Back
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
S.J. VAZIFDAR and ANUPINDER SINGH GREWAL, JJ.
M/s R.S. Labour and Transport Contractor - Petitioner
Versus
Food Corporation of India and others - Respondents
Civil Writ Petition No. 21863, 21864 of 2016(O&M)
Decided On : 06-03-2017
Blacklisting - Tender Evaluation - Clause 12 of Model Tender Form - [TECHNICAL BID, BLACKLISTING, MODEL TENDER FORM] - The court discussed the application of clause 12 of the Model Tender Form, which allowed the rejection of tenders and forfeiture of earnest money in case of cartelization. The court emphasized the importance of natural justice and proportionality in blacklisting decisions and held that the decision-making process must be fair and based on substantial evidence. The court also highlighted the illegality of a clause that automatically blacklists a party without affording an opportunity to be heard.
Fact of the Case:
The petitioners challenged the rejection of their technical bids for Mandi Transport and Labour Contracts, alleging cartelization. The official respondents rejected the bids and forfeited the earnest money, citing clause 12 of the Model Tender Form.
Finding of the Court:
The court found that the rejection and blacklisting of the petitioners were unjustified as the decision-making process lacked seriousness and fairness. The court emphasized the need for affording the petitioners an opportunity to respond to the allegations before blacklisting them.
Issues: The issues revolved around the rejection of technical bids, forfeiture of earnest money, and the legality of blacklisting based on clause 12 of the Model Tender Form.
Ratio Decidendi: The court held that the decision to blacklist a party must adhere to principles of natural justice and proportionality. It emphasized that blacklisting based solely on the forfeiture of earnest money without affording an opportunity to be heard is illegal and unreasonable.
Final Decision: The court allowed the writ petitions, quashing the decisions to blacklist the petitioners and directing the refund of earnest money with interest. The official respondents were permitted to initiate appropriate proceedings for blacklisting in accordance with the law, and the petitioners were granted liberty to seek compensation and damages.
S.J. VAZIFDAR, J.
1. It is not only convenient but necessary to consider both these petitions by a common order and judgment.
2(A) In CWP No.21863 of 2016, the petitioners have sought a writ of certiorari to quash the Technical Bids Evaluation Summary dated 10.10.2016 of the committee constituted by respondent No.1 rejecting their technical bid on the ground and with the remark:
“Cartelisation B/W RS Labour and Transport Contractor & Sushil & Co.”. The petitioners have also challenged a communication dated 10.10.2016 addressed by the official respondents informing the petitioners of this decision and that the earnest money deposited (EMD) by them was forfeited.
(B) In CWP No. 21864 of 2016, the petitioners have sought an order quashing the Technical Bids Evaluation Summary dated 10.10.2016 by which the petitioners’ technical bid was rejected by the committee. The rejection was on account of the forfeiture of the petitioners’ EMD in the above matter and a term in the tender documents disqualifying a bidder whose EMD is forfeited in any other contract by respondent No.1.
(C) In both the petitions, the petitioners have challenged the award of the work in favour of respondent No.3 and have sought a writ of mandamus directing respondent Nos.1 and 2 to consider their technical bids and to allot the tenders in accordance with law. Respondent No. 3 in CWP No. 21863 and 21864 of 2016 are one Gaurav Kumar and Shiva Transport Co., respectively.
3. The official respondents have not contended that the petitioners’ bids were not technically qualified for any other reason.
4. The official respondents issued an e-Notice dated 30.09.2016 inviting tenders for the appointment of a Mandi Transport Contractor for the Dhamtan, Kharal, Jind and Safidon Mandis in the Jind district, Haryana. In respect of this tender, the petitioners submitted their bid as a Mandi Transport Contractor only for the Jind Mandi.
On 30.09.2016, the official respondents also issued an e-Tender Notice for the appointment of a Mandi Labour Contractor for Safidon Mandi in district Jind. The petitioners submitted a bid for the same.
5(A) The tender notice, inter alia, states:-
“List of Documents to be uploaded in Technical bid folder/cover:
Technical Bid as per Appendix II:
…… ….. ….. …… …… …… …….
PRICE BID to be uploaded in Financial bid folder/cover:
(i) Signed scanned copy (in pdf format) of Price Bid/Offered rate as per Appendix-III.
NOTE:-For detailed terms and conditions, MTC MTF applicable may be referred.”
We have proceeded on the basis that the detailed terms and conditions of the Model Tender Form (MTF) are applicable. The following clause of the MTF was relied upon by the respondents:-
“Clause 12: In case of any clear indication of cartelization, the Corporation shall reject the tenders, and forfeit the EMD.”
(B) The petitioners’ bid for being appointed a Mandi Transport Contractor in respect of the Jind Mandi was rejected on the ground that they had formed a cartel with another party and that their bid was, therefore, liable to be rejected in view of clause 12 of the MTF. This decision is challenged in CWP No. 21863 of 2016.
6. Appendix-II of the e-Tender Notice pertains to the “TECHNICAL BID”. Clause (iii) thereof stipulates the “TECHNICAL EXPERTISE”. Sub-clause 5(ii) of clause (iii) contains the following note:-
“5. DETAILS OF SISTER CONCERNS
….… .…..… …..…… ..….. .…..… …..…. ..….. .….. ….. .……
NOTE:
….… .…..… …..…… ..….. .…..… …..…. ..….. .….. ….. .……
(ii) The parties whose EMD is forfeited by FCI will not be qualified.”
The official respondents considered the petitioners to be ineligible to bid for the Mandi Labour Contractor tender on the basis of this clause and in view of the petitioners’ EMD having been forfeited by the first respondent in respect of the other tender for the Mandi Transport Contractor for the Jind Mandi. This decision is challenged in the second petition viz. CWP No. 21864 of 2016.
7. The above terms and conditions are the same in both the e-Tender Notices
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
