Debarment or foreclosure of contracts cannot serve as permanent disqualifications for bidders in tender processes, particularly when significant time has elapsed since the event.

ORDER :

Ananda Sen, J.

1. The writ petitioner-appellant has preferred this Letters Patent Appeal against the judgment dated 22.06.2022 passed in W.P.(C) No. 260 of 2022, whereby learned Single Judge has dismissed the writ petition filed by the writ petitioner-appellant.

2. Learned counsel appearing on behalf of the appellant submits that the ground for not entertaining the technical bid of the appellant is absolutely bad, which has not been properly appreciated by the learned Single Judge while dealing with the writ petition. It is his contention that on two grounds, the appellant was declared technically unfit and both the grounds are nonest. The technical bid of the appellant was rejected on two grounds, namely, (1) foreclosure of contract of the appellant by the Government of Gujarat vide letter dated 08.11.2011 and (2) foreclosure of contract of Murliwala Agrotech Pvt. Ltd. (which is a group company of this appellant, having financial linkage) by the Government of Gujarat. Both the appellant and M/s Murliwala Agrotech Pvt. Ltd. are separate legal entities and interse share holding and financial linkage cannot be a ground to technically disqualify this appellant in this tender. So far as foreclosure of contract of the appellant by the Government of Gujarat is concerned, learned counsel submits that after foreclosure, there was an extension of the same agreement by the ICDS, Gujarat, which amounts to obliterating the foreclosure. This was also entertained by the Hon’ble Gujarat High Court. The Government of Gujarat itself permitted the appellant to complete the work and he further submits that even if the foreclosure is taken into account, though disputed, since the same happened in the year 2011, now after more than 11 years, the said stigma or impediment cannot be said to subsist. He submits that these facts have not been considered properly by the learned Single Judge.

3. Learned counsel appearing on behalf of the State and the private respondents, i.e., the successful tenderers, contend that the technical bid of the appellant was rightly rejected as admittedly, the agreement by one of the group companies of the appellant, namely, Murliwala Agrotech Pvt. Ltd. with Government of Gujarat was foreclosed. Pattern of share holding of Murliwala Agrotech Pvt. Ltd. and that of the appellant would suggest that majority of share holders are common and there is deep financial relationship between these two companies. They also submitted that the Government of Gujarat foreclosed the agreement of the appellant, which is also a disqualification. The respondents lastly submit that so far as the instant tender is concerned, the successful tenderers have entered into agreement with the State / instrumentalities of the State and have already complied the major part of their obligation of supply of the materials. Thus, they submit that no relief can be granted to the appellant in this Letters Patent Appeal.

4. In reply to the above, learned counsel for the appellant could not dispute the fact that major portion of the obligations under the contract / agreement have already been complied by the private respondents by supplying the product.

5. After going through the impugned order and the documents, we find that the Directorate of Social Welfare, Department of Women, Child Development and Social Security, issued a Notice Inviting Tender bearing e-tender reference No. PRO-01/2021-22 on 17.11.2021 for supply of “Micronutrient Fortified and/or Energy Dense Food (MFEDF) as supplementary nutrition for distribution under the Anganwadi Services Scheme of Umbrella ICDS through Anganwadi Centres. The appellant submitted the bid with requisite documents on 17.12.2021. Appellant’s technical bid was rejected by the Purchase Committee in its meeting held on 18.01.2022. The grounds for rejection are : (i) the action foreclosure of agreement was taken by the Department of Women & Child Development, Gandhinagar, Gujarat; (ii) Agreement of a company namely M/s Mur