Unknown vs Uttarakhand Forest Development ...
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        IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL

            HON'BLE CHIEF JUSTICE SRI VIPIN SANGHI
            HON'BLE JUSTICE SRI RAKESH THAPLIYAL.
                    Judgment Reserved on : 21.09.2023
                    Judgment Delivered on : 26.10.2023
            Writ Petition (M/B) No. 200 of 2023
Nandaur Haldwani Ujjwal Dharam Kanta Owners Society

                                                   ............Petitioner
                           Versus
Uttarakhand Forest Development Corporation & Ors.

                                            .......Respondents.

With Writ Petition (M/B) No. 235 of 2023 Aanchal Dharam Kanta Owners Society ............Petitioner Versus Uttarakhand Forest Development Corporation & Anr.

.......Respondents.

And Writ Petition (M/B) No. 252 of 2023 Haldwani Lalkuan Dharam Kanta Owners Welfare Society ............Petitioner Versus Uttarakhand Forest Development Corporation & Ors.

.......Respondents.

Counsel for the Petitioner: Mr. Shobhit Saharia and Mr. Birendra Singh Adhikari.

Counsel for the respondent/corporation: Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Virender Kaparuwan.

Counsel for the private respondent: Mr. Bhuwan Bhatt.

Upon hearing the learned Counsel, the Court made the following judgment: (per Sri Rakesh Thapliyal, J.)

1. All these three writ petitions raise almost identical questions and issues. Therefore, all these petitions are being decided by a common judgment.

2. Before discussing the issues, as raised in all these petitions, it is relevant to give reference of the reliefs as sought in all these petitions. Hence, the reliefs as sought in these petitions are being reproduced as under:-

(A) WPMB No. 200 of 2023.

(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 03.08.2023 (Annexure No. 3) declaring only one bid of the private respondent as technically qualified and taking a decision to further the financial bid of the single, technical qualified bidder in order to grant him the contract.

(ii) Issue a writ order or direction in the nature of mandamus directing the respondent no. 1 and 2 to undertake re-tendering process calling for fresh bids strictly in consonance and in accordance with Uttarakhand Procurement Rules 2017 (as amended). (B) WPMB No. 235 of 2023

(i) Issue a writ order or direction in the nature of certiorari quashing the NIT dated 28.03.2023 (ANNEXURE NO. 1), more pertinently of not following e-bidding process/e-procurement, its condition with respect to EMD of 25L, Performance Guarantee of 2 crores, annual turnover of 10 Cr in each of preceding 3 years, condition of bidder to have "factory" of its own, not making single bid disqualified for financial assessment etc.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 1 and 2 to undertake re-tendering process calling for fresh bids strictly in consonance and in accordance with Uttarakhand Procurement Rules 2017 (as amended). (C) WPMB No. 252 of 2023

(i) A writ, order or direction in the nature of certiorari quashing the impugned Tender Notice dated 28.08.2023 (Annexure-2) for non-following the mandatory conditions of Uttarakhand Procurement Rules 2017 and also for adding condition no. 8, 9 and 30 in part I of this impugned tender document.

(ii) A writ order or direction in the nature of Mandamus directing the respondents to issue fresh tender process

strictly in accordance with Uttarakhand Procurement Rules 2017.

3. In all these petitions the tender was floated by Uttarakhand Forest Development Corporation for the purposes of establishing/running, maintenance of computerized weighbridge, CCTV, internet, RFID (radio frequency identification device) in Gola River as well as in Kosi River. Writ Petition (M/B) No. 235 of 2023 and Writ Petition (M/B) No. 252 of 2023 pertains to Gola River, whereas Writ Petition (M/B) No. 200 of 2023 pertains to Kosi River.

4. In Writ Petition (M/B) No. 235 of 2023 and Writ Petition (M/B) No. 252 of 2023, which relates to Gola River, e-tender notice was issued on 28.08.2023, whereas in Writ Petition (M/B) No. 200 of 2023, which pertains to Kosi River the tender was floated on 12.07.2023. Pursuant to the aforesaid tender notices floated by the respondents- Corporation, the tenders were invited through two bid system.

5. It is the contention of the petitioner that the respondents-Corporation carried out the tender process in an arbitrary manner and in the teeth of the Uttarakhand Procurement Rules 2017 (hereinafter referred to as the Uttarakhand Rules 2017 for brevity) by incorporating the tailor-made conditions which suit the successful bidder.

