Coastal Marine Consturction And Engineering Limited vs Union Of India

Heard Mr.Mihir Thakore, learned senior counsel with Ms.P.B. Sheth, learned advocate for the petitioner, Mr.M.K. Shelat, learned advocate for respondent No.3 IIT and Mr.Purohit, learned advocate for respondent No.5 company (impleaded subsequently, as party respondent, by means of amendment pursuant to Court's instruction to implead the interested party).

At the request of the parties and having regard to the subject matter of petition, this petition is heard, at this stage, for final order.

In present petition, the petitioner has prayed, inter alia, that:

"17a) Issue a Writ of Mandamus, or a Writ in the nature of Mandamus, or any other appropriate Writ, Order or Direction, directing the Respondent No.3 to adhere to the CVC guidelines and to lay down qualification criteria (either by way of a Corrigendum or by re­ issuance of the Tender) which are proportionate, and correspond, to the work required to be done under the Tender.

b) Issue a writ of Mandamus or a writ in the nature of Mandamus, or any other writ, order or direction directing Respondent No.3 to modify the pre­ qualification criteria for the subject Tender No. IITGN CNS - 06­KALPSR / 18­19/296 relating to confirmatory geotechnical investigations and testing for Bhadbhut Barrage on Narmada River to bring it in line with the CVC guidelines requiring:

(i) that the bidder should have completed at least three projects of drilling 100 meter borehole in water and submit the contract copy and work completion certificate from that client;

(ii) that the bidder should have completed at least two works / projects of geotechnical investigations in water, costing more than INR 1.5 crores in the last three years;

c) For a writ of Mandamus or a writ in the nature of Mandamus, or any other writ, order or direction directing Respondent No.3 to either re­issue a tender with the modified criteria or to issue a corrigendum to the current Tender modifying the criteria to bring it in the with the CVC guidelines

d) Restrain Respondent No.3 from awarding Tender No. IITGN CNS - 06­KALPSR / 18­19/296 to the L1 bidder or to any other unqualified bidder Pending the hearing and final disposal of this petition,

e) Issue of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction quashing any notice or other communication issued by Respondent no.3 awarding the contract to the L1 bidder or to any other unqualified bidder in case such contract has already been awarded.

f) Grant ad interim reliefs in terms of para d and e above;

(g) Grant such further and other reliefs, as this Hon'ble Court may deem fit and proper in the nature of circumstances of the case"

Before proceeding further, it is necessary to note, at the outset, that while the petitioner has prayed that respondent No.3 may be restrained from awarding tender to L­1 bidder or to other unqualified bidder and though the petitioner is considered and declared ineligible and disqualified, the petitioner has not challenged:

(a) the said decision dated 2.11.2018 (page 185) by respondent No.3 viz. declaring the petitioner disqualified;

(b) the decision (dated 16.11.2018, page 188) declaring respondent No.3 as L­1 bidder and the decision accepting the bid of said L­ 1 bidder (i.e. respondent No.3);

(c) even its own disqualification and non­ acceptance / rejection of its bid is not challenged in present petition;

(d) it is not even the case of the petitioner that according to the terms of the tender, the respondent No.5 and one other bidder could not have been declared eligible and successful bidder and that the decision dated 2.11.2018 of respondent No.3 declaring the said two bidders eligible and qualified is incorrect or unjustified or contrary to the terms of tender and unsustainable. The said decision is also not challenged by the petitioner.

In the course of the hearing, the petitioner restricted the submissions and thereby the scope of the petition to the contention that respondent No.3 should adhere to the CVC Guidelines and it should lay down the qualification criteria in accordance with the CVC Guidelines.

So far as the factual backdrop is concerned, it has emerged from the record and the submissions by learned advocates that:

6.1 Somewhere in September 2018, respondent No.3 Indian Institute of Technology issued Notice Inviting Tender ('NIT' for short) being Notice

No.IITGN/CNS­06­KALPSR/18­19/296 whereby respondent No.3 invited tenders for 'confirmatory geo­technical investigation and testing for Bhadbhut barrage on Narmada river' as per details and specifications mentioned in Annexures­I and II of the said NIT.

6.2 The petitioner is a company which claims experience in offshore and geo­technical investigation and respondent No.3, Indian Institute of Technology, Gandhinagar is assisting respondent No.2 State in its project and respondent No.2 State has, amongst other tasks, also entrusted the work of 'confirmatory geo­ technical investigation and testing (in relation to the local and layout of the barrage and its associated structure) across the River Narmada.

6.3 The said NIT also prescribed general terms and conditions of the tender. One of the conditions (under general terms and conditions), i.e. clause 3 thereof prescribes, inter alia, that:

"3. Facts and E­mail quotations are not acceptable."

