Failure to disclose material facts in bid documents renders the bid non-responsive.

JUDGMENT :

SRI S.K. MISHRA, J.

In this intra-court appeal, the appellant-writ petitioner being the unsuccessful bidder has assailed the order dated 18.11.2020, passed by the learned Single Judge, in Writ Petition (M/S) No.674 of 2020.

2. Briefly, the facts of the case are as follows:-

On 04.12.2019, the State of Uttarakhand through Department of Rural Development invited tenders. On 24.01.2020, the technical bids were evaluated and the bid of the appellant, and that of M/s L.D. Binwal, respondent No.4 herein, and M/s Panchghati Constructions were declared responsive. On 06/07.02.2020, a complaint was lodged by M/s L.D. Binwal, i.e. the successful bidder, which was forwarded to the appellant, and a reply of the same was sent by the appellant on 07.02.2020. Thereafter, on 03.03.2020, Technical Evaluation Committee, which has already declared the technical bid of the appellant responsive on 24.01.2020, declared the technical bid of the appellant as non-responsive. On 05/06.03.2020, the decision of the Technical Evaluation Committee was uploaded by the respondents. Thereafter, the writ petition was filed, wherein the petitioner-appellant before this Court sought for a writ of certiorari quashing the order dated 03.03.2020 passed by the Technical Evaluation Committee, accepting the complaint made by a competing bidder, without assigning any reason, and declaring the already responsive technical bid of the appellant as non-responsive. The appellant-petitioner further prayed for a writ of mandamus declaring M/s L.D. Binwal’s technical bid as non-responsive because of the fact that it has not disclosed, in his bid document about the pendency of the writ petition against the same department.

3. The learned Single Judge heard the parties, and came to the conclusion that the decision of the Technical Evaluation Committee, in treating the appellant’s technical bid as non-responsive, is not illegal. However, it is apparent from the record that there is no finding as to the plea taken by the appellant-petitioner before the learned Single Judge that the successful bidder, i.e. M/s L.D. Binwal, is also non-responsive because of the non-disclosure of the pendency of cases in this Court.

4. At this stage, it is not disputed that, though, this issue was raised, pointedly, by the appellant-petitioner, no finding has been given by the learned Single Judge. It is also not disputed by any of the parties that, in fact, the Writ Petition (M/S) No.975 of 2019 was pending before this Court at the time of submission of bid documents, but as per clause 1.9, the private contesting respondent has not mentioned about such pendency of the writ petition before this Court. It is also not disputed that after receiving the objections, and before deciding the objection, the writ petition was withdrawn by the private respondent.

5. Mr. Shobhit Saharia, the learned counsel for the appellant-petitioner, would argue that he will not press the question of declaring the appellant’s technical bid as non-responsive, but he would argue that the acceptance of technical bid of the respondent No.4, M/s L.D. Binwal was not only improper, but illegal in view of the specific finding given in a combined judgment passed by the learned Single Judge in Writ Petition (M/S) No.3044 of 2018, “M/s Super Construction Associates vs. State of Uttarakhand & others (being the leading case)”, and other connected writ petitions, decided on 10.04.2019.

6. In the said judgment, the learned Single Judge, at Paragraph No.12, has held that the Court has no doubt that the petitioner had concealed a material fact while submitting his bidding documents. It was absolutely mandatory upon the petitioner to have furnished the information about the litigation history, particularly when this litigation was regarding the contract with the same department. The learned Single Judge further held that the petitioner has, admittedly, not furnished this information. Although, that writ petition was subsequently withdrawn