6. At this juncture, the relevant condition as stipulated in the tender document are being reproduced herein:-

"19. fufonk esa izfrHkkx cuk;s j[kus gsrq de ld de izFke rhu (Top Three) lQy izfrHkkfx;ksa dks gh foRrh; fufonk gsrq p;fur fd;k tk;sxk ,oa rnuqlkj gh foRrh; fufonk [kksyh tk;sxhAß

7. This clause 19 is in the tender, floated on 12.07.2023 which pertains to the Kosi River. It is contended by the learned counsel for the petitioner that in respect of the tender which was floated for Gola River on 28.08.2023, this condition (clause 19) which requires that at least three responsive technical bids shall be required for further evaluating financial bids was not incorporated. It is the submission of the learned counsel for the petitioner, that in respect of Gola River, deliberately and with malafide intention this condition has not been included in the impugned NIT.

8. In Writ Petition (M/B) No. 235 of 2023, it is the contention of the learned counsel for the petitioner that the respondents-corporation proceeded with the tender, and the financial bid of the sole bidder, namely, M/s Leotronics Scales Private Limited, Amritsar was opened, and the justification given was that in pursuance of a subsequent amendment, which was never published, the financial bid of the sole bidder was opened.

9. Another allegation, which is almost identical in all these petitions, is that the tender was floated for awarding work for three years, i.e., 2023-24, 2024-25 and 2025-26. It is the contention of the learned counsel for the petitioner that against the total tender value, Rs. 10 crores annual turnover in preceding three years is made as a mandatory condition. Condition no. 8 of tender notice floated for Gola River by tender notice dated 28.08.2023, and for Kosi River for which tender was floated on 12.07.2023 is reproduced as under:-

"rduhdh fufonkvksa ¼dEI;wVjhd`r /keZdkaVk fuekZ.k LFkkiuk ,oa lapkyu½ gsrq fufonknkrk dk foxr 03 o"kksZa esa :0 10-00 djksM+ dk lkykuk VuZvksoj gksuk vko';d gSAß

The translation of this Clause reads :

"For technical bid about establishment, running and maintenance of computerized weighing bridges, bidder must have the annual turnover of Rs. 10 crores in preceding 3 years."

10. In respect of tender floated on 28.08.2023, the total quantity of the minerals proposed to be extracted during the period of three years is 54.25 lakhs cubic meter, which in terms of Clause 12 of part 2 of tender conditions comes to 54.25 lakhs x 22 = 11,93,50,000/- quintals. Clause 12 of part 2 is being reproduced hereunder:-

"mi[kfut pqxku gsrq ykSVksa dh Lohd`fr ou ,oa i;kZoj.k eaéky; Hkkjr ljdkj }kjk fuf"pr ek=k gsrq iznku dh tkrh gSA ljdkj }kjk ,d ?kuehVj mi[kfut 22 dqUry ds cjkcj ekuk tkrk gSA [kuu ls lEcfU/kr lHkh izdkj dk MkVk fjdkMZ gsrq mRrjk[k.M ou fodkl fuxe }kjk fodflr [kuu eSustesUV flLVe ¼ds0,e0,l0½ }kjk ladfyr fd;k tkrk gSAß

11. Now, as per Clause 21 part I of the tender conditions, the rates were provided @ Rs. 0.075 per quintal including GST. A calculation for determining the total cost of tender valuation is mentioned in para 7 of Writ Petition (M/B) no.

252 of 2023, and this calculation is based upon Clause 12 of Part II of the tender conditions as well as Clause 21 of Part I of the tender conditions, and as per the calculation, as given in para 7, which is strictly as per the conditions mentioned in Part I and Part II, the total cost of tender comes to Rs. 2,68,53,750/-, i.e., about 2.68 crores approximately. Against this tender value, as per clause 8 of part I of tender conditions, the bidder should have a turnover of at least 10 crores in last three years.

12. It is the contention of the learned counsel for the petitioner, that the turnover requirement in condition as mentioned in Clause 8(1) of part I of the tender has no rationale nexus with the value of the work under the

contract, and such condition has been stipulated in the tender only with the intention to debar the small bidder not having such turnover, and to favour only the big bidders. It is also against the mandate of the spirit of the Uttarakhand Rules 2017.