6.4 Another condition, clause 17 thereof, prescribed, inter alia, that:

"17. The online tender/bid (i.e. technical offer) will be opened on 22.10.2018 at 10.00 AM at IIT Gandhinagar Premises. The presentation (refer technical evaluation sheet, Annexure­I) is scheduled as per the critical date sheet given above and the bidder/agency/contractor(s) shall have to be remain present at the scheduled date and time without fail for 'Technical presentation'. Non­ presence of any bidder/agency/contractor(s) in the 'Technical Presentation' will disqualify for further stage of evaluation without assigning any reason thereof. The 'Technical Presentation' date and time may be changed and intimated to the tenderers by email well in advance (if any).

a.) to e.) ... ... ... ... ..."

6.5 The said NIT also required certain technical compliance by the bidders which were mentioned in Annexure­I of the NIT under the heading 'technical compliance­sheet'. The NIT also prescribed evaluation criteria under the heading 'technical evaluation sheet'. The criteria relevant for the purpose of present petition is mentioned under clause 11 thereof, which reads thus:

"11. At least TWO works/projects of geotechnical investigation in flowing river, costing more than 40 Lakhs in the last 3 years**"

6.6 In response to the said NIT, present petitioner submitted its bid (its technical proposal) on 30.10.2018.

6.7 Before proceeding further, it may be mentioned at this stage that for the purpose of determining appropriate terms and conditions for the tender, for evaluating the bids received in response to NIT and for other related and connected works respondent No.3 had constituted a purchase committee consisting 6 members. The relevant details are found in paragraph No.3.2 of the affidavit by respondent No.3, which read thus:

"3.2 For the purpose of the subject tender, the answering Respondent constituted a Purchase Committee consisting of six members each of whom are experts in the field. Each of the members has vast experience of technical requirements in such projects. They have experience of handling projects much larger in magnitude. The details of the members are as under:

(1) Shri L.P. Srivastava, Former Additional Director General, Central Public Works Department, Government of India and presently Advisor, Works, IIT, Gandhinagar;

(2) Shri Kapil Deo Narayan, Superintending Engineer, Central Public Works Department, Government of India.

(3) Prof. G.V. Rao, Former Dean and Head of Civil Engineering Department, IIT Delhi and presently National Consultant, Kalpsar Project, Government of Gujarat and Guest Professor, ITT Gandhinagar.

(4) Shri Vivek Kapadia, Chief Engineer and Director, Narmada Water Resources Department, Water Supply and Kalpsar Department, Government of Gujarat.

(5) Shri M. Venkataraman, President, Indian Chapter of International Geosynthetics Society and Guest Professor, IIT Gandhinagar; and

(6) Prof. Amit Prashant, Dean (R&D), IIT Gandhinagar."

6.8 Reverting to the chronology of events, it may be mentioned at this stage that presentation by the bidders was conducted (in accordance with the revised schedule) on 2.11.2018.

6.9 Though, according to the terms and conditions, the bidder was required to remain present during the presentation and though the terms specifically provide that absence at the time of presentation would, in itself, result into disqualification, the petitioner did not remain present during the presentation on 2.11.2018.

6.10 After evaluation of the bids received in response to NIT (including the bid of present petitioner) the committee found that the petitioner did not comply the technical specifications and the petitioner did not score minimum qualification points and that, therefore, the petitioner's bid came to be rejected vide decision taken on 2.11.2018.

6.11 According to the evaluation by respondent No.3 (its committee), the petitioner's bid was found to be ineligible since it did not comply the required technical specifications mentioned under clause (2), clause (5), clause (7) and clause (10).

6.12 The said decision was uploaded on the same day i.e. on 2.11.2018. The said decision is placed on record. It reads thus:

Bid List

S. No

Bid Number

Bidder Name

Opened By

Submitted Date

Status

Reason

1

1354352

Coastal Marine Construction and Engineering Limited

Sujit Shah

31-­Oct-2018 03:08 PM

Rejected

Did not score minimum qualification points

2

137720

Bluefin Marine

Sujit Shah

31­-Oct-2018 10:42 AM

Accepted

Scored above than minimum qualification points

3

137970 0

Sarathy Geotech & Engineering Service Pvt Ltd

Sujit Shah

31-­Oct-2018 11:25 AM

Accepted

Scored above than minimum qualification points

6.13 Thereafter, on 16.11.2018, after completing further procedure including the stage of opening the price bid and further evaluation on that basis, respondent No.3 declared the result viz. that present respondent No.5 emerged as L­1 bidder and respondent No.3 decided to accept the bid of respondent No.5. The result which was uploaded by respondent No.3 on 16.11.2018, reads thus:

Bid List

Sr No

Bid Number

Bidder Name

Opened By

Submitted Date

Quoted Amount / Evaluated Amount in Rs.

Ran k

Status

Reason

1

1377120

Bluefin Marine

Sujit Shah

31-­Oc­-2018 10:42 AM

3,93,67,44.00

L1

Accepte

L1

2

1379700

Sarathy Geotech & Engineeri ng Service Pvt Ltd

Sujit Shah

31­-Oc-2018 11:25 AM

5,76,94,750.0 0

L2

Rejected

L2 Bidder

6.14 From the record, it has emerged that on 16.11.2018 (during Diwali vacation), the petitioner sought permission for circulation of present petition.

