The court emphasized the commercial considerations in awarding contracts, the limitations of judicial review in contractual matters, and the requirement for fair treatment in the evaluation of competitive bids.

JUDGMENT :

Dr. B.R Sarangi, J.

Being aggrieved by the letter dated 20.02.2016 issued by the Chief Engineer (DIP & ROADS), Odisha, Office of the Engineer-in-Chief, Civil, Odisha, (Annexure-8), rejecting the allegation of the petitioner and accepting the tender of the first lowest bidder-Sri Banti Kumar Agarwal, opposite party no.4, the present writ petition has been filed.

2. By orders dated 21.03.2016 and 04.04.2016, learned counsel for the State was directed to obtain instruction in the matter and on the basis of the instruction received, the writ petition is finally heard and disposed of with the consent of the learned counsel for the parties without calling for counter affidavit.

3. Mr. D. Mund, learned counsel for the petitioner strenuously urged that as per Clause-3.17 of the Detailed Tender Call Notice (DTCN), due no non-disclosure of information, the EMD/BID security shall stand forfeited and registration in the quota shall be blocked and the bidder is liable to be blacklisted. It is further urged that the L1 bidder (opposite party no.4) having suppressed the material facts, which are required to be disclosed and non-disclosure of some ongoing projects is violative of Clause-3.17 of the DTCN and therefore, the offer made by the said opposite party no.4 is liable to be rejected. He further submitted that even though the petitioner raised objection, the same has not been considered by the authorities in proper perspective and impugned letter vide Annexure-8 has been communicated stating that the allegation made by the petitioner is not based on facts and thus, the same is rejected. According to him, in the event, the first lowest bidder- Banti Kumar Agarwal is not eligible, the petitioner being the second lowest bidder, is entitled to be awarded with the work as per Clauses-9.2 and 10.4 of the DTCN.

4. Mr. B.P. Pradhan, learned Addl. Govt. Advocate raised a preliminary objection with regard to the maintainability of the writ petition and urged that the action taken by the opposite party-authorities is well within the conditions stipulated in the DTCN and the allegations made that the fact has not been disclosed, which the first lowest bidder is required to be disclosed under Clause 3.17, are absolutely baseless and therefore, stated that since the opposite party-authorities have acted in consonance with the provisions of DTCN and no illegalities and irregularities have been committed, the writ petition is liable to be dismissed.

5. Mr. P.C. Nayak, learned counsel appearing for opposite party no.4 supporting the contentions raised on behalf of the learned counsel for the State, stated that opposite party no.4 being the first lowest bidder, he is eligible to execute the work in question in terms of the DTCN issued by the opposite party-authorities and as such, no illegalities and irregularities have been committed by the authority in selecting opposite party no.4 for execution of such work.

6. Having heard learned counsel for the parties and after going through the records, it appears that the Engineer-in-Chief (Civil), Odisha invited tender in relation to the work “Widening and Strengthening of Sohela-Nuapada Road (SH-3) to 4-Lane Carriageway from 101/125 KM to 117/955 KM in the district of Nuapada under Biju Expressway” having Bid Identification no. CE-DPI & R-14/2015-16 with estimated cost of Rs.46,58,45,496.00 on 30.10.2015 and the time schedule has been fixed for availability of bid document on “online bidding” from 10.00 A.M. of 30.11.2015 to 5.00 P.M. of 05.12.2015. The bid received on “online” shall be opened at 11.30 hours on 10.12.2015 in the office of the Engineer-in-Chief (Civil), Odisha, Nirmana Soudha, Unit-5, Bhubaneswar in the presence of the bidders, who wish to attend and the bidders who participated in the bid can witness the opening of bids after logging on to the site through their DSC. As per Clause-7 of the check list, which contains “work experience” the bidder has to furnish (A) the list of projects that a