13. Apart from this, the petitioner also questions condition no. 9 of Part I, wherein it is provided that the bidder should have own factory for manufacture of weighbridges, and, further questions the condition as stipulated in Clause 30 part 1, wherein it is provided that bidder should deposit Rs. 25 lakh as earnest money and the performance guarantee of Rs. 2 crores. In this regard, learned counsel for the petitioner relied upon Rule 36 of Uttarakhand Rules 2017, which provides that the work with estimated cost of more than Rs. 25 lakh, earnest money will be 2% of the estimated cost.

By giving reference to Rule 36 of the Uttarakhand Rules 2017, it is contended by the learned counsel that in respect of Gola River, the estimated cost of tender is Rs. 2.68 crores, and, therefore, 2% of the said estimate cost, as per the Rule 36 of the Uttarakhand Rules 2017 comes to Rs. 5.37 lakhs.

14. The learned counsel for the petitioner submits that putting mandatory condition of depositing Rs. 25 lakhs as earnest money is wholly arbitrary, illegal and contrary to Rule 36 of the Uttarakhand Rules 2017. Similarly, in respect of the demand of performance guarantee, the contention of the petitioner is that as per the provisions of Uttarakhand Rules 2017, the performance guarantee cannot be more than 5% of the estimated cost. Since, in the present case, the estimated cost of tender is Rs. 2.68 crores (approx.), and, as such, 5% of the said amount

comes to Rs. 13,42,687/-, and, therefore, the demand of performance guarantee of Rs. 2 crores is totally arbitrary. The petitioner has relied upon Rules 20 (2)(16) of the Uttarakhand Rules 2017, which provides that in case, only one bid is received, then the bid should be cancelled. However, this condition was not incorporated in the tender notice dated 28.08.2023 floated for Gola River.

15. In WPMB No.235 of 2023, the petitioner submits that against the conditions, which the petitioners are questioning in these writ petitions, the petitioner filed the objections by submitting representation dated 01.09.2023, but no action was taken thereon. Even, a pre-bid meeting was not called, to enable the petitioner to raise the said objections.

16. The tender pertaining to the Gola River was floated on 28.08.2023; the last date for purchasing the bid document was 05.09.2023, and; the last date of submission of bid was 07.09.2023. Technical evaluation date was fixed for next working day, i.e., on 11.09.2023. Learned counsel for the petitioner submits that at the first instance, bid of only one bidder was found to be technically responsive. In such eventuality, the tender was liable to be cancelled and the respondents should have gone for fresh tender process, but the respondents proceeded to open the financial bid of the sole bidder.

17. Subsequently, these writ petitions, i.e. Writ Petition (M/B) No. 252 of 2023 and Writ Petition (M/B) No. 235 of 2023, have been filed challenging the tender conditions, on the ground that these conditions are contrary to the provision of the Uttarakhand Rules 2017 and arbitrary.

18. Similarly, in respect of the tender for Kosi River (challenged in Writ Petition (M/B) No. 200 of 2023), in which tender was floated on 12.07.2023, a total of four bidders submitted their bids, but on technical evaluation, only one bid was found to be responsive, i.e. of M/s Leotronics Scales Private Limited, Amritsar. The contention of the learned counsel for the petitioner is that since only one bid was declared to be technical responsive, the respondent should have cancelled the tender process and published a fresh tender notice, as per the condition of the Uttarakhand Procurement Rules, 2017. Surprisingly, instead of inviting a fresh tender, financial bid of only one bidder, namely, M/s Leotronics Scales Private Limited, Amritsar-Respondent No. 3, was opened.

19. It is the specific case of the petitioner, as pleaded in the petition (WPMB No. 200 of 2023), that prior to participating in the bid, the petitioner raised an objection against the conditions as stipulated in the tender by making a representation dated 19.07.2023 which was sent through mail, but, surprisingly the respondent-Corporation had not taken any action on it. Apart from this, further contention has been raised in this petition that as per Rule 20 of the Uttarakhand Rules 2017, in order to maintain fairness, transparency, competition and elimination of arbitrariness in the procurement process, clause (ix) requires that bids received should be evaluated in terms of the conditions already incorporated in the bidding document, and no new condition in the bidding document can be brought in for evaluation of bids, while in the case in hand, respondent Corporation issued a corrigendum on 28.07.2023 and changed the condition, and this change of condition was never advertised in any newspaper. This corrigendum dated 28.07.2023 is also brought on record as

Annexure-5. The corrigendum issued on 28.07.2023 is being extracted hereunder"

