Ashish Sharma Vs. State of H.P. and Ors. - (High Court of Himachal Pradesh) (06 Aug 2019)

Once it is admitted that, invitation is open to all, additional condition cannot be imposed

MANU/HP/0989/2019

Commercial

In present case, the 2nd respondent issued an 'Invitation for Bid' for the award of a contract for the periodical renewal work in the State of Himachal Pradesh under the Annual Renewal Programme for the year 2019-2020. The Petitioner submitted his technical and financial bid online. After intimating him through an e-mail that his technical bid has been accepted, the respondents informed the petitioner by a subsequent e-mail sent on the same day that, the duly constituted Committee has rejected his bid during technical evaluation. It revealed that the bid submitted by the Petitioner was treated as nonresponsive, in the light of Clauses 4.3 and 4.5.3(b) of the ITB.

Clause 4.3(a) of Bid document, is a prescription under which the status of the bidder, either as an individual or as a member of the HUF or as a partner in a firm or as a private or public limited company, is sought to be ascertained. It has nothing to do with the status of the individual as a Class-A or Class-B Contractor. It has nothing to do with the registration that is obtained by an individual from the Public Works Department.

In fact, the 'Invitation for Bid', does not restrict the eligibility to bid, only to contractors registered with the Public Works Department. It is an invitation to all and not restricted to the registered contractors or contractors registered for a value equivalent to or higher than the value of the contract. Hence, the first ground on which the technical bid of the petitioner was rejected, does not appear to be valid.

The legal status of a bidder is to be found out by the nature of the constitution. It could be an individual or a partnership firm or a limited company or a limited liability partnership. If the status of the bidder falls under anyone of these categories (other than being an individual), the registration of the same as an entity is what is sought to be inquired by the Pro-forma in Section 2.

Once it is admitted that the invitation is open to all, the Respondents cannot go beyond what is stated in the bid document and impose an additional condition. Therefore, the first ground on which the technical bid of the Petitioner was rejected, with reference to Clause 4.3(a) of the bid document, is liable to be rejected.

Regarding second ground, the claim of the Petitioner is that, his average annual turnover for the past five years, as per the Certificate of the Chartered Accountant, was more than Rs. 1.26 crores. The total value of the contract in question is Rs. 3,68,87,635. Therefore, the Petitioner's average annual turnover for the last five years is greater than 33% of the tender cost. Hence, the Petitioner cannot be said to have not fulfilled the condition stipulated in Clause 4.5.3(a). The Respondents did not dispute the correctness of the claim made by the Petitioner about his average annual turnover. Therefore, the Petitioner in fact satisfies the criteria indicated in Clause 4.5.3(a).

Technically, 'WBM' stands for 'Water Bound Macadam'. It is stated to be only a part of sub grade of any road. Similarly, 'BM' stands for 'Bituminous Macadam', which is said to be an undesigned recipe type, open graded mix used for low traffic roads as a drainage layer. 'BC' stands for 'Bituminous Concrete'. Therefore, present Court not able to make out whether the Petitioner could be taken to have fulfilled the requirement of experience in successfully completing at least one contract of MDR/Highway. The Respondents was right in rejecting the technical bid of the Petitioner on the basis of Clause 4.5.3(b). Petition dismissed.

Tags : BID REJECTION LEGALITY