Mukesh Tomar vs State Of Uttarakhand & Others
2023 Latest Caselaw 2353 UK

    IN THE HIGH COURT OF UTTARAKHAND
                AT NAINITAL


         THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                 AND
              THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL



             WRIT PETITION (M/B) NO. 196 OF 2023


                             21ST AUGUST, 2023



Mukesh Tomar                                  ......          Petitioner


Versus


State of Uttarakhand & others                 ......         Respondents

Counsel for the petitioner : Mr. Piyush Garg, learned counsel

Counsel for the respondents : Mr. C.S. Rawat, learned Chief Standing Counsel with Mr. Gajendra Tripathi, learned Standing Counsel for the State /

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)

Service on respondent No. 4 is complete.

However, none has appeared on behalf of respondent

No. 4 to defend these proceedings. Counter-affidavit

has been filed on behalf of respondent Nos. 2 and 3. We

have, therefore, proceeded to hear this petition, and we

proceed to dispose of the same.

2) The petitioner has preferred this petition to

assail its technical disqualification by the respondent

authorities in respect of the tender submitted by the

petitioner for the work, namely, construction of

boundary wall of Science City at Jhajhra, Dehradun, for

which the respondent authorities invited bids vide the

NIT dated 22.06.2023. The petitioner is also aggrieved

by the award of the work to respondent No. 4, on the

ground that the said respondent-contractor was actually

technically disqualified, and was wrongly held to be

technically qualified by the respondents.

3) The reason for petitioner's disqualification

communicated by the respondents are found in two

communications. The first communication / Office Order

dated 21.07.2023 was issued by the respondent in

respect of all the bidders, wherein respondent No. 4 was

declared to be qualified, and the other bidders, including

the petitioner, were declared to be disqualified. So far

as the petitioner is concerned, reason for disqualification

stated in the communication dated 21.07.2023 was the

following :

"Jh eqds'k rksej] fuoklh yka?kk] lgliqj] nsgjknwu (FIN‐4 ,ao going work dh lwpuk u fn;s tkus ls dkj.k )"

4)                  The         petitioner             responded                to         the

communication on 21.07.2023 itself.                                   Thereafter, the

respondent                issued         another         communication                 dated

22.07.2023, communicating further grounds for the

petitioner's disqualification. This communication reads

as follows :

"lsok esa Jh eqds'k rksej fuoklh yka?kk lgliqj nsgjknwuA fo"k; %& lkbal flVh >k>jk] nsgjknwu dh pkgjnhokjh dk fuek.kZ dk;Z (Tender Id: 2023_pwd_60333_1) dh fufonk ds lEcU/k esaA

lanHkZ %& vkidk i=kad & 'kwU;] fnukad 21-07-2023 mijksDr fo"k;d vius lanfHkZr i= dk voyksdu djsa ftlds }kjk vkifRr ntZ djrs gq,s iqu% rduhdh foM dk eqY;kadu djrs gq,s Lo;a dks lQy ?kksf"kr djus gsrq fuosnu fd;k x;k gSA ftlds dze esa voxr djkuk gS fd fo"k;d dk;Z dh rduhdh foM fnukad 12-07-2023 dks fufonk lfefr ds lEeq[k v/kksgLrk{kjh ds dk;kZy; es [kksyh x;h FkhA ftlesa vkidh foM dk rduhdh ewY;kadu djus ds mijkUr FIN-4 ,ao Ongoing work dh lwpuk u fn;s tkus ds dkj.k vkidks izkbl foM [kksyus gsrq ik= ugh ik;k x;k FkkA vkids }kjk fd;s x;s vuqjks/k ij iqu vkidh fCkM dk rduhdh ewY;kadu djus ij ik;k x;k fd vkids }kjk Litigation history 100 #i;s ds Notorized Stamp Paper ij izLrqr ugh fd;k x;k gS ,ao FIN-1 esa Current Asset Rs.27.23 Lakh -

Current liabilities Rs.27.45 = -0.22 Lakh _.kkRed vkrh gSA

vr% iqu% vkidh fCkM dk rduhdh ewY;kadu ds mijkUr Hkh vkidks izkbZl fCkM [kksyus gsrq ik= ugh ik;k x;kA"