6.15 Permission for circulating the petition on 19.11.2018 was granted. Accordingly, the petition (which came to be filed on 16.11.2018) was circulated for hearing on 19.11.2018. During the hearing on 19.11.2018, the learned counsel for the petitioner submitted draft amendment and sought permission to amend the petition by adding paragraph No.4.5A and also to produce a letter dated 6.10.2018 (6.11.2018).

6.16 Having regard to the fact that though the petitioner raised allegations against L1 bidder, the said L1 bidder was not joined as party, the Court passed below quoted order on 19.11.2018:

"Leave to amend petition so as to implead as party respondent Bluefin Marine Ltd., is granted. Amendment to be carried out forthwith. Further leave to amend as per amendment dated 15.11.2018 is granted. Amendment to be carried out forthwith. Notice returnable on 26.11.2018."

6.17 Paragraph No.4.5A which did not form part of the memo of petition but which came to be added subsequently (by means of amendment) reads thus:

"A Kindly permit to add paragraph 4.5A after paragraph 4.5 and nefore paragraph 4.6 as under:­

"Petitioner No.1 submitted its tender proposal on time. Respondent No.3 informed to Petitioner No.1 on or around 2 November, 2018 that Petitioner No.1 has been disqualified. However no reasons are assigned for such disqualification. A copy of the said communication and response of the Petitioners are annexed hereto and marked as Annexure H.

B Kindly permit the Petitioners to produce letter dated 6 October, 2018 which is actually 6 November, 2018 as Annexure II and permit to amend the index suitably by adding Annexure H at Sr. No.10 & 11. Further permit to add following line after words "for bidders in the Tender ..." and words before "It asked..."."

6.18 On returnable date, it was submitted that respondent Nos.3 to 5 had not entered appearance. Therefore, the Court passed below quoted order on 26.11.2018:

"Despite service of Notice, no one has entered appearance. Only with a view to granting one more opportunity to the respondents, hearing is adjourned with clarification that on next date if the respondents do not enter appearance and do not file reply, then the Court may pass appropriate order. S.O. to 28.11.2018."

6.19 On 28.11.2018 and also on 30.11.2018, it was submitted that the respondents had not entered appearance. Therefore, the Court passed below quoted order on 30.11.2018:

"After hearing learned advocate for the petitioner this Court passed below quoted order on 19.11.2018:

"Leave to amend petition so as to implead as party respondent Bluefin Marine Ltd., is granted. Amendment to be carried out forthwith. Further leave to amend as per amendment dated 15.11.2018 is granted. Amendment to be carried out forthwith. Notice returnable on 26.11.2018."

Under the said order the notice to the respondent was made returnable on 26.11.2018.

This petition was listed on 26.11.2018 however no one appeared for the respondent Nos.1, 3 and 5.

Ultimately the Court adjourned the proceedings with a view to granting opportunity to the respondent Nos. 1,3 and 5 to enter appearance and to oppose the petition and/ or request for interim relief, as prayed for if they so desire.

Accordingly the petition came to be adjourned to 28.11.2018.

On 28.11.2018 also the respondent Nos. 1, 3 and 5 did not appeared. No one filed reply opposing the petition and/ or request for interim relief.

We, however, granted further opportunity to the respondent nos. 1, 3 and 5 to appear and file reply/ oppose the petition.

Accordingly the petition came to be adjourned to today. i.e. 30.11.2018.

Today also no one has entered appearance until 4.45 p.m.

The matter is called out twice. We have not received any reply nor any request for adjournment.

Under the circumstances, we pass following order:

Until next date the respondent shall maintain status­quo which obtains as of today i.e. on 30.11.2018 at 4.45 p.m.

S.O. to 6.12.2018.. Direct service is permitted."

6.20 On 6.12.2018, the respondent No.3 raised grievance that actually the process was not served to / received by respondent No.3 therefore appearance and reply could not be entered. On the other hand, the petitioner submitted that the cause list prepared by the office did not reflect such position. Considering the grievance by respondent No.3, the Court passed below quoted order dated 6.12.2018:

"Mr.Shelat, learned advocate for respondent No.3 has filed Affidavit clarifying that until 5.12.2018 the process issued by the Court was never served to / received by respondent No.3. The Cause List did not reflect this position. Therefore, we passed the order dated 30.11.2018.

Having regard to the Affidavit by respondent No.3, we direct the office to list this petition on 11.12.2018. In the meanwhile, respondent No.3 may file appropriate Affidavit in response tot he petition.

Ad­interim relief granted earlier to continue till then."

6.21 Thereafter, respondent No.3 filed reply affidavit dated 10.12.2018 and respondent No.5 filed affidavit dated 13.12.2018. The petitioner filed affidavit­in­rejoinder as well as further affidavit­in­rejoinder, both dated 14.12.2018.

