Manipur High Court
M/S Bhartia Infra Project Ltd. Having … vs The Union Of India Through The Secretary on 15 April, 2025
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
KABORAMBAM Digitally signed by
KABORAMBAM SANDEEP
SANDEEP SINGH
Date: 2025.04.15 13:36:59
SINGH +05'30'
REPORTABLE
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.A. No. 44 of 2024
With
W.A. No. 45 of 2024
1. M/s Bhartia Infra Project Ltd. Having its head office
at 201 Royal Arcade, Dr. B. Baruah Road, Ulubari,
P.O. & P.S. Ulubari, Guwahati-781007
2. M/s GKC Projects Limited (Joint Venture) having its
office at Sy. No. 9 (P). CII Green Building Lane,
HITEC City, Kondapur, Hyderabad-500084,
Telangana, India respectively.
The Appellant Nos. 1 and 2 are
represented by the authorised Signatory
namely Shri Ningombam Ibochouba Singh,
aged about 52 years, S/o N. Nabakumar
Singh of Chingamakha Phura Makhong,
PO & PS Singjamei, Imphal West District,
Manipur-795008.
Appellants
-Versus-
1. The Union of India through the Secretary, Ministry
of Road Transport & Highways, Transport Bhawan,
1, Parliament Street, New Delhi - 110001.
2. The State of Manipur represented by the
Commissioner (Works), Govt. of Manipur, Old
Secretariat Complex, Babupara, Imphal West,
Manipur-795001.
3. The Project Director-cum-Chief Engineer, Externally
Aided Projects (EAP), Public Works Department
(PWD), Manipur having its office at PWD Complex,
Khuyathong, P.O. & P.S. Imphal, Imphal West
District, Manipur.
Respondents
W.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 1
BEFORE
HON’BLE THE CHIEF JUSTICE MR. D. KRISHNAKUMAR
HON’BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the appellants :: Mr. HS Paonam, Sr. Advocate
For Respondent No. 1 :: Mr. S. Vijayanand Sharma, Sr. PCCG
For Respondent Nos. 2 & 3 Mr. M. Devananda, Addl. A.G.
Ms. N. Jyotsana, Advocate
Date of reserving Judgment & Order :: 20.02.2025
Date of Delivery of Judgment & :: 15.04.2025
Order
JUDGMENT & ORDER
(CAV)
JUSTICE D. KRISHNAKUMAR, CJ:
[1] The present writ appeals have been filed by the appellants,
challenging the impugned common judgment and order dated 28.08.2024
passed by the writ court, dismissing W.P. (C) No. 477 of 2024 and W.P. (C)
No. 521 of 2024.
[2] The point for consideration of present appeals is whether the
appellants/writ petitioners are eligible to participate in the contract.
[3] Learned senior counsel appearing for the appellants, submits
that the appellants/petitioners participated in the NIT bearing Specific
Procurement Notice (SPN)/ Tender No. 22/PD/PIU/MUR/PROC-CW/2024/01
dated 15.03.2024 for Package No. & Name: MUR-CW-04 & Construction of
Rigid Pavement and Lined Drain of Selected Roads under Highway South
Division – Package-4: Total Road Length – 111.182 km. The
appellants/petitioners have submitted the technical bid as per the terms and
conditions of the notification.
W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 2 [4] The technical bids submitted by the tenderers, including the
appellants were opened on 24.05.2024 in the office of respondent No. 3
and the result of the same was declared on 29.07.2024 rejecting the
technical bid submitted by the appellants on the ground of non-responsive
whereas technical bid of AMRIL-IRCON Joint Venture was accepted and
updated in the official website of the employer.
The technical bid of the appellants was rejected on the ground
of non-performance contract in view of the termination of contract of the
petitioner by the Railway Department vide order dated 26.09.2022.
[5] The appellants filed two writ petitions, (i) W.P. (C) No. 477 of
2024 praying for writ of mandamus for not making applicable the terms and
conditions as mentioned at the Footnote of the Qualification Criteria of
Clause No. 3 of the Tender Document for procurement of works and (ii) W.P.
(C) No. 521 of 2024 praying for writ of certiorari for setting aside the
impugned rejection of the technical bid.
