Thana Mandi, District Rajouri Length 20.00 Kms (Using Waste Plastic)”.
2. The petitioner after having failed to procure the above mentioned contract on account of submission of the higher financial bid by the petitioner vis-a-vis the respondent No. 3 (successful bidder), has now approached this court raising grievance in respect of the defective technical bid submitted by the respondent No. 3 and its acceptance by the respondent No.2 vide order No. CEJ/PMGSY/25846 dated 06.12.2022, which as per the petitioner was uploaded on 14.01.2023. The petitioner has also questioned the action of the respondent No.2 for declaring the respondent No.3 as successful bidder for the contract under reference.
3. The case projected by the petitioner is that initially vide e-NIT No. CEJ/ PMGSY714 of 2022-23 dated 27.08.2022, the respondent No. 2 had invited tenders from approved and eligible contractors for execution of various works in Jammu including the tender for “Up-gradation of road from MRL 18 Mangotra to Darhal, Package No. JK12-3056, PMGSY 111, Batch-I of 2022-23, Block-Thana Mandi, District Rajouri Length 20.00 Kms. (Using Waste Plastic). The tender document was inclusive of the Standard Bidding Documents (SBD) containing in details terms and conditions, which the bidders were supposed to comply before being declared as responsive. The petitioner submitted its bid to the official respondent for allotment of aforesaid contract, but during the course of evaluation of technical bid of the bidders, the petitioner and another firm namely M/s Puran Chand and Sons were declared as technically disqualified/non responsive on account of certain deficiencies. The aforesaid e-NIT was cancelled and fresh e-NIT i.e. e-NIT in question was issued.
4. The petitioner again submitted its bid on the e-Portal of the official respondents and enclosed all the requisite documents as per the requirements of e-NIT as well as SBD. Besides petitioner, four other contractors including the respondent No. 3 also participated in the tendering process. It needs to be mentioned that the bids were made in two parts i.e. Part-I was the technical part of the bid and the Part-II was the financial part. The petitioner as well as the other bidders, were notified by the system generated e-mail/SMS about the opening of Part 1 of the bid containing names of the bidders who had submitted their response to the above mentioned e-NIT. The respondent No. 2 vide No. CEJ/PMGSY/25846 dated 14.01.2023 issued technical evaluation list of the bidders. On 14.01.2023 the petitioner received another e-mail/SMS regarding opening of the financial bid wherein the petitioner was informed that the respondent No. 3 has been found as the lowest bidder in the financial bid.
5. Being aggrieved of the respondent No. 3 having successfully qualified the technical bid and the subsequent declaration of respondent No. 3 as lowest bidder, the petitioner has filed the present petition on the following grounds:
(i) That in terms of clause 4.4 B (a) III (b) Income Tax Returns (for short “the ITRs”) for the last five financial years and in terms of clause 4.4 B (a) xi evidence of access to line(s) of credit and availability of other financial resources/facilities (10 percent of the contract value) certified by the banker (the certificate being not more than 3 months old) were required to be submitted along with bid by the participants. The respondent No. 3 did not enclose the copies of ITRs for the last five years but had enclosed acknowledgements of having filed the ITRs with the department which does not meet the requirement as envisaged in the said clause. More so, the bank certificate enclosed with th
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