In this backdrop, the learned senior counsel for the petitioner submitted that while fixing the qualification criteria, respondent No.3 should have adhered to the CVC guidelines and that the qualification criteria which are not in consonance with the CVC guidelines cannot be sustained and should be set aside. It is claimed that though the said guidelines are not mandatory, respondent No.3 could not have completely disregarded the said guidelines and the qualification criteria should not have been fixed arbitrarily without having regard to the said guidelines. In this context, the learned counsel for the petitioner placed reliance on clause 5(A)(i) and (ii) of the guidelines. The learned senior counsel for the petitioner also placed emphasis on the expression 'similar works' and sub­clause (iii) of clause (A) of para 5 of said guidelines which provide, inter alia, that 'definition of 'similar work' should be clearly defined'. He submitted that the NIT did not define the expression similar work and thereby respondent No.3 did not comply the CVC guidelines and the terms and conditions prescribed by respondent No.3 in the NIT are contrary to the CVC guidelines. By invoking sub­clause (i) and sub­clause (ii)(a)(b) and (c) of para 5, the learned senior counsel for the petitioner submitted that in light of the queries from vendors / agencies, respondent No.3 had issued clarification / addendum on 17.10.2018 whereby respondent No.3, in response to the request to clarify the estimated value of work, had clarified that the estimated value of the work is Rs.3 crore, however, respondent No.3, in the NIT, fixed the qualification criterion (technical compliance), at Rs.40 lakh which is substantially less than the recommendation by the guidelines of CVC. According to the petitioner the said provision in the NIT brings out that respondent No.3 arbitrarily exercised the discretion. The learned senior counsel for the petitioner relied on the decision in case of Haffkine Bio­ Pharmaceutical Corporation Limited, A Government of Maharashtra Undertaking through Manager vs. Nirlac Chemicals through its Manager and others [(2018) 12 SCC 790]. He also relied on the decision by High Court of Himachal Pradesh in case of M/s. Gorsi Construction Pvt. Ltd. vs. Union of India [2011 SCC OnLine HP 2451]. Any other contention is not raised.

Per contra, respondent No.3 has raised below mentioned preliminary objection against the maintainability of the petition:

"(A) I submit that the Petitioner submitted its bid on 30.10.2018. I state that prior to the submission of the bid, the petitioner had not raised any objection nor sought any clarification in relation to pre­ qualification criteria, which is impugned in the present petition. I submit that after having expressly accepted the tender conditions, having participated in the bid process, and having been found to be ineligible, it is not competent for the Petitioner to assail the tender conditions. The present writ petition under Article 226 of the Constitution may, therefore, not be entertained.

(B) I submit that the Petitioner is himself not meeting with the pre­qualification criteria and has failed to secure the minimum qualification marks. The Petitioner is therefore an ineligible bidder. The present writ petition at the instance of the Petitioner who is himself not meeting with the tender specification, may therefore not be entertained.

(C) I submit that the Petitioner is not a fit person to be entrusted the writ of this Honble Court. The Petitioner is guilty of supressio veri in as much as the Petitioner is guil the Petitioner has not disclosed the true and complete facts while approaching this Hon'ble Court. The list of dates as well as the memo of petition consciously does not make reference to the material fact that the bid of the Petitioner was found to be non­ compliant / ineligible and accordingly, was rejected as such. The said fact was duly notified on the website of E­procurement System Government of India on 02.11.2018. It is submitted that the writ petition was filed on 16.11.2018. However, the said fact has not been set out in the narration of the list of dates as well as the memo of the petition as filed. Furthermore, the Petitioner has not disclosed the complete facts regarding the chronology of dates and events before this Hon'ble Court. It is submitted that submission of incomplete list of dates in itself disentitles the Petitioner from being considered for grant of any equitable relief under Article 226 of the Constitution of India.

(D) I submit that the Petitioner has misled this Hon'ble Court and persuaded this Hon'ble Court to pass an ex­parte ad­interim order in its favour. I state that despite the fact that the notice issued by this Hon'ble Court was not served upon the answering Respondent, this Hon ble Court was made to believe th at the service was effected upon the answering Respondent. This Hon'ble Court on the said premise and assumption and more particularly since no appearance was filed despite service of notice (as assumed by the Hon'ble Court) ordered that status quo should be maintained. I submit that the Petitioner has, therefore, misled this Hon'ble Court into passing the ex­parte ad­interim order. This conduct of the Petitioner is in itself sufficient to disentitle the Petitioner from being considered for grant of any equitable relief under Article 226 of the Constitution of India.

(E) I submit that the Petitioner has sought to mislead this Honourable Court by seeking to suggest that the tender in question is in relation to Civil and Electrical Works. In fact that the work is the nature of testing on site and in laboratory. It is therefore not a civil­construction contract as sought to be asserted by the Petitioner.