[6] Learned senior counsel appearing for the appellants submitted
that they have submitted Form CON-2 Historical Contract Non-performance,
voluntary disclosing Non-performed contracts under Clause 3.2.1 of the
tender notification and one of such non-performance occurred in the year
2022. Learned senior counsel appearing for the appellants would submit
that as per the terms and conditions stipulated in the guidelines, they
cannot reject the application on the ground of non-performance, since the
appellants company did not come in the list of non-performance.
W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 3 [7] Learned senior counsel for the appellants, relying upon the
clarification letter dated 17.07.2024 sent by the Deputy Chief Engineer/Con-
4/Imphal, NF Railway, wherein it has been clarified that the appellant
Agency M/s Bhartia Infra Project Limited is not declared as “Non-Performer”
by the Railway Department, and states that the appellants company has
satisfied the eligibility criteria to participate in the said contract work and
the rejection order needs to be set aside.
[8] According to the learned senior counsel for the appellants, the
aforesaid technical bid was opened on 24.05.2024 and by communication
dated 28.05.2024, respondent No. 3 wrote a letter to the Deputy Chief
Engineer, Con NF Railway, Imphal-IV, requesting the latter to provide an
update on the status of historical contract non performance of the
contractors including the appellants.
On 12.06.2024, in response to the aforesaid letter, the
Deputy Chief Engineer, CON, NF Railway, Imphal has sent a communication
to the respondent No. 3, which reads as follows:
“In reference to the above mentioned subject, it is
intimated that the following two agencies were engaged under
the jurisdiction of Dy. Chief Engineer/Construction-IV/Imphal
and the following information are provided as desired vide the
referred letter.
1. Bhartia Infra Project Ltd:
• The contract agreement No. CON/J-I/2612 dated
12.03.2020 with M/s Bhartiya Infra Project Ltd. was
terminated vide letter No. W/60/CON/J-
I/EMB/2019/RT-1/2612 dated 26.09.2022. Despite the
termination of the aforementioned contract, M/s
Bhartiya Infra Project Ltd. has several other ongoingW.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 4
contracts with the railway which are under progress as
per schedule.
• A legal case concerning this termination is currently
ongoing, and the court has not given any ruling in this
regard.
2.IRCON International Ltd:
• IRCON International Ltd. is presently engaged in the
work of the final location survey for the Imphal-Moreh
railway project.
• The work under this project is ongoing and
progressing as per the schedule.
This is for your kind information please.”
[9] The appellants submitted representation on 13.07.2024
requesting the authority not to reject their technical bid. The appellants
submit another representation dated 17.07.2024 to the Deputy Chief
Engineer, Railway, Imphal. On the same day, i.e, on 17.07.2024, the Deputy
Chief Engineer, Con NF Railway, Imphal-IV has sent a clarification letter to
the effect that since the debarment as mentioned in the termination order
was only for non-participation in the tender for executing the balanced
tender work, and there has been no adverse remark on the ongoing works
awarded before and after the termination order dated 26.09.2022 and
further clarified that based on the overall performance, M/S Bhartia Infra
Project Limited is not declared “non-performer” by the Railway Department.
[10] On the same day, the appellants also made another
representation dated 17.07.2024 furnishing the aforesaid clarificatory letter
to the tender inviting authority to consider for not making applicable of the
terms and conditions as mentioned at the Footnote of the qualification
criteria of clause No. 3 of the Tender Bidding Documents.
W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 5 [11] In the meantime, the appellants filed the aforementioned writ
petitions. As the two writ petitions were filed by the same petitioners the
same were clubbed together and taken up for hearing.
[12] According to the appellants/petitioners, they have relied upon
the documents as stated above and made the aforementioned submission
before the writ court in the writ petitions. However, the writ court did not
consider in proper perspective and both the writ petitions were dismissed by
the learned Single Judge.
Hence, the present writ appeals have been filed before this
Court.
[13] Learned senior counsel appearing for the appellants, strongly
relies upon the Clause 3 of the Tender Notification which prescribes
eligibility and qualification criteria to be fulfilled by the bidder. The applicant
has to satisfy that Non-performance of a contract did not occur as a result
of contractor default since January 1, 2019. Clause 32.3 of Section I, it
provides that if a Tenderer does not meet the qualifying criteria specified in
Section III, Evaluation and Qualification Criteria, its Tender shall be rejected
by the Employer and may not subsequently be made responsive by
correction of the material deviation, reservation or omission.