5) From the above, it would be seen that the

petitioner's initial disqualification was on the ground that

the petitioner had not provided information in Form FIN-

4 regarding ongoing works. The said Form reads as

under :

"Form FIN-4 : Current Contract Commitments / Works in Progress

Bidder (or each JV partner) should provide information indicated below

in order to calculate the aggregated financial resources requirement,

which requirement equals the sum of : (i) the Bidder's (oreach JV

partner's) current commitments on all contracts that have been

awarded, or for which a letter of intent or acceptance has been received,

or for contracts approaching completion, but for which an unqualified,

full completion certificate has syet to be issued and (ii) financial

resources requirement for subject contract as determined by the

Employer. Bidder must also disclose any other financial obligations that

could materially affect the implementation of subject contract if such

contract were to be awarded to the Bidder.

Financial Resources Requirement

No. Name Employer's Contract Remaining Outstanding Monthly Financial Contract Contact Completion Contract Contract Resources (Address, T Date Period in Value (B) Requirement (B / A) Fax) months (A)

A. Cumulative Financial Resources Requirement for Current Contract INR..........

Commitments B. Financial Resources Requirement for Subject Contract INR..........Lakh (Employer to specify) [Insert amount equal to 10% of the estimated cost]

Financial Resources Requirement (Sum of A and B) INR.........

1. Remaining contract period to be calculated from 28 days prior to bid submission deadline.

2. Remaining Outstanding Contract Value to be calculated from 28 days prior to the bid submission deadline (INR equivalent based on the foreign exchange rate as of the same date).

3. Each JV partner must meet 100% of 1 month of its own current works commitment.

4. All partners combined must meet 100% of this requirement. Each Partner and One Partner must meet specified percentage values in Section 3, sub-clause 2.3.3.

Attached :

An undertaking certifying that information on all current contract commitments has been provided and the information provided is correct.

6) The case of the petitioner is, that the

petitioner had filled in the said Form as "Nil", since the

petitioner was not performing any other contract and,

therefore, had no financial commitment. All the

resources of the petitioner were available to carry out

the contract in question, if awarded to the petitioner.

The respondents state that the petitioner had not filled

in the last column, against entry in row "B" - financial

resources requirement for subject contract (employer to

specify). The petitioner had left the last column blank,

where the petitioner was expected to "(insert amount

equal to 10% of the estimated cost)".

7) To this, the submission of the petitioner is that

the petitioner had provided the statement of financial

resources in Form FIN-3, and the petitioner had also

provided the net worth certificate, which reads as

follows:

NET WORTH CERTIFICATE

NAME OF APPLICANT MUKESH TOMAR - VILLAGE MATOGI, LANGHA, VIKAS NAGAR, DEHRADUN

Financial Information NET WORTH for Previous 5 Years (INR)

2021-22 2020-21 2019-20 2018-19 2017-18 2016-17

Information from Balance Sheet

Total Assets 60,74,188 41,50,591 36,01,284 64,92,982 26,56,684 14,95,518

Total Liabilities 27,44,770 14,63,927 14,04,698 43,92,675 6,38,226 32,568

Networth 33,29,418 26,86,664 21,96,586 21,00,307 20,18,458 14,62,950

8) The petitioner had also provided the financial

data -which has been filed by the respondent, along with

their counter-affidavit, as duly certified by petitioner's

Chartered Accountant, which reads as follows :

NAME OF APPLICANT                                            MUKESH TOMAR - VILLAGE MATOGI,
                                                             LANGHA, VIKAS NAGAR, DEHRADUN

Name of Banker :          PUNJAB NATIONAL BANK

Address of Banker : CHAKRATA ROAD, MAIN MARKET, VIKAS NAGAR, DEHRADUN

Telephone : 8800519981 Contact name and title : BARU SINGH RAWAT (Senior Manager)

Facsimile : N.A. Email : [email protected]

Financial Previous five years information

2021-22 2020-21 2019-20 2018-19 2017-18 2016-17

Rs. In lacs Rs. In lacs Rs. In lacs Rs. In lacs Rs. In lacs Rs. In lacs

Information fromBalance Sheet

Total Assets 60.74 41.51 36.01 64.93 26.57 14.96

Total Liabilities 27.45 14.64 14.05 43.93 6.38 0.33

Networth 33.29 26.87 21.97 21.00 20.18 14.63

Current Assets 27.23 21.09 25.16 48.44 10.06 11.33

Current Liabilities 27.45 14.64 14.05 43.93 6.38 0.33

Profits Before Tax 9.68 9.94 5.98 9.32 11.36 6.78

Profits after Taxes 8.36 8.90 5.98 8.37 10.20 6.78

(emphasis supplied)