(F) I submit the guidelines issued by the Vigilance Commission do not create any enforceable right in favour of the Petitioner. The said guidelines do not impinge upon the independence of the competent authority to determine the terms and conditions on which the tenders are to be invited. In fact, the Vigilance Commission by a subsequent clarification has provided that the guidelines referred to were merely illustrative and organizations were competent to suitably modify the guidelines. In absence of any enforceable right, the present writ petition under Article 226 of the Constitution of India is not maintainable in law.

(G) It is submitted that the Petitioner has no fundamental right to determine the terms and conditions on which the tenders are to be invited. The writ petition seeking to impose the terms and conditions as desired by the Petitioner is, therefore, not maintainable in law."

Beside the said contentions, the respondent No.3 has averred and asserted that:

"3.4 I state that the Petitioner herein submitted its bid online on the Central E­procurement portal. I state that in terms thereof, the Petitioner had declared that it did not possess the technical specifications as required under Clause (2), (5), (7) and (10).

3.5 I state that after the bids were uploaded, the Answering Respondent received by email some documents from the Petitioner seeking to assert that they now possessed the qualification criterion. I state that no documents could be accepted by email after submission of the bid and accordingly the same were not accepted.

3.7 I state that three bids were received by the answering Respondent. I state that the Petitioner was found to be ineligible since the Petitioner's bid did not comply with technical specifications as required under Clause (2), (5), (7) and (10). Accordingly, on 02.11.2018, the said fact was uploaded on the portal and was within the knowledge of the Petitioner. A copy of the document evidencing the said fact is annexed herewith and marked as Annexure R­3/1.

3.8 I state that of the two eligible bidders, the price bid was opened and in terms thereof, the Respondent No.5 herein was found to be the L1 bidder. I state that the answering Respondent thereafter invited the Respondent pursuant thereto the Respondent N best price. I state that the said offer is pending consideration the answering Respondent. A copy appearing on the portal is annexed herewith and marked as Annexure R­3/2 No.5 for price negotiations and o.5 offered their on before the Committee constituted by of the status regarding the eligible bids as

3.9 I state that the process adopted by the Answering Respondent is fair and just and is with the object of ensuring fair competition. It does not impinge or compromise the quality standards in any manner.

With reference to Paragraph 4.5, I state that in response to the communication dated 31st October, 2018, the Answering Respondent by its email of the said date replied to the said communication and also uploaded the same on the website. The assertion made by the Petitioner re receiving any response is therefore Furthermore the communication also disclose that 31/10/2018, the Petitioner had not grievanc criterion. garding not false. contents of the said even on raised any e in relation to the impugned qualification criterion.

With reference to Paragraph 4.7, I state that assertions made therein are ex facie false, vague and lacking in material particulars. It is submitted that the allegation that the tender conditions are tailor made to suit a particular bidder is clearly false. I further state that the scope of the work does not involve any construction work, the assertion regarding the safety standard/s of construction being compromised are therefore clearly false and misleading."

Respondent No.3 has also averred and asserted that:

"9. With reference to Paragraph 4.3, I state that the contents thereof other than the quoted provisions of the tender are denied and disputed. I deny that criteria prescribed by the Answering Respondent fall foul of the CVC Guidelines as alleged or for the reasons alleged. I state that the nature of the work under the contract is concerning investigation by testing. In plain terms the agency is require to drill hole in the river bed; at every 1 to 2 metres the agency is required to undertake testing and sampling. The samples so procured are thereafter to be tested in the laboratory. Having regard to the of the work, the emphasis is on the quality of and is guided by the application of technology. It is neither a simplicitor boring work nor a civil work in relation to which the para­metres of quantum of contract value are generally applied as illustrated in the Guideline in reference. It is incorrect for the Petitioner to suggest that the work is a Civil Work as is sought to be asserted directly as well as indirectly at various places in the memo of the Petition. 10. With reference to Paragraph 4.4, I state that the same refers to the technical bid of the Petitioner and the Answering Respondent craves leave to refer to the same at the time of hearing of the Petition.

With reference to Paragraph 6, I state that the qualification criterions were fixed taking into consideration all relevant factors. The Petitioner himself does not meet with the criteria so prescribed. It is denied that in view of the impugned criteria unqualified bidders would enter the fray; that public safety would be endangered and that execution would be adversely affected."

8.1 In furtherance of said contentions Mr.Shelat, learned counsel for respondent No.3 also submitted that entire process conducted by respondent No.3 is fair and transparent. He also submitted that the terms and conditions as well as the qualification criterion are fair and ensure competence and do not compromise either fairness or transparency or competence. Mr.Shelat, learned counsel also emphasised that according to the petitioner, even though the monetary limit (with regard to the completed work by the bidder) is less than the limit prescribed by CVC, however, the petitioner does not fulfil even the said criterion which is allegedly at lower scale. Mr.Shelat, learned counsel for respondent No.3 also submitted that the CVC guidelines are not to be applied strictly and they are only directory which can be appropriately modified according to the requirement for specialised jobs and that aspect is clarified by the CVC itself. Mr.Shelat, learned counsel relied on subsequent memorandum issued by CVC on 7.5.2004. He further submitted that the petitioner accepted all terms and conditions prescribed under the NIT and that, therefore, the petitioner cannot challenge the terms and conditions prescribed in the NIT. He submitted that having accepted the terms and conditions, the petitioner submitted its bid and participated in the tender process and after having thus participated the process, it has no locus or right to challenge the terms and conditions in the NIT. He also submitted that since the petitioner itself is ineligible and not qualified, it has no locus to challenge the tender conditions.

