Odisha High Court dismissed the Writ Petition to quash the Order of Tender Evaluation Committee, as the Court finds there is no malafide decision

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In the case of M/s. Prasanna Kumar Parhi v. State of Odisha & Others, the Petitioner filed a Writ Petition under Article 226 & 227 of the Constitution of India to quash the order given by Tender Evaluation Committee of rejecting the technical bid of the petitioner.

Brief Facts of the Case

National Competitive Bidding through e-procurement for construction of HL Bridge near Dihabalarampur stand works by the Opposite Parties. One of the eligibility conditions as per Detailed Tender Call Notice (DTCN) in their clause was mentioned that the intending tender should have the total financial turnover in respect of the Civil Engineering Works of an amount not less the amount put to tender during any 3 financial years. The Financial Turnover Certificate for Civil Engineering Works was required to be submitted from the Charted Accountant showing clearly the financial turnover year wise. It was also stipulated in that clause that the tenderer not fulfilling the eligibility criteria could submit the tender on their own risk, as the tender would summarily be rejected.

The Petitioner submitted his bid application online with documents including Annual Turnover (ATO) certificate from Chartered Accountant. The approximate cost was Rs.45,70,54,874.

On 17.09.2018, opposite parties evaluated the technical bid and found the petitioner qualified, and he was informed in the official website on 18.09.2018. The financial bid was open on 19.09.2018 and petitioner’s firm was found to have quoted the lowest amount amongst four bidders. But on 11.10.2018, one of the opposite party intimated that tender had been rejected during Technical Evaluation by the duly constituted committee, for the reason it was “Disqualified”.

Averring that the act of above opposite parties in disqualifying the petitioner after finding him qualified in the Technical bid was illegal and violative of statutory provisions of law. Hence, the prayer is made in this writ petition to quash the order given by the Technical Evaluation Committee to disqualifying the petitioner and also allow the petitioner to execute the work.

Arguments before the Court

Argued by the learned Counsel of the petitioner that once the petitioner-tenderer is found to be qualified and notified as such and his financial bid is found to be the lowest one amongst four others, the rejection of his bid subsequently as disqualified is nothing but malafide or arbitrary and same having been done without giving the opportunity of hearing to the petitioner, the bid inviting tender is liable to be quashed.

Argued by the learned Counsel of the opposite parties that disqualified tenderer cannot be allowed to be qualified for the bonafide mistake committed to course of verification of technical bid. He further submitted that the ATO certificate submitted by the petitioner as tender document which is the basis of disqualification cannot be said to have been wrongly calculated or considered by the Tender Committee subsequently. It was also contended that the work cannot be entrusted to a disqualified ineligible tenderer.

Court’s View

The estimated cost of the work was Rs. 45,70,54,874 as per the DTCN. A tenderer for participation is required to show the total financial year turnover in respect of Civil Engineering Works of an amount not less than the above amount during the three financial years. The amount year-wise furnished by the petitioner if calculated in any manner would not meet the eligibility requirement as far as ATO is concerned. This being the factual position, we have to accept that a mistake was committed while evaluating the technical bid. If a mistake concerning eligibility is detected subsequently, it cannot be said that the mistake is beyond correction. No malafide can be attributed in the case at hand because the document containing ATO filed by the petitioner itself makes the petitioner ineligible for participation.

In support, this HC referred to the decision of Hon’ble Supreme Court in the case of Municipal Corporation, Ujjain & Anr. V. BVG India Ltd. & Ors. [AIR 2018] It has been enumerated under the scope of judicial review that the HC could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualification of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder.

Court’s Decision

For the aforesaid reason, this Court is of the view that disqualification of the petitioner in the aforesaid tender bid does not suffer from any arbitrary, perverse or malafide action of opposite parties and the petitioner is not entitled to any relief on judicial review of the tender in question.

In the result, the writ petition stands dismissed.


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