"उ�राख� वन िवकास िनगम प्रधान काया�लय अर� िवकास भवन, 73 नेह� रोड, देहरादून पत्रांक-3-1904 िनिवदा(2044) 2023 िदनांक 28 जुलाई

िनिवदा आमंत्रण संशोधन सूचना उ�राख� वन िवकास िनगम की पत्र सं 0-1002/ िदनांक 12 जुलाई 2023 के मा�म आरि�त वन �ेत्र की नदी तल शारदा कोसीदाका एवं गंगा एवं सहायक निदयों हेतु कम्�ूटरीकृत धम�कांटा सी ०सी०टी०पी० आरएफआईडी एवं इंटरनेट आिद काय� की स्थापना संचालन रखरखाव एवं मर�त हेतु इ�ुक कम� / संस्थाओं से दो प्र�ाव िनिवदा प्रणाली ( Two Bit System ) के �ारा सीलबंद िलफाफे म� िनिवदाएं आमंित्रत की गयी है। िवचार -िवमश� के उपरांत िन� प्रकार संशोधन िकया जाता है।

शत� सं०       पूव� शत� का िववरण                             संशोिधत शत�

fufonk lwpuk 03 वष� (खनन सत्र 2023-24 से 2026-27            03 वष� (खनन सत्र 2023-
                                                            24 से 2025-26

भाग-1 िबंदु   एक फम�/क�नी/ ���/ संस्था संयु� एक             एक फम�/क�नी/ ���/
सं० 1         या एक एक से अिधक निदयों के िलए                संस्था संयु� एक या एक
              िनिवदाय� प्रपत्र पृथक-पृथक प्रपत्र जमा        एक से अिधक निदयों के
              करायेगा/ प्र�ुत करायेगा/                      िलए िनिवदाय� प्रपत्र पृथक-
                                                            पृथक से प्रपत्र जमा
                                                            करायेगा/ प्र�ुत | करायेगा/
भाग-1 िबंदु   िनिवदा म� प्रितभाग बनाये रखने हेतु कम से      िनिवदा म� प्रितभाग बनाये
सं० 19        प्रितभािगयों को ही िव�ीय िनिवदा हेतु िनिवदा   रखने हेतु तकनीकी िनिवदा
              हेतु चयिनत िकया जा येगा एवं तदनुसार           म� सफल प्रितभािगयों को ही
              तदनुसार ही िव�ीय िनिवदा खोली                  िव�ीय िनिवदा हेतु हेतु
                                                            चयिनत िकया जायेगा एवं
                                                            तदनुसार तदनुसार ही
                                                            िव�ीय       िनिवदा      खोली
                                                            जायेगी।


भाग-1 िबंदु   उपरो� शत� सं0-70 पर तब ही िवचार िकया          उपरो� शत� सं 0-69 पर
सं0 69        जा सकेगा जब प्रथम प� के �ारा िकया गया         तब ही िवचार िकया जा
              काय� संतोषजनक हो तथा उसके �ारा                सकेगा जब प्रथम प� के
              उपखिनज िनकासी काय� के दौरान िकसी              �ारा िकया गया काय�
              प्रकार का िववाद अथवा �वधान उ�� न              संतोषजनक हो तथा उसके
              िकया गया हो एवं उसकी िकसी वन अपराध            �ारा उपखिनज | िनकासी
              म� िल� न हो साथ ही साथ उ�राख� वन              काय� के दौरान िकसी प्रकार
              िवकास िनगम की कोई देयता (Dues) न हो।          का िववाद अथवा �वधान



                                                       उ�� न िकया गया हो एवं
                                                       उसकी िकसी वन अपराध म�
                                                       िल� न हो साथ ही साथ
                                                       उ�राख� वन िवकास
                                                       िनगम की कोई देयता
                                                       (Dues) न हो।

भाग-3 िबंदु   ग-ऐसेट�ोका (ESSAE TERAOKA)               ऐसेट�ोका           (ESSAE
सं0 3.2                                                TERAOKA)        िलयोट�ोिनक
                                                       (Leotronic)

िनिवदा प्रपत्र िदनांक 31.07.2023 04.00 बजे अपराहन प्रधान काया�लय उ�राख� वन िवकास िनगम, अर� िवकास भवन 73-नेह� रोड म� जमा िकये जाने है एवं तकनीकी िनिवदाय� िदनांक 01.08.2023 को प्रातः 11.00 बजे एवं िव�ीय िनिवदाय� िदनांक 03.08.2023 को अ� िवकास भवन के सभागार म� खोली जायेगी। इसके अित�र� अ� शत� यथावत रहेगी।