9) Mr. Garg submits that the respondents appear

to have adopted a hyper-technical approach, merely

because the petitioner had not inserted the amount

equal to 10% of the estimated cost in the last column

against row "B" - financial resources requirement for

subject contract (employer to specify)", even though

that information was provided by the petitioner in Form

FIN-3, as well as by way of the petitioner's net worth

certificate, duly certified by the petitioner's Chartered

Accountant. Since the petitioner was not performing any

other contract, it was clear that all its resources, as

stipulated in column FIN-3, and which also emerged

from the net worth certificate, were available for

execution of the contract, if awarded to the petitioner.

10) Mr. Garg further submits that the respondents

shifted their stand when the petitioner represented on

21.07.2023, by stating that the petitioner had not

provided the litigation history on notarized stamp paper

of Rs.100/-, and also that the current asset minus

current liability of the petitioner was to the tune of

Rs. - 0.22 lakhs.

11) In this regard, the submission of Mr. Garg is

that there is no clause in the tender, which requires the

bidders to provide the litigation history on notarized

stamp paper of Rs.100/-. Mr. Garg has drawn our

attention to clause 10 of the 'Invitation for Bids', which

reads as follows :

"10. The bids must be accompanied by the following Documents in Original-

(i) A bid security in The name of Executive Engineer, Construction Division, PWD, Dehradun, in accordance with ITB 18.2 for this contract, (ii) Rs.100/- Stamp Paper with Rs.1/- Revenue Ticket affixed and signed on it, for the validity of rates of the Bidder for the validity period of 60 Days, (iii) Demand Draft in the name of Executive Engineer, Construction Division, PWD, Dehradun of the amount of bidding document, payable at Dehradun (iv) Copy of Contractor Registration as per Tender Notice, (v) Notarized Affidavit (on stamp paper of Rs.100/-) in the prescribed format/language given in the bidding document, regarding correctness of information furnished with the bid document, (vi) Bidder must submit an affidavit regarding site visit and examine the site of work on Rs. 10/- Stamp paper duly notarized. Visit of site of work shall be mandatory as per clause 7.2, Section-I (instructions to Bidders). These documents must be delivered to the office of Superintending Engineer, 9th Circle, PWD, Dehradun on or before 1500 hours on 12/07/2023. Bids will be opened at 1530 hours on the same day in the presence of bidders or authorized representatives."

12) The said clause nowhere specifies that the

litigation history is to be furnished on a stamp paper of

Rs.100/-. In contra-distinction, clauses (i), (v) and (vi)

of the aforesaid clause clearly state that the information

is required to be provided on stamp paper of Rs.100/-.

The petitioner further submits that upon receiving the

communication dated 22.07.2023, the petitioner

enquired from the respondent - as to where the

requirement of providing the litigation history on stamp

paper of Rs.100/- has been stipulated in the tender, to

which the petitioner received no response. The stand

taken by the respondents in their counter-affidavit is

only that, since the petitioner is a contractor, he should

be aware of the said requirement. Thus, the

respondents admitted that in the tender document itself,

there was no such requirement.

13) Mr. Garg further submits that the respondents

have completely misdirected themselves in taking into

account the current assets minus current liabilities

figure. He avers that the form in which the information

was sought itself provided that the total assets; total

liabilities, and; the net asset, is required to be provided,

which in the petitioner's case has constantly been rising

from 2016-2017 onwards, as duly certified by the

petitioner's Chartered Accountant. We have already

extracted hereinabove the financial data provided by the

petitioner as duly certified by the petitioner's Chartered

Accountant, which has been filed by the respondents

themselves along with their counter-affidavit. The row

containing the net worth of the petitioner, year after

year, has been highlighted by us.

14) Mr. Garg submits that so far as respondent

No. 4 is concerned, the said respondent has been

wrongly held to be technically qualified, inasmuch as,

the said respondent had not provided the bid security in

terms of Clause 10(i), which provides that bid security in

the name of the Executive Engineer, Construction

Division, P.W.D., Dehradun, in accordance with ITB 18.2

had to be provided for the contract.

