The main legal point established in the judgment is the requirement for strict compliance with essential conditions in a tender, and the need for substantial compliance with the broader objectives of the contract.

JUDGMENT :

The extraordinary writ jurisdiction conferred on this Court under Article 226 of the Constitution of India is invoked by the petitioner-firm for issuance of a writ, an order or a direction in the nature of certiorari quashing the decision of respondents 1 to 4 [‘the official respondents’]taken on 24.12.2022 vide No.CEJ/PMGSY/27462, issuing “Revised Summary of Technical Evaluation Report” in respect of work for up-gradation of road from T01 Sira to Shivgali, Package No. JK143008, PMGSY-III, Batch No. I of 2022-23, Block Latti, District Udhampur Length-32.150 kms [‘the subject work’]. A further writ or direction in the nature of mandamus is sought against the official respondents for restraining them from opening the financial bid or to proceed further in pursuance of e-NIT No. CEJ/PMGSY/723 of 2022-23 dated 14.11.2022.

Factual matrix:

2. Vide e-NIT issued on 14.11.2022, the official respondents invited bids for various developmental projects across the UT of Jammu and Kashmir which also included the subject work. The petitioner-firm, being eligible in terms of the e-NIT, participated in the tendering process by submitting its bid within the stipulated time.Apart from the petitioner, four other bidders including the respondent No.5 also participated in the bidding process. As is stipulated in the e-NIT, the bidding process envisaged two stages i.e Part I and Part II and, therefore, the bidders were required to submit technical bid and the financial bid separately. The bidders, who would qualify and are declared ‘responsive’ during technical evaluation of the bids, were alone entitled to participate in the price bid.

3. On 20.12.2022, the Chief Engineer PMGSY, Jammu, who was heading the Technical Evaluation Committee, issued a brief summary of technical evaluation report in respect of subject work. In the brief summary issued by the Chief Engineer, it was indicated that, out of five bidders, who had participated in the tender process, only two bidders were found responsive and technically qualified to participate in the price bid. Respondent No.5 was, however, declared ‘non-responsive’ for the reason that the annual turnover certificate submitted by the second joint venture partner M/S Tarmech Road and Roof Builders did not have Unique Document Identification Number [‘UDIN’] of Institute of Chartered Accountants of India mentioned in the certificate, which was the mandatory requirement of clause 4.4 B(a)III(a)of Instructions to Bidders [‘ITB’]. The requisite information in this regard was uploaded by the official respondents in their official website.

Respondent No.5, who was declared ‘non-responsive’ in the technical evaluation of bids, submitted a representation to the official respondents in terms of clause 22.6 of ITB which provides five working days’ time to the aggrieved bidder to submit his/her complaint. In its complaint dated 23.12.2022, it was projected by respondent No.5 that as per the Standard Bidding Document(SBD), prescribed qualifying criteria is that the bidder must have achieved the required amount of turnover in any one out of the last five financial years and, therefore, the latest year’s turnover of JV Partner M/S Tarmech Road and Roof Builders meets the qualifying criteria and, as such, the issue may be reconsidered. It was stated by respondent No.5 that it has been disqualified and declared ‘non responsive’ only because of the omission of the members of the Evaluation Committee to take note of the last year’s turn over certificate which was fulfilling the qualifying criteria laid down in SBD.

5. It seems that upon consideration of complaint made by respondent No.5, the matter was reconsidered by the Technical Evaluation Committee. The respondent No.5 was declared ‘responsive’ and consequently, Revised Summary of Technical Evaluation Report was put on e-procurement portal.It is this change of decision made and published by the Technical Evaluation Committee in the form of Revised Summary of Technical Ev