8.2 The respondent No.5 has adopted the contentions and submissions by respondent No.3. Moreover, it has relied on the objections raised in its affidavit. The respondent No.5 also submitted that the petitioner was aware about the CVC guidelines and it was also aware about the terms and conditions in the NIT since 28.9.2018 and the said knowledge the petitioner submitted its bid, with knowledge about all terms of the tender, on 30.10.2018. During the said period (between 28.9.2018 to 30.10.2018), the petitioner never challenged the terms and conditions. Even after having submitted the tender on 30.10.2018, the petitioner did not challenge the terms and conditions. It is further claimed that the decision that the petitioner is found ineligible and disqualified and is rejected who was declared on 2.11.2018, however, at that stage also, the petitioner did not challenge the terms and conditions. On 16.11.2018, respondent No.5 came to be declared as L­1 and at that stage, the petitioner filed present petition on 16.11.2018 without disclosing the fact that it has been declared ineligible and disqualified. Under the circumstances, the petition is also hit by vice of delay and laches and consequently, the petitioner is not entitled for any relief/s.

Respondent No.5 has also opposed the petition. Respondent No.5 has also raised preliminary objection against maintainability of the petition and submitted that:

"5. At the outset, the petition is required to be rejected on the ground of suppression of material facts. The petitioner has not come with clean hands before this Hon'ble Court. It is submitted that petitioner has not stated in the petition that the petitioner no.1 itself was disqualified in the technical bid and misled the Hon'ble Court and therefore, only on the ground of suppresio veri and suggestio falsi, this petition is required to be rejected.

It is submitted that the petition is also required to be rejected on the ground of delay, latches and acquiescence. The petitioner having expressly accepted the tender conditions and having participated in the bidding process could not have challenged the criteria and conditions of the tender at a later stage, after being declared technically disqualified for the tender. The petitioner was declared disqualified in the technical bid on 02nd November, 2018. The petitioner sat silent til the tender process was over and present respondent No.5 was declared as the L1 bidder in the tender and has chosen not to file petition till 15th November, 2018. Thus the petitioner acquiesced with the position obtained and at a later stage, as an after thought, filed the present petition on 16th November, 2018. Thus on the ground of delay and acquiescence, the present petition deserves rejection at the hands of this Hon'ble Court.

Thirdly, the petition is required to be rejected on the ground of locus. The petitioner has no locus to file the present petition challenging qualification of respondent No.5 as successful bidder. It is submitted that the petitioner has not challenged its disqualification in the technical bid but what has been challenged in this petition is the eligibility criterion fixed by the respondent no.3 authority as well as the qualification of the present respondent as successful bidder. The petitioner was very well aware of the fact that rules of game cannot be challenged once the game has started. The petitioner, having accepted the tender terms and conditions and having participated in the tender and after its technical disqualification, cannot challenge the tender terms and conditions and criteria and therefore, the petitioner has also challenged the qualification of the present respondent. The petitioner has no locus to challenge the qualification of the answering respondent. To challenge the qualification of the present respondent, the petitioner would have to satisfy this Hon'ble Court regarding it being qualified for the tender in question. However, going through the petitioner, the petitioner, in no way, has challenged its disqualification by respondent No.3 authority nor has it prayed to declare it qualified for the tender in question. Therefore also, petitioner having no locus to file the present petition, petition deserves to be rejected."

8.3 The learned counsel for respondent No.3 and respondent No.5 also opposed the petition on the ground that the petition is hit by vice of suppressio veri and suggestio falsi. According to the respondents, the petitioner has not approached the Court with clean hands and the petitioner did not disclose correct and complete facts and therefore also the petition should not be entertained and any relief/s should not be granted.

8.4 In his rejoinder, Mr.Thakore, learned senior counsel submitted that the guidelines prescribed by CVC are sacrosanct and that since the petitioner challenges non­compliance of CVC guidelines, it is irrelevant as to whether the petitioner is qualified or not. He denied the allegation about suppression or that the correct facts are not mentioned by the petitioner.

We have considered rival submissions and the material available on record.

Before proceeding further it is necessary to recall and note that -

(a) the petitioner's technical bid is declared disqualified at the stage of evaluation of technical bids;

(b) the said decision is not challenged by the petitioner;

(c) the petitioner submitted its bid and participated in the tender process. Thereby, the petitioner accepted all conditions of the tender. It has not even challenged respondent's decision with regard to its technical bid;

(d) before or while submitting its bid (and thereby participating in the tender process) or even after submitting the bid and until almost 14 days after the respondent declared the petitioner as disqualified and ineligible, the petitioner did not raise any objection on any ground with regard to any of the terms and conditions of the tender and it participated in the tender process without raising any objection;

(e) the limited ground on which the petitioner has presented and prosecuted the petition is that the qualification criterion prescribed NIT is not in consonance with CVC guidelines and the respondent has not adhered with the said guidelines and thereby the respondent acted arbitrarily;

(f) in the course of hearing, the respondents' action and decision are not challenged on ground of mala fides.