15) Clause 18, insofar as it is relevant, reads as

follows :

"18. Bid Security

18.1 Unless otherwise specified in the BDS, the Bidder shall furnish as part of its bid, a bid security as specified in the BDS, in original form. The amount and currency of the Bid Security shall be as specified in the BDS.

18.2 The bid security shall be, at the Bidder's option, in any of the following forms:

      (a)        an unconditional bank guarantee;

      (b)        a Fixed Deposit Receipt; or

      (c)        an irrevocable letter of credit; or

      (d)        a cashier's or certified check;





                  all from a reputable bank from India.      In the

case of a bank guarantee, the bid security shall be submitted either using the Bid Security Form included in Section 4 (Bidding Forms) or in another substantially similar format approved by the Employer prior to bid submission. In either case, the form must include the complete name of the Bidder. The bid security shall be valid for twenty-eight days (28) beyond the original validity period of bid, or beyond any period of extension if requested under ITB 17.2

18.3 Any bid not accompanied by a substantially complaint bid security in accordance with ITB 18.2, shall be rejected by the Employer as nonresponsive."

16) The above would show that the bidders could

provide the fixed deposit receipt towards bid security

from a reputable bank from India. However, the bid

security had to be in the name of the Executive

Engineer, Construction Division, P.W.D., Dehradun.

17) Mr. Garg points out that the fixed deposit

receipt provided by respondent No. 4 was a fixed deposit

issued by Bank of India, Sevla Kalan Branch dated

12.07.2023, in the name of respondent No. 4, i.e., M/s

Dev Construction, for an amount of Rs.3,87,000/-. The

same was neither in the name of the Executive Engineer,

Construction Division, P.W.D., Dehradun, nor was any

lien marked in favour of the Executive Engineer,

Construction Division, P.W.D., Dehradun, in the said

fixed deposit.

18) Mr. Garg points out that the respondents had

themselves stated in their communication dated

22.07.2023, that the bid evaluation had taken place on

12.07.2023. In their counter-affidavit, the respondent

authorities have now stated that they had sent a

communication to the Bank of India for verification of

the said fixed deposit and the pledge created in favour of

the Executive Engineer, Construction Division, P.W.D.,

Dehradun, on 14.07.2023, i.e., after the examination of

the technical bids of the bidders, wherein respondent No.

4's bid was held to be responsive. Mr. Garg submits that

even the certificate issued by the bank on 14.07.2023,

filed by the respondents to their counter-affidavit as

Annexure-4, does not certify that the fixed deposit

submitted by respondent No. 4 was pledged in favour of

the Executive Engineer, Construction Division, P.W.D.,

Dehradun.

19) He submits that, in any event, what is relevant

is - as to how, the Technical Evaluation Committee could

have assumed that the said fixed deposit was pledged in

favour of the Executive Engineer, Construction Division,

P.W.D., Dehradun, when it examined the documents

submitted by respondent No. 4 on 12.07.2023. The

communication issued by the bank on 14.07.2023 to the

Executive Engineer, Construction Division, P.W.D.,

Dehradun, reads as follows :

"To,

Executive Engineer Construction Division P.W.D. Dehradun

"Sub: Verification of F.D.R.

With refer to captioned subject your letter no : 201/FDR/(02 C) dt 14.07.2023 regarding the FDR No- 705745110001756 amount of Rs.3,87000/- (Three lac Eighty seven thousand only) dt 11-07-2023 & PLEDGE in favour of Executive Engineer Construction Division P.W.D., Dehradun A/c-Dev construction.

We confirm that said FDR was issued by our system dt on 11-07-2023 on request of M/s Dev Construction.

This certificate is issued to your for your record.

Sd/-

Sr. Branch Manager"

20) Another submission raised by the petitioner is

that the respondent No. 4, even otherwise, does not

have the requisite past experience to implement the

contract in question.

21) Clause 2.4 of the tender document deals with

the aspect of experience. Clause 2.4.1 deals with

'general construction experience', in respect whereof the

form EXP-1 had to be filled. In respect of the specific

construction experience under Clause 2.4.2, information

had to be provided with regard to - "(a) Contracts of

Similar Size and Nature". Mr. Garg has drawn our

attention to the communication issued by the

respondents on 17.05.2023, after the pre-bid meeting

held with the bidders. In the pre-bid meeting, the

respondents had sought to clarify - as to what is the

meaning of similar nature of work experience, and as to

what type of works shall be considered, by stating "work

related to building work or boundary wall related civil

work shall be considered for similar nature of works".

