JUDGMENT

Amitava Roy, C.J.

1. The decision to reevaluate the technical bid of the opposite party No. 3 after adjudging the same to be non-responsive initially is the subject matter of impugnment in the instant petition. We have heard Mr. G.M. Rath, learned counsel for the petitioner, Mr. J.P. Patnaik, learned Addl. Government Advocate on behalf of the State-opposite party and Mr. R. Roy, learned counsel for opposite party No. 3.

2. Trimming down the inessentials, the pleaded facts indispensable for the present adjudication are that the Government of Odisha, Works Department through the Chief Engineer (DPI & Roads) Odisha, Nirman Soudha, Unit-V, Bhubaneswar (opposite party No. 2) did invite bids vide Bid Identification No. CE-DPI & R-18/2013-14 dated 06.07.2013 through e-procurement Portal for execution of the work of "Construction of Bridge over Dhanua Nallah at 3rd KM on Satyabhampur-Bhingarpur Road under State Plan for the year 2013-14". The bidding process was proclaimed to be comprised of two parts i.e. technical bid and price bid. In response to that notice, the petitioner and opposite party No. 3 offered their bids, when after the Technical Evaluation Committee on 02.09.2013 disqualified the technical bid of the opposite party No. 3 for not fulfilling the norm of work experience as required under Clause 14(ii) of the Detailed Tender Call Notice (for short, hereinafter referred to as 'the DTCN'). Subsequent thereto, the financial bid of the petitioner was opened on 21.09.2013 and it was intimated to attend the office of the opposite party No. 2 for negotiation of the rate offered by it, which in fact followed. Consequently, the petitioner's bid was adjudged to be the lowest.

When the matter stood thus, the opposite party No. 3 approached this Court in W.P.(C) No. 23618 of 2013 challenging the rejection of his technical bid and by interim order dated 4.11.2013, this Court directed that further proceedings in the process be kept in abeyance. The petitioner, on receiving the notice/writ petition, entered appearance and filed an application for vacation of the ex-parte interim order contending, inter alia, that the opposite party No. 3 had suppressed, more particularly, the fact that its technical bid had been rejected as it was held to be disqualified for not fulfilling the essential condition of work experience as contained in the DTCN. The writ petition, however, was eventually dismissed as withdrawn on a prayer of the opposite party No. 3 on 24.04.2014.

On enquiries being made, according to the petitioner, it came to learn that in between, during the pendency of the writ petition, the opposite party No. 2 had unilaterally recalled the decision of the Tender Evaluation Committee rejecting the technical bid of the opposite party No. 3 as non-responsive and had adjudged it to be qualified for further participation in the process. The petitioner has averred that the withdrawal of the writ petition of the opposite party No. 3 thus was, as a consequence of this development stemming from a connivance between the opposite party No. 2 and 3. The challenge has been laid in this backdrop.

3. The opposite party Nos. 1 & 2 in their counter while admitting that the Tender Evaluation Committee initially had disqualified the technical bid of the opposite party No. 3 on the ground of lack of 'bridge works experience' as per Clause 14(ii) of the DTCN, have pleaded that subsequent thereto the Tender Committee as designated in paragraph 6.3.15 of the O.P.W.D. Code Volume-I, re-examined the decision so taken and concluded on 27.09.2013 that the said bid was qualified on the following terms:

(i) Clause 14(ii) of the DTCN was not a mandatory requirement in view of the stipulation in Clause 122 of the said notice.

(ii) The work involved has a major role in facilitating pilgrimage to Lord Jagannath, Puri in the coming Nabakalebara of 2015 and thus warranted time bound completion.

(iii) The issue was resolved within the frame work of the tender conditions