Since the petitioner has preferred the petition on strength of particular guidelines issued (on 17.12.2002) by CVC, it would be appropriate to keep in focus the said guidelines. The relevant clause / provision on which the petitioner has placed reliance, reads thus:

"5. The following points must be kept in view while fixing the eligibility criteria:­

A) For Civil/Electrical Works

i) Average Annual financial turnover during the last 3 years, ending 31st March of the previous financial year, should be at least 30% of the estimated cost.

ii) Experience of having successfully completed similar works during last 7 years ending last day of month previous to the one in which applications are invited should be either of the following:­

a. Three similar completed works costing not less than the amount equal to 40% of the estimated cost.

Or

b. Two similar completed works costing not less than the amount equal to 50% of the estimated cost.

Or

c. One similar completed work costing not less than the amount equal to 80% of the estimated cost.

iii) Definition of "similar work" should be clearly defined."

11.1 The petitioner relied on the Memorandum dated 17.12.2002. However the respondent have brought on record the fact that there has been modification and further clarification by CVC and it is claimed that in May, 2004 CVC issued another Memorandum dated 7.5.2004 and thereby the CVC clarified that the agency which invites tenders may suitably modify guidelines having regard to the requirements of specialized jobs/works.

11.2 In view of the fact that CVC has undisputedly issued another / subsequent memorandum dated 7.5.2004 in furtherance of and for clarification to above quoted guidelines (issued on 17.12.2002), it would be appropriate to also keep in focus the clarification issued by CVC vide memorandum dated 7.5.2004, which reads thus:

"OFFICE MEMORANDUM

Subject:­ Pre­qualification Criteria (PQ).

Guidelines were prescribed in this office OM of even number dated 17/12/2002, on the above­cited subject to ensure that the pre­qualification criteria specified in the tender document should neither be made very stringent nor very lax to restrict / facilitate the entry of bidders. It is clarified that the guidelines issued are illustrative and the organizations may suitably modify these guidelines for specialized jobs/works, if considered necessary. However, it should be ensured that the PQ criteria are exhaustive, yet specific and there is fair competition. It should also be ensured that the PQ criteria is clearly stipulated in unambiguous terms in the bid documents."

11.3 On conjoint reading of the said 2 Memoranda it becomes clear that the guidelines prescribed by CVC under Para­5(A) and 5(B) of the Memorandum dated 17.12.2002 would not be, applicable to the tender issued by respondent no.3 and/ or the work for which the tender came to be issued.

So as to support the allegation that while determining the tender conditions/qualification criteria, the respondent No.3 did not comply the CVC guidelines the petitioner relied on above quoted CVC guidelines in the office memorandum dated 17/12/2002. Learned Senior Counsel for the petitioner, during the course of hearing, placed emphasis on two clauses from the said memorandum dated 17.12.2002 viz. clause 5(A)(i)(ii) (a)(b) (c) & (iii) (which are quoted hereinabove).

12.1 In this context, respondent no.3 has offered below mentioned explanation through its affidavit.

"2(F) I submit the guidelines issued by the Vigilance Commission do not create any enforceable right in favour of the Petitioner. The said guidelines do not impinge upon the independence of the competent authority to determine the terms and conditions on which the tenders are to be invited. In fact, the Vigilance Commission by a subsequent clarification has provided that the guidelines referred to were merely illustrative and organizations were competent to suitably modify the guidelines. In absence of any enforceable right, the present writ petition under Article 226 of the Constitution of India is not maintainable in law."...... 9. With reference to Paragraph 4.3, I state that the contents thereof other than the quoted provisions of the tender are denied and disputed. I deny that criteria prescribed by the Answering Respondent fall foul of the CVC Guidelines as alleged or for the reasons alleged. I state that the nature of the work under the contract is concerning investigation by testing. In plain terms the agency is require to drill hole in the river bed; at every 1 to 2 meters the agency is required to undertake testing and sampling. The samples so procured are thereafter to be tested in the laboratory. Having regard to the nature of the work, the emphasis is on the quality of testing and is guided by the application of technology. It is neither a simplicitor boring work nor a civil work in relation to which the para­meters of quantum of contract value are generally applied as illustrated in the Guideline in reference. It is incorrect for the Petitioner to suggest that the work is a Civil Work as is sought to be asserted directly as well as indirectly at various places in the memo of the Petition."

12.2 When the office memoranda dated 17/12/2002 and 07/05/2004 and above quoted details are conjointly read, it becomes clear that CVC subsequently clarified that the guidelines are illustrative and the organizations can suitably modify the guidelines for specialized jobs/works wherever considered necessary.

