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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJAY DHAR, J.
M/s Green Earth Infrastructure Pvt. Ltd. – Appellant
Versus
Union Territory of J&K and others - Respondents
WP(C) No. 327 of 2024
Decided on : 22-03-2024
Tender Evaluation - Technical Bid Evaluation - Disclosure of Litigation History - NIT 1 of 2023-24 - SBD Clauses 4.3, 4.8, 2.2, 2.2.1 - Waiver of Condition - Judicial Review - Financial Prudence
Fact of the Case:
The petitioner challenged the Technical Evaluation Summary and Financial Bid Opening Summary issued by the official respondents, alleging non-disclosure of litigation history by the lowest bidder, respondent No. 4. The petitioner contended that the condition of disclosing litigation history was mandatory, while the official respondents argued it was not. The petitioner also alleged mala fides due to the absence of the Chief Engineer during the decision-making process.
Finding of the Court:
The court found that the condition of disclosing litigation history was mandatory as per the Standard Bidding Documents (SBD). However, the court held that the decision to waive off this condition was within the authority of the official respondents. The court emphasized that judicial review in commercial tender matters should focus on lawfulness, not soundness, of the decision. The court also noted the financial prudence of the decision, as the lowest bidder's quote was significantly lower than others.
Issues: 1. Whether the condition of disclosing litigation history was mandatory. 2. Whether the decision to waive off this condition was amenable to judicial review. 3. Allegations of mala fides due to the absence of the Chief Engineer.
Ratio Decidendi: The court held that the employer is best suited to interpret tender documents and decide on essential conditions. Judicial review should focus on lawfulness, not soundness, of the decision. The court emphasized that the decision-making process should not be arbitrary or irrational. The court also noted that financial prudence and public interest should be considered in tender decisions.
Final Decision: The court dismissed the writ petition, finding no merit in the petitioner's challenges. The decision to waive off the condition regarding disclosure of litigation history was upheld, and the allegations of mala fides were deemed without merit.
JUDGMENT :
1. The petitioner has called in question Technical Evaluation Summary Sheet/Report dated 14.02.2024 issued by a Committee headed by the Chief Engineer, respondent No. 2 herein, whereby respondent No. 4-firm has been declared as technically qualified/responsive in respect of bid relating to allotment of contract work “construction of road from Dharmala Saleri to Danti Killa”. Challenge has also been thrown to Financial Bid Opening Summary Sheet dated 14.02.2024 issued by respondent No. 2, whereby respondent No. 4-firm has been declared as lowest bidder.
2. Briefly stated, the facts, which emerge out of the pleadings of the parties are that respondent No. 2 issued e-NIT 1 of 2023-24 dated 24.11.2023, whereby tenders were invited for allotment of civil works including the work relating to construction of road from Dharmala Saleri to Danti Killa in District Rajouri. The estimated cost of the work was to the tune of Rs. 810.00 lacs. Bids submission start date was 25.11.2023 and bids submission end date was 15.12.2023, which was later on extended to 21.12.2023. The technical bids were to be opened on 05.02.2024. The petitioner as well as respondent No. 4 and five more entities responded to the e-NIT. Upon opening of technical bid on 05.02.2024, the petitioner as well as respondent No. 4 along with two more entities, namely, M/s. DRF Infra Builders Pvt. Ltd and Vijay Suri were declared as responsive, whereas M/s New Emerging SHG Construction, M/s S.S. Construction Corporation and Randhir Singh and Company were declared as non responsive.
3. It seems that the petitioner filed objections to the result of technical evaluation of the bids undertaken by the official respondents, wherein it was highlighted that respondent No. 4 had concealed the information with regard to the litigation history as the same was to be mandatorily to be disclosed by the bidders in terms of Clause 4.4(l) of the Standard Bidding Documents(SBD). The petitioner also filed objections in respect of result of technical evaluation regarding M/s Vijay Suri, as according to the petitioner, the said contractor had not provided or uploaded any methodology and programme of construction and quality assurance programme along with its bid documents, which was to be mandatorily to be provided in terms of clause 2.2.1.16 of Section 2 of the SBD.
4. Upon receipt of objections from the petitioner, it seems that the Chief Engineer-respondent No. 2 vide his communication dated 07.02.2024 directed Superintendent Engineer, respondent No. 3 herein to clarify whether respondent No. 4 has filed any litigation against the indenting department. Respondent No. 3 vide his letter dated 13.02.2024 provided the requisite information to the Chief Engineer clearly stating therein that respondent No. 4 has filed a litigation against the indenting department,. The details of the litigation were also indicated in the said communication.
5. It is being alleged by the petitioner that respondent No. 2 even after receiving the report from respondent No. 3, did not act upon the same and without deciding the objections raised by the petitioner, the said respondent proceeded to issue the impugned Revised Technical Evaluation Summary Sheet on 14.02.2024, whereby respondent No. 4 was declared as responsive, but so far as the firm M/s Vijay Suri is concerned, it was declared as non responsive. Thereafter, the official respondents opened the financial bid on the same day i.e. 14.02.2024 and declared respondent No. 4 as the lowest bidder(L1).
6. It is the case of the official respondents that upon receipt of objections from the petitioner, the same were considered and a meeting was held on 13.02.2024 wherein it was decided by the Technical Evaluation Committee headed by the Chief Engineer that the litigation of the respondent does not deviate any serious condition of the SBD and that the same was waived off, whereafter, on 14.02.2024, the impugned Revised Technical Evaluation Summary Sheet was uploaded,
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