JUDGMENT :

B.R. SARANGI, J.

The Petitioner, which is a Proprietorship Firm and is a Working Contractor of the East Coast Railway, being represented through its Proprietor, has filed this Writ Application seeking to quash Annexure-4, dated 17.08.2021, by which the offer submitted by the Petitioner has been considered as non-compliant and bypassed, in view of non-submission of undertaking regarding “not blacklisted or debarred by Railways or any other Ministry/Department of Govt. of India from participation in Tender on the date of opening of the bids”, which was mandatory to be submitted in the Tender offer.

2. The factual matrix of the case, in a nutshell, is that the East Coast Railway, through Opposite Party No.6, floated an E-Tender Notice for the work “Modification of power line crossings (33 KV/ 11 KV/ LT) between Sonepur to Boudh Railway Station in connection with new line between Khurda Road-Bolangir Project” calling upon the eligible bidders to participate. Pursuant to such E-Tender Notice, the Petitioner participated in the Tender process by filing its bid satisfying the credentials prescribed in Clause-11 of the Tender document. In the event of noncompliance of the conditions stipulated in Clause-11, the bid of the tenderer was to be rejected, as per Clause-12 of the Tender Call Notice. Amongst the nine number of bidders participated in the Tender process, the Petitioner was ranked as L4. Since L1 to L3 bidders were ousted from the Tender process for technical reason and the Petitioner was next in the line being L4 to qualify in the biding process and the contract ought to have been settled in his favour, but due to non-compliance of the provisions contained in Clause-14, its offer was considered as noncompliant and bypassed, as it had not submitted the undertaking regarding not blacklisted or debarred by Railways or any other Ministry/Department of Govt. of India from participation in the Tender on the date of opening of the bid, which is mandatory to be submitted in the Tender offer. Hence, this Writ Petition.

3. Mr. Somya Ranjan Mohanty, learned Counsel appearing for the Petitioner, vehemently contended that compliance of Clause-14 of the Tender Call Notice is not mandatory one. According to him, the Petitioner has got all the Tender credentials as per Clause-11. Clause-12 of the Tender Conditions clearly specifies that non compliance with any of the conditions set forth “therein above”, is liable to result in the Tender being rejected. It is further contended that “therein above” means the Clauses mentioned from Clause-1 to Clause-11. If any of the conditions, as stipulated from Clause-1 to 11, has not been satisfied or complied with, the Tender has to be rejected. The Petitioner, having complied with such conditions, its Technical Bid was opened and found to be qualified. Thereafter, the Price Bid was also opened and the Petitioner was ranked L4. But due to non-compliance of Clause-14, which is not mandatory, rather, it is ancillary to the bid, the offer submitted by the Petitioner was considered as non-compliant and bypassed, which is arbitrary, unreasonable and contrary to the provisions of law as well as Tender Conditions. It is further contended that in the Tender document nowhere it is stipulated that due to non-compliance of Clause-14 and non-submission of the undertaking will entail rejection of the offer of a Tenderer, whereas Clause-14 clearly prescribes that concealment/ wrong information shall make the contract liable for determination under Clause-62 of the General Conditions of Contract. Even though the Petitioner had filed its representation on 12.08.2021 under Annexure-3 specifically taking a stand that the Petitioner has not been blacklisted or debarred and non-submission of such undertaking was merely a r