The essential conditions of a tender must be strictly complied with, and the courts should exercise restraint in interfering with commercial matters.

ORDER :

1. By this petition, the petitioner has challenged Order No. CEJ/PMGSY/25679 dated 05.12.2022, passed by respondent No. 2, whereby bid of the petitioner has been shown as non-responsive on the ground of submitting Company Audit Reports attached for two years instead of last five financial years which is not as per requirement of Standard Bid Document (SBD) Clause 4.4 B (a) III (e). The petitioner is further seeking direction upon the respondents to consider his representations dated 05.12.2022 and 06.12.2022.

FACTUAL MATRIX:

2. Respondent No. 2 has floated a tender for the contractual work vide e-NIT No. CEJ/PMGSY/714 of 2022-23 dated 27.08.2022 wherein, the petitioner states that while uploading the documents on the portal in pursuance of the tender duly complied with each and every clause mentioned in the tender document and rather uploaded more documents than were required just to reflect the financial and the technical standing of the petitioner.

3. On 05.12.2022, vide impugned order, respondent No. 2 mentioned the following reasons for the petitioner being declared as non-responsive:

(i) Company Audit Report attached for 02 years instead of last 5 financial years by the 1st JV Partner M/s Green Earth Infrastructure Pvt. Ltd. which is nor as per requirement of SBD Clauses 4.4 B (a) (III) (e) hence non-responsive.

4. It is stated that the petitioner had uploaded all the documents including the company audit report for the required five years but the respondents deliberately chose to oust the petitioner arbitrarily after having found the petitioner eligible previously upon the same set of documents uploaded on the portal.

5. It is stated that the respondents have arbitrarily decided to oust the petitioner and have adopted an arbitrary and mechanical approach of reading the terms and conditions of the Standard Bidding Document (SBD). The respondents have cited Clause 4.4 B (a) III (e) and (f) for declaring the petitioner as non-responsive, after having declared the petitioner responsive with respect to the same work package previously with same set of documents. Clause 4.4 B (a) III (e) of the SBD is reproduced as under:

(III) Reports on financial standing

(a) Annual Turnover Certificate from Chartered Accountant for last five financial years (2017-18, 2018-19, 2019-20, 2020-21 and 2021-22) excluding current financial year bearing Unique Document Identification Number (UDIN) of Institute of Chartered Accountants of India with breakup of civil works and total works excluding GST/VAT in each financial year. Clause 4.4 of ITB. Without UDIN the certificate will not be entertained and the bid rejected.

(b) Income Tax Returns for the last five financial years immediately preceding the bid due date i.e. for the financial year (2016-17, 2017-18, 2018-19, 2019-20 and 2020-21).

(c) Balance sheet for last five financial years.

(d) Profit and loss account for last five financial years.

(e) Company Audit Report (if applicable) for last five financial years.

(f) Audit Reports under Income Tax Act (3CA/3CB along with 3CD reports) (wherever applicable) for the last five financial years.

(g) TDS certificate/26AS form downloaded from income tax website for the last five financial years.

(h) The successful bidder will have to provide the original documents (from a to g) duly certified by a Chartered Accountant before a work is allotted to him. Any certificate issued by the Chartered Accountant should mandatorily bear UDIN.

6. It is stated that the respondents, in passing the impugned order, failed to consider Clause (h) of the clause 4.4 B (a) III of the SBD and the fact that all the five year’s company audit report stands uploaded and because of technical glitch on the portal, the report of the petitioner of five years was not available on the portal. Since the impugned order dated 05.12.2022 was passed by the respondents without giving a chance of fair hearing to the petitioner, the petitioner tendered two representations on 05.12.2022 and on 06.12.20