The interpretation and application of the term 'litigation history' in the context of the tender process and its compliance with Article 14 of the Constitution.

Amitav K. Gupta, J.

The petitioner has prayed for issuance of appropriate writ for quashing/setting aside the decision of the Tender Committee dated 25.05.2017 as contained in Memo No. 2929(S) WE, dated 29.05.2017, declaring the technical bid of the petitioner as non-responsive and for issuance of direction upon the respondent/State of Jharkhand to declare the technical bid of the petitioner as responsive, consequent thereto, to open the price bid of the petitioner and to award the work to him by issuance of letter of intent/work order if the financial bid of the petitioner is found to be the lowest. In the alternative the petitioner has prayed for issuance of an order/direction for quashing and setting aside the words "litigation history", inserted in Clause 4.8 of the Standard Bidding Document (in short SBD) to the extent that it confers unbridled power to reject a bid of a qualified bidder in an arbitrary manner.

2. The case of the petitioner is that it is a registered partnership firm engaged in the business of civil construction including the construction of road, etc. The respondent/Road Construction Department, issued an E-procurement notice dated 20.03.2017 inviting the bids for the work of "widening & strengthening of Bundu Sonahatu-Jamudag-Jariya Road (MDR-026) from km 0.00 to 30.005 including construction of bridges for the year 2017-18". The E-procurement notice along with standard bidding document (for short 'SBD') was uploaded on the web-site of the State Government. The eligibility criteria was prescribed in Clause 4 of the said SBD. The petitioner was fulfilling the prescribed eligibility criteria. He was desirous for undertaking the work in question and participated in the tender process along with 10 other bidders, however, the technical bid of the petitioner was declared as non-responsive, by the Tender Committee in the meeting held on 25.05.2017 vide Annexure-2.

3. Learned counsel for the petitioner has urged that the bid of the petitioner was found to be non-responsive in terms of Clause 4.8 of the SBD on the ground that the petitioner has "litigation history". It is contended that such declaration of the bid of the petitioner as non-responsive is actuated with bias and malice in law.

4. It is submitted that petitioner had disclosed that F.I.R No. 45 of 2015 dated 26.07.2015 was instituted against him as well as the officials of the State of Chhattisgarh. In the said FIR no allegation was levelled with respect to the quality of the work rather the allegation was that sanction was granted in respect of non-schedule items at a higher amount (photocopy of the FIR is appended as Annexure-3). It is argued that till date charge-sheet has not been submitted and the government officials named in the FIR are discharging their duty and no action has been taken against them by the State of Chhattisgarh.

5. It is urged that the petitioner had no role to play in the sanction of rates of non-schedule items and the contract awarded to him. It is contended that mere lodging of an FIR cannot be a ground for disqualifying the petitioner on the ground that he has "litigation history" in terms of the words and condition in Clause 4.8 of the SBD. It is argued that the expression and word "litigation history" in clause 4.8 has been inserted with an intent and object to confer unbridled power for rejecting the bid of an otherwise qualified bidder in an arbitrary, malafide and discriminatory manner.

6. Learned counsel has referred to the meaning of the word 'litigate and litigation' as defined in the Black's Dictionary, 10th Edition, and New Webster's Dictionary. It is submitted that the term "litigate" means 'to contest in law; to carry on a law suit' and argued that considering the meaning and definition of the term 'litigation' or 'litigate' it is manifest that mere pendency of FIR cannot be termed as "litigation history" and the said term in Clause 4.8 of SBD cannot be resorted to for declaring the petitioner's bid as non