O R D E R

Respondents No. 1 to 4 floated tenders for the construction of link road from “Khatnol to Dandibag from Kms 0/00 to 6/150 (SH:- formation cutting 5/7 mts wide road Kms 0/00 to 6/150 C.D. work, Kharanja Stone soling, PCC parapets, Kacha Road side drain Km. stone & dumping site) under NABARD RIDF XXVI District Shimla, Himachal Pradesh.

The date of issuance of notice inviting bid was 10.5.2021 and deadline for submitting the bid was 24.5.2021. Petitioner, who is a registered A-Class Contractor, being fully eligible submitted his bid, however Bid Evaluation Committee decided to recall the tender for the work in question.

2. Being aggrieved and dissatisfied with the afore decision of the respondents, petitioner filed CWP No. 4411 of 2021, however, co-ordinate Bench of this Court, having taken note of the fact that respondents before accepting the tender of any of the bidder decided to recall the tender, dismissed the petition holding that there is no right for the petitioner to challenge the same.

3. Respondents invited fresh tenders qua the work detailed herein above. Petitioner alongwith other eligible candidates participated in the second tendering process, however Bid Evaluation Committee after having evaluated the documents submitted by various bidders including the petitioner found respondent No.5 to be lowest bidder. As per the Financial Evaluation Bid, petitioner who was shown as L-2 made a bid for a value of Rs.3,89,77,295.60/-, which is at (-) 34% of the tendered amount, whereas respondent No.5 made a bid to the tune of Rs.3,74,39,933.60/- i.e. 36% lower than the tendered amount of Rs. 5,87,17,104/- (Annexure P-7). Since earlier bid submitted by the petitioner qua the same work, which is subject matter of this case, was rejected on the ground that same is not in the range of (+) 5% to (-) 10%, he enquired the matter from the respondents. Petitioner was informed that HPPWD has adopted the CPWD Work Manual, 2019, wherein condition No. 12 provides that in case tendered amount is beyond the limit of (+) 5% to (-) 10%, same is liable to be rejected as was done in the case of the petitioner in the first tender vide order dated 1.7.2021 (Annexure P-3). Since respondent No.5, who was found to be the lowest bidder in the second tendering process had made bid to the value of Rs. 3,74,39,933.60/- i.e. 36% lower than the tendered amount of Rs. 5,87,17,104/-, petitioner raised objections, but he was informed that on 7.10.2021, Government of Himachal Pradesh has amended the previous notification dated 22.7.2020, regarding the adoption of CPWD (Annexure R-1), wherein it came to be provided that tenders will be invited on the basis of estimates approved on the market rates and shall be awarded to the lowest bidder without any negotiations if the tendered amount is within the limit of (+) 5% to (-) 10% of the amount put to the tender. Since respondents accepted the tender of respondent No.5 for the tune of Rs, 3,74,39,933.60/-, which is admittedly 36.23% below the amount put to the tender, the petitioner, who is L-2 has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs:

“ i) That the approval of award of the above work vide Annexure P-9 and P-10 in favour of the respondent No.5 may kindly be quashed and set aside and further respondents No. 1 to 4 may kindly be directed to declare the financial bid of the petitioner as responsive and complete the tender process and award the above mentioned work to the petitioner..

ii) That the impugned order undated (Annexure –P-3) may kindly be quashed and set aside and the respondents may kindly be directed to issue the allotment letter in favour of the petitioner, for which, he has been declared as L-1.”

4. Respondents/State have filed reply to the petition, but respondent No.5 despite service has failed to put in appearance and as such, this Court has no option, but to decide the case at hand in the a