[14] Learned senior counsel appearing for the appellants, has
strongly relying upon the aforesaid documents of the railway department
stating that they are eligible for participating in the tender works and
W.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 6
therefore the decision of the respondents is arbitrary and discriminatory.Therefore, the appellants seeks to set aside the order of the writ court by
granting relief to the writ petitioners to open price bids and declare the writ
petitioners eligible to participate in the said contract work.
[15] Mr. M. Devananda, learned Additional Advocate General,
appearing for the State respondents, drew the attention of this Court by
relying upon eligibility and qualification criteria in clause 3.2 Historical
Contract Non-Performance, which provides as follows:
Compliance Requirements Documentation
3.2 Historical Contract Non-Performance
3.2.1 History of Non- Must meet Must meet Must meet N/A Form Con-2
Non- Performance of requirement requirement requirement
Performing a contract did
Contracts not occur as a
result of
contractor
default since
January 1,
2019
[16] Non-performance of the contract did not occur as a result of
the contractor default since January 1, 2019. Considering his voluntary
declaration before the authority concerned, he is not eligible to be
considered. Therefore, his application was rejected at the time of evaluation
of the technical bid. As per the tender notification, the evaluation committee
has opened the said technical bid on 24.05.2024 and declared the result on
29.07.2024 with remarks “Substantially Non-Responsive Technical Part of
the Tender” so far as the appellants are concerned and hence the
appellants company is rejected for the aforesaid construction of rigid
pavement of lined drain of selected roads under Highway South Division-
Package No. 4:Total Road Length – 111.182 km.
W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 7 [17] Learned Additional Advocate General, further submits that the
Evaluating Committee has scrutinized the application of the appellants
based on the eligibility criteria as per terms and conditions in the tender
notification issued by the department. The appellants have voluntarily
disclosed non-performed contract in the said application under Clause 3.2.1
of the tender notification but subsequently, they submitted representations
on 13.07.2024 and 17.07.2024 addressed to the Railway authority and they
got clarification reply from the railway department on 17.07.2024 by stating
that the appellants company is not declared a non-performer by the
Railway. The technical bid was opened on 24.05.2024. Hence, the
petitioner’s tender was rejected based on the voluntary disclosure in the
application form.
[18] This Court has directed the respondents to produce the
original records before this Court and the same is produced and the officer
concerned is also present before the Court to assist the Court.
[19] Heard the parties and perused the materials on record. The
Government of Manipur, through its Public Works Department has planned
to take up a project on improvement of roads within Imphal City with rigid
pavement including concrete lined drains with finance assistance from Asian
Infrastructure Investment Bank.
Therefore, one administrative decision was taken to invite
tender for the aforesaid project work for Improvement Of Roads Within
W.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 8
Imphal City With Rigid Pavement Including Concrete Lined Drains for the
following works.
Sl. Package Name IOCT No. and Package No. Bidding
No. Documents
1. Construction of Rigid MN/PWD/EAP/MURDAMIP/PROC- Tender document
Pavement and Lined W/2024/01 issued separately
Drain of Selected
Roads under Imphal MUR-CW-01
West Division Package
1: Total Road Length
172.858 km
2. Construction of Rigid MN/PWD/EAP/MURDAMIP/PROC- Tender document
Pavement and Lined W/2024/02 issued separately
Drain of Selected
Roads under Imphal MUR-CW-02
East Division (ED-1) -
Package 2: Total Road
Length -141.032 km
3. Construction of Rigid MN/PWD/EAP/MURDAMIP/PROC- Tender document
Pavement and Lined W/2024/03 issued separately
Drain of Selected
Roads under Imphal MUR-CW-03
East Division (ED-2) -
Package 3: Total Road
Length -122.209 km
4. Construction of Rigid MN/PWD/EAP/MURDAMIP/PROC- Tender document
Pavement and Lined W/2024/04 issued separately
Drain of Selected
Roads under Highway MUR-CW-04
South Division Package
4: Total Road Length
111.182 km
[20] The Specific Procurement Notification (SPN) for the
e-procurement of the work was issued on 15.03.2025 by the Project
Director, Externally Aided Projects, PWD Manipur and the notice was
advertised in National Newspaper, namely, The Indian Express (New Delhi
W.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 9
Publication) and the same was also uploaded in the e-procurement website
https://www.manipurtenders.gov.in to enable access by the intending
tenderers and pursuant to the said notification, the tenderers were invited
to submit their application through the e-procurement website as per the
terms and conditions on or before 14:30 hours of 24.05.2024, issued vide
its Addendum No. 3 dated 09.05.2024.