प्रबंध िनदेशक उ�राख� वन िवकास िनगम"

20. Writ Petition (M/B) No. 200 of 2023 came before this Court on 08.08.2023 and on that date, notice was issued and the learned Senior Advocate Mr. Arvind Vashistha assisted by Mr. Virendra Kaparuwan appeared for respondent no. 1 and 2. Mr. Bhuwan Bhatt, learned counsel appeared for respondent no. 3 - M/s M/s Leotronics Scales Private Limited. The respondents were granted time to file the counter affidavit and as an interim measure, this Court directed that till the next date of listing no further steps shall be taken in pursuance of the tender in question. Thereafter respondent no. 1 and 2 filed their counter affidavit and in reply thereto rejoinder affidavit was also filed. The private respondent also filed the counter affidavit.

21. In the counter affidavit, objections raised by the petitioner have been denied. In para 4 of the counter affidavit, the respondents have pleaded that the petitioners' bids were rejected being technically non responsive, as the petitioners did not possess the mandatory certificates under points 3, 4, 5 and 10. The

reasons for declaring the petitioner, as technically non responsive, are stated to be as follows:-

(a) That part-I of the Tender (condition no. 18) clearly stipulates that if the eligibility conditions, as enumerated in serial nos. 8 to 17 are not met, then said tender will not be considered for technical evaluation, on grounds of non fulfilling the eligibility conditions.

(b) Nowhere has the petitioner challenged its disqualification, as above. Thus, once the petitioner's bid has been rightly rejected due to non eligibility which the petitioner has not disputed anywhere in the petition. Petitioner do not have any right to challenge the other tender conditions, since they would not make any difference whatsoever to the petitioner's bid, as the petitioner's bid did not even meet the basic eligibility criteria to participate in the tender in the first place.

22. Mr. Arvind Vashistha, the learned Senior Advocate for the respondents-Corporation submits that in Writ Petition (M/B) No. 200 of 2023, the petitioner should have challenged the conditions of the tender before participating in the tender process, but he has challenged the condition when his technical bid was rejected due to lack of eligibility, and, hence, this petition is not maintainable. Learned senior counsel further submits that the case, which has been built up in the representation by the writ petitioners, is different from the grounds as taken in the present petitions and in respect of the objection, which pertained to the e-procurement, these objections were never raised at any stage, and this is for the first time that these objections have been raised in these petitions.

23. This Court is not convinced with the arguments of the learned senior counsel for the respondents-Corporation, since, the tender which was submitted by the petitioner was effectively "under protest". The petitioner specifically pleaded in para 9 of the petition, that even before participating in the tender, the petitioner had raised the objections by representation dated 19.07.2023. Pertinently, in response to the said averment, the respondent has not disputed the fact of submission of this representation, and has merely stated that the same is a matter of record. Whether any decision was taken on the said representation, or not, the respondents are silent. It appears to us, that the respondent-Corporation deliberately avoided to deal with the petitioner's objections, which were submitted by the petitioner before participating in the tender process. Once the objection had been raised by any of the bidder before participating in the tender, the respondents who floated tender cannot be heard to say that the bidder is estopped from challenging the tender conditions, when there was no response/ decision taken on the objection.

24. On perusal of the counter affidavit, it appears that instead of giving response to the objection raised by the petitioner in respect of the certain conditions of the tender, what the respondents are contending is that, since the petitioners do not fulfil the eligibility criteria, as required under the terms and condition of the tender, therefore, petitioner were rightly declared to be technically non responsive. It is further contended that it is the prerogative of the procuring entity, which in the present case is the Forest Development Corporation, to decide the conditions that are best suited for the work at hand.

25. This argument is not sustainable, because it is an undisputed fact that the issues raised in these petitions regarding the tenders have not been addressed by the Corporation on merits. The violation of the Uttarakhand Rules, 2017 is blatant and completely arbitrary. The said rules are statutory in character, and the respondent themselves admit that these rules are applicable. The respondents have no authority to put the conditions in the tender, as per their own choice, contrary to the Rules, and which are arbitrary and whimsical, and bear no rational nexus to the object sought to be achieved.

