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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
MOKSHA KHAJURIA KAZMI, J.
M/s Green Earth Infra structure Pvt. Ltd. – Petitioner
Versus
Union Territory of J&K and Others – Respondents
W.P. (C) No. 97 of 2023, C.M. Nos. 212, 1954 of 2023
Decided On : 03-08-2023
Tender - Quashment of Orders - SBD Clause 4.4 B(a) III(e) - SBD Clause 4.4 B(a) III(f)
Fact of the Case:
The petitioner challenged the orders dated 7th January, 2023 and 18th January, 2023 regarding the opening and allotment of a tender in favor of respondent No. 7, alleging non-compliance with the tender terms and conditions.
Finding of the Court:
The court found that the petitioner failed to fulfill the requisite conditions of the e-NIT, while respondent No. 7 satisfied the criteria and emerged as the successful bidder. The challenge to the allotment was deemed without merit and dismissed.
Issues: The main issue was the petitioner's claim of fulfilling the tender conditions and the alleged arbitrary ousting from the tendering process.
Ratio Decidendi: The court held that the petitioner did not fulfill the requisite conditions of the e-NIT, while respondent No. 7 complied with the criteria, justifying the allotment.
Final Decision: The petition was dismissed as without merit, and all connected CMs were also dismissed. Interim orders, if any, were vacated, and no costs were awarded.
JUDGMENT :
MOKSHA KHAJURIA KAZMI, J.
1. By this petition, the petitioner has challenged and sought quashment of the orders dated 7th January, 2023 and 18th January, 2023 whereby the technical bid and the financial bid in question has been opened and the tender has been allotted in favour of respondent No. 7 to the exclusion of petitioner.
BRIEF FACTS OF THE CASE
2. A Tender, bearing E-NIT No. CEJ/PMGSY/28598 dated 07.01.2023 has been issued by the respondents for up-gradation of Road from MRL07-T02 Km Ist to Bhangra Maira via. Khara, Package No. JK05-3004, PMGSY-III, Batch-I of 2022-23 Block-Kharah Balli, District Jammu, length-10.995 kms. The petitioner, alongwith other eligible tenderers, responded to the same and complied with all the terms and conditions of the tender documents, however, the respondents declared the petitioner as non-responsive for the said NIT and opened the financial bid in favour of sole tenderer respondent No. 7 i.e. M/s A.H. Wani Infratech Pvt. Ltd.
3. The case of the petitioner is that the respondent No. 2 had issued a tender for the contractual work in question vide e-NIT No. CEJ/PMGSY/715 of 2022-23 dated 29.08.2022 wherein the petitioner while uploading the documents on the portal, in pursuance to the tender, duly filled in all the clauses and uploaded more documents than were required just to show the financial and the technical standing of the petitioner. Resultantly, respondent No. 2 declared the petitioner as responsive, but since the petitioner was sole bidder who qualified the bid, and other participants were declared non-responsive, the work package was put for fresh tender and fresh bids were invited vide e-NIT No. CEJ/PMGSY/723 of 2022-23 dated 14.11.2022 and the petitioner was included as bidder in the NIT. It is further stated that the tender was floated with respect to total 21 number of works with the PMGSY department but since respondent No. 2 declared the petitioner as the sole qualified bidder for the opening of the technical bid, therefore, the works were again tendered. It is stated that the petitioner raised this issue before this Court by filing WP (C) No. 2669/2022 and the court granted interim stay on 09.12.2022. Relevant portion of the order reads as under:
4. It is stated that the order passed by this Court on 09.12.2022 was duly served upon respondent Nos. 2 to 5 but despite that the petitioner was ousted from the said e-NIT No. CEJ/PMGSY/723 of 2022-23 dated 14.11.2022 as they went on to uploading the result of the technical bid vide Order No. SE/PMGSY/l/4431 dated 20.12.2022 making it open for financial bid on 26.12.2022. The action of the respondents was challenged by the petitioner in WP (C) No. 2804/2022, besides a Legal Notice dated 21.12.2022 was also served upon the respondents in this behalf but no action was taken by the respondents.
5. It is also stated that in terms of the impugned order dated 18.01.2023, though the petitioner had uploaded all the documents including the company audit report for the required five years along with the Income Tax Returns of the petitioner for all required five years but the respondents deliberately chose to oust the petitioner arbitrarily after having found him eligible previously upon the same set of documents uploaded on the portal. It is further stated that the respondents while passing the impugned order have violated the terms and conditions of the Standard Bidding Documents (hereinafter to be referred to as „SBD?) and also failed to acknowledge the fact that all the relevant documents citing the financial stability of the petitioner for required five years stands uploaded. In fact the petitioner is stated to have uploaded more documents than what was required in terms of the NIT.
6. It is stated that the petitioner has challenged the impugned orders dated 07.01.2023
The judgment emphasizes the importance of complying with tender conditions and the limited scope of judicial review in contractual and commercial matters.
The main legal point established in the judgment is the importance of strict compliance with essential tender conditions and the limited scope of judicial review in commercial matters.
The essential conditions of a tender must be strictly complied with, and the courts should exercise restraint in interfering with commercial matters.
The court highlighted the importance of adhering to the Standard Bidding Document (SBD) and Notice Inviting Tender (NIT) requirements, including the provision of accurate information, and emphasized ....
The court emphasized the need for judicial restraint in interfering with tender processes, especially in matters involving technical issues, and highlighted the limitations of the court's expertise i....
The court emphasized the principles of judicial restraint in administrative action, the lack of expertise of the court to correct administrative decisions, and the importance of public interest in te....
Judicial review of tender processes is limited; courts should respect the authority's discretion unless there is clear evidence of arbitrariness or irrationality.
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