[21] The Tender Evaluation Committee comprising of the following
officers has been constituted on 05.03.2024.
1. Mr. Y Joykumar Singh, : Chairman
Project Director-cum-Chief Engineer, EAP, PWD Manipur
2. Mr. Ch. Bishwachandra Singh, : Member
Additional Chief Engineer-II, EAP, PWD Manipur
3. Mr. Salam Somorendro Singh, : Member
Chief Finance Officer, PWD Manipur
4. Ms. Rubee K, : Member
Sr. Project Manager, EAP, PWD Manipur Secretary
5. Mr. Serto Teneilen Kom, : Member
Project Manager, EAP, PWD Manipur
Since Mr. Y. Joykumar Singh, Project Director-cum-Chief
Engineer, EAP, PWD Manipur retired from the Government Service on
attaining age of superannuation, a new Tender Evaluation Committee
comprising of the following officers are reconstituted on 09.07.2024 :
1. Mr. Ch. Bishwachandra Singh, : Chairman
Project Director, EAP, PWD Manipur
2. Mr. Ch. Utam Singh, : Member
Superintending Surveyor of Works, PWD, Manipur
3. Mr. Salam Somorendro Singh, : Member
Chief Finance Officer, PWD Manipur
4. Ms. Rubee K, : Member
Sr. Project Manager, EAP, PWD Manipur Secretary
5. Mr. Serto Teneilen Kom, : Member
Project Manager, EAP, PWD ManipurW.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 10
[22] Subsequent to the reconstitution of the Tender EvaluationCommittee, by office memorandum dated 11.07.2024, the Bid Evaluation
Committee for procurement of Civil Works and Consultancy Firms for
“Manipur Urban Road Drainage and Asset Management Improvement
Project” is requested to attend meeting for finalisation of “evaluation of
technical part of the tender” for procurement of civil works for the above
project by its notice dated 15.03.2024, at the office chamber of the Project
Director, PIU, EAP, PWD, Manipur on 12.07.2024 at 15:30 Hrs IST. The said
notice was issued by the Project Director, PIU, EAP, PWD, Manipur cum
Chairman, Bid Evaluation Committee. Copies also marked to the members
of the committee.
[23] Technical Bid Evaluation Reports for procurement of Civil
Contractors was submitted vide Proceeding No. 22/PD/PIU/MUR/PROC-
W/2024/8824 dated 12.07.2024.
The committee has carried out evaluation of the technical bid
for procurement of civil contractor and come to the conclusion that
tenderer, GKC-BIPL JV fails to meet the requirements under Historical
Contract Non-Performance and therefore, the Evaluation Committee
concludes that the technical bid submitted by the GKC-BIPL JV is
substantially non-responsive to the Technical requirements specified in
Section -III Evaluation and Qualification Criteria of the Tender Document
and thus, based on the decision of the evaluation committee, the
respondents have rejected the tender application of the appellants.
W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 11 [24] The evaluation committee has rejected the appellants' tender
based on the declaration made under clause 3.2.1 in the form which has
been submitted along with the application. The appellants company has
approached the Project Director by submitting their representation dated
17.07.2024, after the opening of the tender technical bid on 24.05.2024 and
finalised on 12.07.2024.
[25] The appellants company had submitted the tender form by
voluntary disclosing under Clause 3.2.1. of the tender notification that he is
a non-performer. Therefore, the Tender Evaluation Committee has rejected
his application by relying on his voluntary declaration in the tender form.
The appellants company has submitted the clarificatory letter issued by the
railway authority dated 17.07.2024 which is subsequent to the tender
document submitted by the appellant, after the respondent authority has
opened the technical bid on 24.05.2024 and the Evaluation Committee
finalised the technical bid on 12.07.2024 and thus, there is no error or
illegality committed by the respondent highway authority for rejecting his
technical bid.
[26] The Tender Evaluation Committee have rejected the technical
bid of the appellants, based on the voluntary disclosure made in the tender
application form, now the appellants cannot take u-turn and seek for the
reconsideration, contrary to the said terms and conditions of the tender
notification and therefore the said contention of the appellants cannot be
accepted and the same is liable to be rejected.