26. With regard to the earnest money and performance guarantee, the learned senior counsel for the respondents- corporation submits that Part-4 of the Uttarakhand Rules 2017 does not contain any upper limit for the earnest money or performance guarantee and this part - 4 of the Rules pertains to the service contracts. In addition to this, the respondent further submits that if, for the sake of arguments, the petitioner's contention is accepted, then the other provisions of the Uttarakhand Procurement Rules 2017 regarding earnest money and performance guarantee as contained in Rule 36 and 44 can be looked into and, on perusal of the same, it reveals that it only recommends a general norm to be followed in normal circumstances, which explicitly allows the procuring entity to deviate from these provisions, and set any other amount, as they deem fit with respect to the work at hand. In support of this submission the learned Senior Counsel for the respondent submits that the employer is the best person to understand and appreciate the requirements of the project and set down the tender terms and conditions. He further submits that since the tender in question is for the installation and maintenance of computerized electronic weighbridges,

CCTV cameras, internet and RFID services and the Uttarakhand Forest Development Corporation undertakes the extraction of mine minerals (sand, boulder and bajri), the introduction of this advanced computerized technique of mines and minerals, for which the tender was floated, is an important factor for State's economy as well as ecology the higher amount of earnest money, performance guarantee and annual turnover requirements cannot be said to be arbitrary, and it is in the interest of the State to engage reputed and financially sound firms/companies.

27. We do not find any substance in these arguments. Once the procedure has been prescribed under the Statutory Rules, the respondents being a government entity has no power to put any condition which is de hors, or contrary to the rules. A criteria has been laid down under the Rules for determination of earnest money; for furnishing the performance guarantee; as well as the stipulation of turnover, and, therefore, the respondents should go strictly as per the mandate of the Uttarakhand Procurement Rules 2017. The respondents have not produced any record, which would show any application of mind to consciously deviate from the Procurement Rules relating to prescription of EMD, past experience, turnover etc. Even before us, no justification or reason has been placed to justify or explain as to why disproportionally high requirements were laid in respect of EMD Security Deposit and past turnover.

28. The petitioners' case is that as per Rule 20 (16) of the Uttarakhand Procurement Rules, 2017 in case, if only one bid is found to be responsive, then the bid should be cancelled and it should be re-advertised and if on re- advertisement also, again only one bid is received, then it

can be considered, subject to certain conditions. In response to this, the respondents' submission is that Rule 20 (16) is applicable only when one tender is received, and not in cases, where more than one tender is received but only one tender is found technically responsive. In writ petition, i.e. Writ Petition (M/B) No. 200 of 2023, four tenders were duly received, so there is no reason to cancel the tender under Rule 20 (16) of the Uttarakhand Rules 2017.

29. The arguments of the learned senior counsel for the respondents cannot be accepted, particularly, in view of the condition no. 19 of the tender which clearly stipulates that for the purpose of opening financial bids, there should be three successful bidders. It talks of top three bidders. Therefore, obviously, at least three should qualify. In other words, the correct interpretation of Clause 19 of the tender notice is that for the purpose of opening financial bid, at least three bidders should be declared technically qualified, but here, what the respondents have done, which is evident from their statement as given in para 12 of the counter affidavit, that the Corporation has issued Corrigendum on 28.07.2023 - which, according to the respondents was issued to ensure the compliance with Rule 58 of the Uttarakhand Procurement Rules 2017, whereby condition no. 19 was modified. At this juncture Rule 58 of the Uttarakhand Procurement Rules 2017, which the respondents have already mentioned in para 12 of the counter affidavit is being extracted hereunder:-

"58. Evaluation of financial bids of qualified bidders on technical basis:- Financial bids of only those bidders who are declared technically qualified by the Consultative Evaluation Committee should be opened for further analysis, evaluation, ranking and selection of the successful tenderer."

30. The question is that, once the condition was stipulated in the tender document, that for the opening of the financial bids, there should be at least three technically responsive bidder, whether the action of the Respondents to incorporate a modification, by simple corrigendum which was issued on the last date of receiving the bids, could be said to be legal and justified. Pertinently, in para 17 of the petition, it is specifically pleaded that this corrigendum was never advertised in any newspaper and the date of accepting the tender was extended till 31.07.2023. In para 17 of the writ petition, it is specifically pleaded that 29.07.2023 was Saturday and 30.07.2023 was Sunday. But surprisingly, there is no specific response or denial to this averment and merely in para 24 of the counter affidavit, it is stated that contents of para 17 of the petition are not admitted and are false, and this submission that petitioner could not show that he is eligible.