The experience certificate had to be furnished and duly

signed by the competent authority as per prescribed

format. Form EXP-2 contains the following foot-note in

this regard :

"Attach copies of certificates of accreditation for the project listed above. These certificates should be furnished & duly signed by competent authority as per prescribed format (vide G.O. No. 2153/III(2)/19-75 (lkekU;)2000, dated 03-06-2019) attached with this section as Annexure-1. If not furnished in prescribed format for required amount the bidder shall be non- responsive."

(emphasis supplied)

22) The certificate of completion of work itself had

to be in the form Annexure-1, which too had to be

issued by the Executive Engineer of the concerned

Division. Mr. Garg points out that respondent No. 4

provided the experience certificate issued by DC(ENGR)

8th Battalion ITBP dated 20.06.2023, which related to

the work "Construction / Up-gradation of Helipad at

Geldung Post of 8th Battalion ITBP". Mr. Garg submits

that the said work did not fall within the meaning of

"work of similar nature", as clarified by the respondents

themselves in the pre-bid meeting. He further points

out that the respondent No. 4, on its own, issued a self-

certificate in relation to the very same work by stating,

under the heading : "Description of the similarity in

accordance with criteria 2.4.2(a) of Section 3",

"Excavation, Pitching PCC 10, PCC 25 WALL RR, HILL

CUTTING".

23) Self-certified statement of respondent No. 4

was meaningless, as the said certificate had to be issued

by the competent authority. Mr. Garg submits that the

respondents have ignored the said serious deficiency in

the bid of respondent No. 4, while holding respondent

No. 4 to be technically qualified.

24) In response, Mr. Rawat has drawn the

attention of the Court to the averment contained in para

7 of the counter-affidavit, wherein it is stated that the

process of bid evaluation was started on opening of the

technical bid on 12.07.2023. The affidavit states that

after technical bid examination by the Technical Tender

Committee on 21.07.2023, only respondent No. 4 was

found to be eligible for opening of the financial bid. Mr.

Rawat submits that, therefore, the technical evaluation

of the bid was completed on 21.07.2023, and not on

12.07.2023. It was merely started on 12.07.2023. Mr.

Rawat submits that, by that date, the bid security

provided by respondent No. 4 had been got verified from

the Bank of India, which had issued the certificate dated

14.07.2023.

25) In relation to the past experience of

respondent No. 4, Mr. Rawat has drawn attention of the

Court to the stand taken by the respondents in para 16

of their counter-affidavit. Para 16 of the said affidavit,

insofar as it is relevant, reads as follows :

"Accordingly, as per the aforesaid clause the work carried out by the respondent no. 4 in respect to construction work of helipad was completed satisfactorily by respondent 4, thus for the aforesaid reason the respondent no. 4 was found qualified for

Technical bid. In this connection copy of the work certificate is being annexed herewith and marked as Annexure CA-6 to this affidavit."

26) Annexure C.A.-6 is the self-certificate issued

by respondent No. 4 M/s Dev Construction, as taken

note of hereinabove. We reproduce the said certificate

hereunder :

FORM EXP -2(a) : Specific Construction Experience

Contract of similar size and nature

Contract No. ITBP/SHQ(DDN)/Const/E Contract Construction / Up -gradation of Helipad ngr/2019-19 dated Identification 24-05-2019 at Geldung Post of 8th Bn ITBP.

Award date :

29-07-2021                                                        28-07-2022


Role in contract           Contractor         Management
                                              Contractor


Total contract amount                                         Rs.26300000/-

if partner in JV or
subcontractor, specify               Percent of total :                 Amount : N/A
participation of total                    N/A
contract amount

Employer's name                                       Assistant Commandant


Address                                       8th BN ITBP GAUCHAR UTTARAKHAND


Telephone


Email

Description of the similarity in accordance with criteria 2.4.2(a) of section 3

EXCAVATION, PITCHING PCC10, PCC25, WALL RR, HILL CUTTING

27) In response to our query - as to how the

Technical Evaluation Committee could have looked into

the self-certificate issued by respondent No. 4, Mr.