W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 12 [27] It would be relevant to rely on the decision in the case of
Directorate of Education and Ors. Vs. Educomp Datamatics Ltd.
and Ors, reported in AIR 2004 SC 1962, wherein the Hon’ble Court held
that:
12. it has clearly been held in these decisions that the terms of the
invitation to tender are not open to judicial scrutiny the same being
in the realm of contract. That the government must have a free
hand in setting the terms of the tender. It must have reasonable
play in its joints as a necessary concomitant for an administrative
body in an administrative sphere. The courts would interfere with
the administrative policy decisiononly if it is arbitrary, discriminatory,
mala fide or actuated by bias, it is entitled to pragmatic adjustments
which may be called for by the particular circumstances. The courts
cannot strike down the terms of the tender prescribed by the
government because it feels that some other terms in the tender
would have been fair, wiser or logical. The courts can interfere only
if the policy decision is arbitrary, discriminatory or mala fide.
Further, in the case of Jagdish Mandal Vs. State of Orissa
and Ors.; reported in (2007) 14 SCC 517, the Hon’ble Supreme Court
has elaborately considered the scope of judicial review under Article 226 of
the Constitution of India, following the decision rendered in Sterling
Computers Ltd. V. M & N Publications Ltd reported in AIR 1996 SC
51 and Tata Cellular V. Union of India reported in AIR 1996 SC 11,
wherein the Hon’ble Supreme Court has held that the scope of judicial
review of administrative action in exercise of power in awarding contract is
limited scope. The Hon’ble Supreme Court further relying upon Raunaq
International Ltd. v. I.V.R. Construction Ltd. reported in AIR 1999
SC 393.
W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 13
The aforesaid judgments have been followed in the decision in
the case of Jagdish Mandal (Supra), wherein the Hon’ble Supreme Court
has held as follows:
“19 . Judicial review of administrative action is intended to prevent
arbitrariness, irrationality, unreasonableness, bias and malafides. Its
purpose is to check whether choice or decision is made ‘lawfully’ and
not to check whether choice or decision is ‘sound’. When the power
of judicial review is invoked in matters relating to tenders or award
of contracts, certain special features should be borne in mind. A
contract is a commercial transaction. Evaluating tenders and
awarding contracts are essentially commercial functions. Principles of
equity and natural justice stay at a distance. If the decision relating
to award of contract is bona fide and is in public interest, courts will
not, in exercise of power of judicial review, interfere even if a
procedural aberration or
error in assessment or prejudice to a tenderer, is made out. The
power of judicial review will not be permitted to be invoked to
protect private interest at the cost of public interest, or to decide
contractual disputes. The tenderer or contractor with a grievance can
always seek damages in a civil court. Attempts by unsuccessful
tenderers with imaginary grievances, wounded pride and business
rivalry, to make mountains out of molehills of some
technical/procedural violation or some prejudice to self, and
persuade courts to interfere by exercising power of judicial review,
should be resisted. Such interferences, either interim or final, may
hold up public works for years, or delay relief and succour to
thousands and millions and may increase the project cost manifold.
Therefore, a court before interfering in tender or contractual
matters in exercise of power of judicial review, should pose to itself
the following questions :
i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone.
OR
Whether the process adopted or decision made is so
arbitrary and irrational that the court can say : ‘the decision is
such that no responsible authority acting reasonably and in
accordance with relevant law could have reached.’
ii) Whether public interest is affected.
[28] There are also decisions of the Hon’ble Supreme Court holding
that terms and conditions of the tender form shall be strictly adhered by the
tenderers and the though there is some mistake or error committed in the
W.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 14
tender form, the tenderer or the person concerned cannot seek any remedy
to interfere with the said rejection of the said tender application form. It is
relevant to rely upon the following decisions of the Hon’ble
Supreme Court in :
(i) W.B. State Electricity Board V. Patel Engineering Co. reported in
2001 (2) SCC 451, wherein the Hon’ble Supreme Court has observed as
follows:
“23. The mistakes/errors in question, it is stated, are
unintentional and occurred due to the fault of computer termed as
“a repetitive systematic computer typographical transmission
failure”. It is difficult to accept this contention. A mistake may be
unilateral or mutual but it is always unintentional. If it is
intentional it ceases to be a mistake. Here the mistakes may be
unintentional but it was not beyond the control of respondents 1
to 4 to correct the same before submission of the bid. Had they
been vigilant in checking the bid documents before their
submission, the mistakes would have been avoided. Further,
correction of such mistakes after one-and-a-half months of
opening of the bids will also be violative of clauses 24.1, 24.3 and
29.1 of the ITB.”