31. After examining the submissions, as advanced by Mr. Arvind Vashishta, this Court is of the view that the respondents have deliberately and, at the last moment, changed the conditions by issuing corrigendum, and further that corrigendum was not issued in any newspaper, and it appears to this court that the respondent corporation had deliberately and intentionally changed the condition at the last moment in order to award the work of tender to respondent no. 3.

32. The respondents have floated the tenders, which were not as per the provisions of Uttarakhand Procurement Rules 2017. Further, incorporating the condition for earnest money of Rs. 25 lakhs, annual turnover for the bidder of Rs. 10 crores, and the requirement of performance guarantee of Rs. 2 crores in two tenders (in WPMB No. 235

of 2023 and 252 of 2023) and Rs. 1.25 crores in respect of one tender in WPMB No. 200 of 2023, despite the fact that the cost of tender value is 2.68 crores in each case, was wholly unreasonable and contrary to the provisions of Uttarakhand Procurement Rules 2017. The respondents failed to give any justification for putting these conditions, which appears to be arbitrary, illegal and contrary to the Uttarakhand Procurement Rules 2017.

33. Last, but not the least, we are of the view that the tenders in question are fundamentally flawed, inasmuch as, they lay down the requirement of the bidder supplying the weighbridge of particular brands, namely Mettler Toledo, Minebea/Satorious, Essae Teraoka and Leotronic in terms of Clause 3.2 of the Technical Specifications in Part-3. The respondents should have laid down the specifications, of which the equipment was required to be installed under the tenders in question. However, they could not have limited the tender to only specific four brands, when there could be scores of other brands available in the market, which may be as good, if not better than the notified brands. This action of the respondents is clearly arbitrary, and the four brands appear to have been stipulated to favor only those brands. The requirement that the bidder should have a manufacturing plant, for manufacture of weighbridge of one of the specified brands, means that only the manufacturer of the specified brands could participate in the tenders, thereby excluding all others. It is completely absurd to require that the manufacturers should, themselves, participate in the tender for setting up, assembling and running the weighbridge. This action of the respondents is clearly in the teeth of the judgment of the Delhi High Court in M/s Omega Elevators v. Union of India & Anr., W.P. (C)5385/2021 dated 08.09.2021.

Therefore, this Court is of the view that all these writ petitions are liable to be allowed. We, therefore, allow these Writ Petitions, and quash the tenders in question.

34. The impugned tender notice dated 28.08.2023 which pertains to Gola River and is subject matter in WPMB No. 235 of 2023 and WPMB No. 252 of 2023 are hereby quashed and the respondents are directed to issue fresh tender strictly as per the provisions of Uttarakhand Procurement Rules 2017.

35. So far as WPMB No. 200 of 2023 is concerned, order dated 03.08.2023 is challenged. However, the tender which was floated for Kosi River on 12.07.2023 is not challenged pursuant to which tender process were initiated. Though the tender notice is not under challenged but the petitioner seriously attacked on the conditions as stipulated in the tender process as the same are contrary to the provisions of Uttarakhand Procurement Rules 2017. This Court is of the view that the conditions stipulated in the tender notice dated 12.07.2023 are contrary to the provisions of Uttarakhand Rules 2017. Therefore, by exercising powers as provided under Article 226 of the constitution of India, this Court can mould the relief, and consequently we also quash the tender notice dated 12.07.2023, as well as the action taken thereunder, including the order dated 03.08.2023, whereby only one bid of the private respondent was declared to be responsive. A writ of mandamus is issued to respondent no. 1 and 2 to undertake fresh tender process strictly under the provisions of Uttarakhand Procurement Rules 2017 which pertains to Kosi River and Gola river.

36. The Respondent authorities are subjected to costs of Rs. 50,000/- in each of these petitions, which shall be recovered personally from the tender issuing authority viz., the Managing Director of Uttarakhand Forest Development Corporation. We further direct the Vigilance Department of the State to examine and look into the conduct of the Managing Director, and all other officers in the respondent corporation, who were responsible in issuing the patently illegal tenders in question. The Vigilance Report shall be placed before this Court in four months. If not placed, the Registry shall list the matters before Court for further orders.

________________ VIPIN SANGHI, C.J.

__________________ RAKESH THAPLIYAL, J.

Dt: 26th OCTOBER, 2023 Parul