The authority's decision to disqualify the petitioner based on past performance without notice or opportunity to be heard was arbitrary and violated Article 14 of the Constitution of India.

JUDGMENT :

B.R. Sarangi, J.

Chief Engineer (Buildings), Works Department, Government of Odisha, Office of the Engineer in-Chief (Civil), Odisha, Bhubaneswar issued Invitation For Bids (IFB) on 05.11.2014 for the work “Construction of 300 seated Girls Hostel Building at Women’s College, Koraput G Plus 2”. The last date of submission of bid was 02.12.2015 and the date of opening of technical bid was fixed to 07.12.2015. Pursuant to such Invitation For Bids (IFB), four bidders, namely, Damodar Engineers Pvt. Ltd., D.K. Engineering, Damodar Patnaik and PKP Buildcon Pvt. Ltd, submitted their bids. The technical bids were opened on the date fixed and all the four were declared technically qualified. The financial bids of the four bidders were opened on 30.12.2015, in which the petitioner was the lowest one on the basis of the documents produced by it. Even though the petitioner was the lowest bidder, since no work order was issued in its favour, the petitioner approached this Court by filing this writ petition seeking for direction to accept its lowest and valid tender and award the work in question in its favour.

2. Mr. S.K. Sanganeria, learned counsel appearing for the petitioner states that the nature of work has been indicated in the Invitation For Bids (IFB) dated 05.11.2014 as building work (composite work). As the petitioner has got the experience of executing similar nature of work and having quoted lowest price was declared as L-1 and is also otherwise eligible, the work order should have been issued in its favour. But, the Tender Committee in its proceedings held on 15.02.2016 disqualified the petitioner as per Clause-3.4(b) of Instructions To Bidder (for short “ITB”) and Clause-108(b) & (d) of Detailed Tender Call Notice (for short “DTCN”) and such decision having been taken without issuing any notice to the petitioner or affording any opportunity of hearing, there is gross violation of principles of natural justice. Therefore, the petitioner seeks for interference of this Court in the present writ petition.

3. Mr. P.K. Muduli, learned Additional Standing Counsel appearing for the opposite parties states that in view of the provisions contained in Clause-108(b) & (d) of the DTCN, a bidder can be disqualified for past record of poor performance and inordinate delay in completion of the work, even though it qualified the criteria, and, similarly as per Clause-3.4 (b) of the ITB, a bidder can be subjected to disqualification if it has record of poor performance, such as, abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history or financial failures etc. In the instant case, even though the petitioner had qualified the criteria, it was found disqualified due to the provisions of Clause-108(b) and (d) as well as Clause-3.4(b). Due to such disqualification, the authority has not committed any illegality or irregularity. He strenuously urges that in view of the provisions contained in para-3.5.14 of the Orissa Public Works Department Code Volume-1 read with Clause 3.4(b) of the ITB and Clause-108(b) & (d) of DTCN, even though the petitioner is the lowest bidder, by taking into consideration its past experience the authority has got power not to accept its bid, thereby no illegality or irregularity has been committed. He further states that the provisions for compliance of the principles of natural justice, in contractual matters, are not required. To substantiate his contention, he has relied upon Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC 517.

4. In view of the aforesaid contentions raised by the learned counsel for the parties and on perusal of the records, since the pleadings have been exchanged between the parties, with their consent the matter has been taken up for final disposal at the stage of admission.

5. The undisputed fact is that pursuant to E-tender notice published on 05.11.2014, the petitioner along with three others had submitted their bids and all