Rawat has no answer.

28) We have considered the rival submissions of

the parties in the light of the record.

29) The stand taken by the respondents shows

that they have been shifting their position from time to

time. The initial reason given by them for the

petitioner's disqualification was that the petitioner had

not provided information regarding the ongoing work in

Form FIN-4. The petitioner responded to the said

disqualification by informing the respondents that the

petitioner had filled the said form as 'Nil', on account of

the fact that the petitioner was not performing any

works at the relevant point of time. Upon receiving the

said communication, the respondents shifted their stand,

and claimed that the petitioner had not provided the

litigation history on rupees hundred notarized stamp

paper, and that the current assets of the petitioner were

in the negative, i.e., -0.22 lakhs. This was not the stand

taken by the respondents in the initial communication

declaring the petitioner to be disqualified. When the

petitioner enquired, as to where is the requirement for

the petitioner to provide the litigation history on rupees

hundred stamp paper, the respondents did not answer

the said query. The stand taken by them in their

counter-affidavit is that the petitioner - being a

contractor, should be aware of this requirement. Once

such a requirement has not been stipulated in the tender

document, there was no question of the petitioner being

disqualified for not submitting the litigation history on

stamp paper of rupees hundred. This ground of

rejection taken by the respondents is, therefore,

completely erroneous. So far as the ground taken with

regard to the current assets being in the negative is

concerned, the petitioner has rightly pointed out that

there is no requirement for a bidder to have positive

current net assets. What is stipulated - as a

requirement, is the positive net worth, and the petitioner

had provided information with regard to the petitioner's

net worth which can be seen to be rising, year after

year, from 2016-17 to 2021-22. Therefore, even this

ground taken by the respondents is wholly

unsubstantiated and of no avail.

30) During the course of his arguments, Mr. Rawat

has submitted that the petitioner had not filled in row 'B'

of Form FIN-4 in rupee, to indicate the availability of

financial resources for the subject contract. It was for

the petitioner to show that it had the financial resources

of 10% of the estimated cost available. On this aspect,

the submission of Mr. Garg is that, since the petitioner

had declared that the petitioner was not carrying on any

other contract, and the petitioner had also provided its

net worth, it was clear that the entire net worth of the

petitioner was available as the financial resources for the

subject contact.

31) The purpose of evaluation of a bid is to

examine the bid in a meaningful and intelligent way. It

is fair and reasonable to assume that those entrusted

with the task of evaluating bids received in response to a

public tender, are persons with reasonable intelligence

and experience. It is fair to assume, that they are aware

of the fact that the purpose of the entire bidding

exercise, is to select the competent and qualified bidder

who has offered the best financial quotation, for

executing the work under the tender. It is not merely a

superficial examination of the bids, without any

application of mind, that the bid evaluation authority is

expected to undertake. The authority cannot, on its

own, imagine, guess, or estimate the information that

the bidder is required to provide. The authority is not

expected to undertake a long drawn exercise to

calculate, or deduce the information, that the bidder is

obliged to provide. At the same time, the authority

cannot turn a blind eye to the information provided by

the bidder along with its bid, and ignore the information

called for, and provided by the bidder. The endeavour of

the authority examining the bids should be to increase

competition, rather than to curtail the same, by

disqualifying bidders on hypertechnical grounds. The bid

evaluation authority is also expected to act fairly, and

without any biases or prejudices for, or against any of

the bidders. The conduct of such an authority cannot be

arbitrary, or discriminatory.

32) In the present case, the respondents have

done just that. Only respondent No. 4 was held to be

technically qualified, while all others were disqualified,

removing all competition. A little careful scrutiny of the

petitioner's technical bid would have disclosed to the

respondents, that the petitioner had the financial

resources to carry out the contract in question. The

petitioner had provided its duly certified statement of net

worth. It had also stated that it was not carrying on any

other contract. Thus, its resources - equivalent to its

net worth, could be considered as available for execution

of the contract.

33) We may now move on to examine the case of

the petitioner that respondent No. 4 was not technically

qualified, and the respondents have erred in declaring

the bid of respondent No. 4 to be technically qualified.