“31……… It is equally in public interest to adhere to the rules and
conditions subject to which bids are invited…….”
(ii) Rajsekhar Gogoi V. State of Assam, reported in 2001(6) SCC 46
wherein the Hon’ble Supreme Court has held as follows:
“10. This clearly shows that it was imperative for a tenderer to
furnish full information as required so that the same could be
verified by the Deputy Commissioner or any other authorized
person “before settlement of shop to the tenderer” (emphasis
added). In the present case, such an opportunity was clearly
denied to the authorities when respondent 4 had not furnished
the requisite particulars along with her tender.
11. We are therefore, of the opinion that as the tender itself of
respondent 4 was liable to be rejected because of lack of
particulars as stated hereinabove, no further question arises…….”
W.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 15
In the aforesaid decisions of the Hon’ble Supreme Court, it
has been held that it is imperative for the tenderer or a person concerned
to furnish the correct details or full information as required in order to be
verified by the authority concerned. In the case on hand, though they have
furnished the details in Clause 3.2.1 in the tender form, by considering the
said details furnished in the said clause of the tender form, the technical bid
was rightly rejected by the authority concerned and therefore, on same
principle where the Hon’ble Supreme Court in several decisions held that
there shall not be any liberal consideration of terms and conditions of the
tender and the tenderer has to strictly adhere to the instructions as per the
tender conditions and in these circumstances, the contention of the
petitioner is untenable and the same cannot be accepted.
[29] On analysing the aforesaid decisions of the Hon’ble Supreme
Court, we are of the view that considering the facts and circumstance of the
case where the appellants company has made a declaration in the tender
form and based on that its technical bid was rejected and therefore, in the
contractual matters, the respondents cannot conduct the roving enquiry on
the eligibility of the appellants. Though the said declaration may be an error
on the part of the appellants but it cannot be a ground to interfere in the
process of the tender conducted by the respondent authority and further, it
is brought to the notice of this Court that the tender was opened on
24.05.2024 and thereafter the Evaluation Committee had finalised the
tender process and recommended for the approval for issuing the work
order to the successful tenderer and the aforesaid tenderer has not been
W.A. No. 44 of 2024 with
W.A. No. 45 of 2024 Page 16
made a party in the aforesaid proceedings and therefore, we are not
inclined to accept the contention of the appellants to interfere with the
order of the writ court and therefore, the aforesaid writ appeals are liable to
be dismissed.
[30] The writ Court had observed in its finding that under Clause
3.2.1 of the tender document which provided that if the tenderer does not
meet the qualifying criteria specified in Section III Evaluation and
Qualification Criteria, its tender shall be rejected by the employer and may
not subsequently be made responsive by correction of the material
deviation, reservation or omission. Therefore, the learned Single Judge
came to the conclusion that in view of the above provision, information of
declaration made by the petitioners in the aforesaid Form Con-2 Historical
Contract Non-Performance, voluntarily disclosing Non-performed contracts
under Clause 3.2.1 of the tender notification cannot be corrected and the
technical bid of the petitioners cannot substantially be made responsive. So
the learned Single Judge has made it clear that the appellants has
voluntarily made his disclosure in the tender form and therefore the
contention of the appellants was rejected by the writ court.
[31] At this juncture, learned counsel for the appellants made a
submission that in view of the finding of the order passed in the writ
petitions, the appellants company is not considered eligible to participate in
the future tender notification issued by the respondent Highway authority.
Therefore, he seeks for a clarification for permitting the appellants company
to participate in the tender notification in future.
W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 17 [32] In response to the aforesaid submission of the appellants,
learned Additional Advocate General, Manipur, has fairly agreed that the
appellants company can participate in the future tender process, if
otherwise eligible and the same cannot be rejected based on the finding of
the learned Single Judge.
[33] In view of the discussion in the preceding paragraphs and
considering at any angle, in the light of decisions of the Hon’ble Supreme
Court cited (supra). there is no merit in the appeals and therefore, the writ
appeals are liable to be dismissed with the observation that there is no legal
bar for the appellants company to participate in the future tender
notification, if any, issued by the respondent authority, if otherwise eligible.
The writ appeals are dismissed with the above observation.
JUDGE CHIEF JUSTICE Sandeep W.A. No. 44 of 2024 with W.A. No. 45 of 2024 Page 18
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