Arbitrariness in tender rejection and the requirement for reasonable cooperation from involved parties in the tender process.

Headnote:
Tender Rejection - Construction Work - Arbitrariness in Tender Rejection
Fact of the Case:

The petitioner, a registered Class I contractor, participated in a tender for construction work but was rejected due to insufficient document upload. The petitioner filed a writ petition challenging the rejection.
Finding of the Court:

The court found that the rejection of the petitioner's bid was arbitrary and illegal, as the petitioner had made efforts to comply with the requirements and the third respondent's lack of cooperation was evident. The court allowed the writ petition and directed the petitioner's tender to be considered on par with others.
Issues: The main issue was the rejection of the petitioner's tender due to insufficient document upload and the alleged lack of cooperation from the third respondent.
Ratio Decidendi: The court inferred from the evidence that the petitioner had made reasonable efforts to comply with the tender requirements, and the lack of cooperation from the third respondent indicated arbitrariness in the rejection.
Final Decision: The writ petition was allowed, the rejection of the petitioner's bid was set aside, and the petitioner's tender was directed to be considered on par with others. No costs were awarded.

ORDER

Heard both sides.

2.The writ petitioner is a registered Class - I contractor. The second respondent issued tender notice dated 06.02.2024 inviting tenders from eligible contractors for the work of construction of additional building in Government Hospital at Kulasekaram in Kanyakumari District. The last date for submission of the tender was 15.02.2024 up to 03.00 p.m. The petitioner was one of the participants. His tender was rejected on the ground that due to uploading of insufficient documents.

Challenging the same, the present writ petition came to be filed.

3.The learned counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to set aside the impugned order and grant relief as prayed for.

4.The learned Additional Advocate General appearing for the respondents submitted that the petitioner was obliged to upload site verification certificate as per Condition No.8. Since in this case such certificate was not uploaded, the petitioner was rejected at the technical scrutiny stage itself. He also would point out that the third respondent has no ill will towards the petitioner. The petitioner at present is carrying out quite a few contract works for Public Works Department. In fact, the third respondent himself had recently issued such certificate in favour of the petitioner. The stand of the respondents is that the petitioner did not approach the third respondent for such certificate and to create record, he sent a letter by registered post. It was delivered in the office of the third respondent only at 05.30 p.m on 14.02.2024. The third respondent responded to the said communication on 15.02.2024 itself. According to the respondents, there is no arbitrariness involved. They called upon this Court to sustain the impugned order and dismiss the writ petition.

5.I carefully considered the rival contentions and went through the materials on record.

6.The tender notice contains the following condition:

“8. The contractor who quotes tender should personally visit the work site and submit a visit Certificate issued by the concerned Executive Engineer.”

This is a vital document without which the petitioner's tender application would be rejected. Issuance of such certificate is not entirely in the hands of the petitioner. It requires the co-operation of the concerned official. Tender notice was issued on 06.02.2024. The last date for submission of tender was 15.02.2024 up to 03.00 p.m. The petitioner is a serious player. It is not as if he is batting for some third party. He is a Class - I contractor registered with the department. The petitioner states that he did approach the third respondent in his office but the third respondent did not extend his co-operation. In paragraph 2 of the affidavit filed in support of the writ petition, a categorical averment in this regard has been made. The question is whether this claim of the petitioner sounds probable. Section 114 of the Indian Evidence Act, 1872 empowers the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

7.The petitioner had sent a letter making a request in this regard on

10.02.2024 itself. Letter was sent under registered post with acknowledgment due. On 14.02.2024, the petitioner had visited the site and taken photographs. The duty Doctor as well as the duty nurse are found in the photograph.

8.From this I can safely infer that the petitioner did make a request to the third respondent in person on 10.02.2022 itself but the third respondent did not extend his co-operation. Section 3 of the Indian Evidence Act, 1872 defines proof in the following terms:

“Proved.––A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its exis

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