The technical bids were opened on 12.07.2023, and the

petitioner and other bidders were held to be disqualified

on the same day. Respondent No. 4 was, however,

declared to be technically qualified. Only thereafter, the

respondents proceeded to address a communication to

the bank of respondent No. 4. Therefore, we have to

see whether the declaration of respondent No. 4 as

technically qualified on 12.07.2023 was justified, or not.

Admittedly, respondent No. 4 had provided - towards

bid security, one fixed deposit receipt in its own name.

Admittedly, no lien was marked on the said fixed deposit

in favour of the Executive Engineer concerned. How

then, the respondents could have accepted the said bid

security, which was in the name of respondent No. 4,

has not been explained. Even the communication relied

upon by the respondents - received from the Branch

Manager of the bank of respondent No. 4 of 14.07.2023,

is neither here, nor there. The said communication

merely verifies the creation of the fixed deposit by

respondent No. 4 of the amount of Rs.3,87,000/- on

11.07.2023. The said certificate does not confirm that

any pledge was created in favour of the Executive

Engineer, Construction Division, P.W.D. A careful

perusal of the said communication shows that the first

paragraph merely reproduces the letter sent by the

respondents to the bank. The confirmation is only in

respect of the issuance of the fixed deposit on

11.07.2023 on the request of M/s Dev Construction. It

nowhere states that lien has been marked on the said

fixed deposit in favour of the Executive Engineer, as

aforesaid. Moreover, the said communication was issued

on 14.07.2023, whereas the examination of the bids /

documents by the Technical Evaluation Committee, and

the declaration of respondent No. 4 as technically

qualified, had already been done on 12.07.2023. If the

respondents would not have favoured respondent No. 4,

they would have rejected its bid, like they rejected all

other bids, on 12.07.2023 itself. Clearly, the said fixed

deposit receipt provided by respondent No. 4, in his own

name, could not have served as a valid bid security for

the tender in question. On that ground, the bid of

respondent No. 4 was liable to be rejected as technically

disqualified on 12.07.2023 itself. The submission of Mr.

Rawat that the process of bid evaluation was started on

12.07.2023, and it was concluded on 21.07.2023 is

neither here, nor there. This is for the reason that

respondent No. 4 had already been declared to be

technically qualified on 12.07.2023.

34) We also find merit in the submission of Mr.

Garg that respondent No. 4 did not have the past

experience of doing similar works, as clarified by the

respondent themselves in the pre-bid meeting. From

the counter-affidavit filed by the respondents, it is clear

that they have proceeded to consider the self

certification provided by respondent No. 4 with regard to

its past experience. This action of the respondents is

also clearly contrary to the terms of the tender, which

required that the certificate of past experience had to be

issued by the competent authority. On this ground as

well the technical bid of respondent No. 4 was liable to

be rejected.

35) From the above discussion, it emerges that

the respondents have not been fair and transparent in

the matter of evaluation of the bids received by them in

response to the tender in question. It appears to us,

that the respondents acted in a premeditated mind to

favour respondent No. 4, despite the fact that the said

respondent was technically disqualified for various

reasons, as already taken note of hereinbefore.

However, the respondent authorities overlooked the

technical disqualification of respondent No. 4, and

proceeded to award the contract to it. When it came to

examination of the petitioner's technical bid, the

respondents adopted a much stricter standard, than the

standard adopted while examining the bid of respondent

No. 4. The conduct of the respondent authorities is

clearly discriminatory.

36) In matters of award of public contracts, it is

well settled that the State is obliged to act in a

transparent and fair manner. The State cannot be seen

to be acting with a bias in favour of, or against, any

party. The endeavour of the State should always be to

pick up the most competent and financially suitable

bidder to do the public work in question. In the present

case, the conduct of the respondents has led to failure of

justice, and their conduct is not in public interest, which

lies in ensuring that a competent and financially suitable

bidder is selected to execute the public works.

37) For the aforesaid reasons, we allow this writ

petition and quash the award of the tender to

respondent No. 4. The respondents may proceed to take

further decision with regard to the award of the contract

to the petitioner, or to cancel the tender process, and

reinitiate the same. The writ petition is allowed with

costs of Rs.50,000/- to be paid by the respondent

authorities to the petitioner.

________________ VIPIN SANGHI, C.J.

________________ RAKESH THAPLIYAL, J.

Dt: 21st AUGUST, 2023 Negi