12.3 Thus, appropriate and requisite modification depending on the nature of specialized job/works is, indisputably, permissible.

The question which would arise is that whether the alleged difference vitiates the tender conditions/qualification criteria fixed by respondent no.3 and whether it invalidates the tender process or said variance is permissible and it does not amount to invalidation of the tender process.

In this context, it is also relevant to take into account that the para­5(A) of the memorandum dated 17.12.2002 (on which the petitioner has placed heavy reliance) is applicable to "Civil/Electrical works" and para 5(B) is applicable in case of "Store/Purchase Contracts".

14.1 It is not in dispute that the nature and scope of the work for which NIT came to be issued is essentially and substantially related to testing and investigation and it does not involve electrical or civil work or even work related to contract for store/purchase.

14.2 In absence of specific instruction (or further clarification by CVC) the guidelines prescribed by CVC in para­5(A) (or para­5(B) of said memorandum) would not be applicable in respect of the jobs/works such as the type of the job which is subject matter of tender in question, namely: "CONFIRMATORY GEOTECHNICAL INVESTIGATIONS AND TESTING FOR BARRAGE ON NARMADA RIVER".

14.3 Therefore, the petitioner's attempt to invoke clause 5(A) (and/or clause 5(B) of said memorandum) so as to assail the technical qualification prescribed by respondent no.3 is misconceived and it cannot be sustained because the said clause are not attracted and applicable in respect of subject matter of tender issued by respondent no.3.

As mentioned earlier, there is another perspective to this issue namely, subsequent memorandum dated 07/05/2004.

15.1 Therefore, the qualification criteria prescribed by the respondent no.3 has to be examined in light of the conjoint reading of Memorandum dated 17.12.2002 and 7.5.2004.

15.2 By means of said memorandum, it is clarified that the said guidelines are illustrative and modification for specialized jobs is permissible.

15.3 Thus, even if it is assumed that the guidelines prescribed by CVC under clause 5(A) and/or 5(B) of memorandum dated 17.12.2002 are applicable in present case then also it cannot be ignored that in view of subsequent clarification dated 07/05/2004, it was permissible for respondent no.3 to suitable modify the guidelines in light of the specialized jobs required by respondent no.3 (for which the NIT came to be issued).

15.4 Therefore, it cannot be said that the qualification criteria is contrary to and against the CVC guidelines. The tender / tender condition, therefore, cannot be quashed and the tender process cannot be invalidated.

15.5 Under the circumstances, the contention / objection raised on the strength of para­5(A) (or even para­5B) of CVC guidelines cannot be sustained. The said contention deserves to be rejected. Hence, the same is rejected.

Learned Senior Counsel for the petitioner then submitted that according to para­5(A)(iii), it was necessary for respondent no.3 to clearly define the work 'similar work'. However, the tender document did not define the similar work. Even this contention is not justified or sustainable.

16.1 The answer lies in the above mentioned Entry No.­11 from Technical Compliance Sheet read with the subject/scope of job mentioned in NIT.

16.2 Respondent No.3 clearly and specifically described the nature and scope of the work in the tender document. Relevant clause / entry No.11 reads thus:

"CONFIRMATORY GEOTECHNICAL INVESTIGATIONS AND TESTING FOR BHADBHUT BARRAGE ON NARMADA RIVER"

16.3 Thus, the NIT clarified that the successful bidder will have to undertake and carry out "geotechnical investigations and testing" and that said work will have to be carried out for "barrage on Narmada river".

16.4 The above quoted Entry­11 in "the Technical Compliance Sheet" prescribed the qualification criteria as well as the type / extent of experience required i.e. the type and extent of experience which the bidder should possess.

16.5 The express condition related to nature and scope of work and the "similar work" and said clause 11 categorically prescribe the extent of experience in clear terms viz. that bidder should have executed "at least two works/projects of geotechnical investigation for flowing river".

16.6 The said specification is abundantly clear and it fulfills the CVC guidelines. The description in Column­11 of Technical Compliance Sheet, by any standard, cannot be termed as vague or unclear or non­specific. Further, it also becomes clear that similar work is clearly, specifically and expressly mentioned and defined by the respondent.

16.7 When the said requirement is read in conjunction with the nature and scope of the contract work it emerges that the CVC instruction / guideline is satisfied.

16.8 Foregoing discussion brings out that the petitioner's such contentions are not sustainable.

16.9 On such conjoint reading it becomes clear that the said contention is without merits and substance and deserves to be rejected and it is hereby rejected.

16.10 Actually, upon being confronted with the said position, learned Senior Counsel for the petitioner fairly submitted that the petitioner does not press the said contention.

The petitioner then turned to the percentage mentioned by CVC in Para­5 (A)(i)(ii) and submitted that the limit specified by the respondent No.3 in the tender is less than what is prescribed by CVC and that, therefore, tender should be quashed.

17.1 According to the petitioner during the meeting for technical presentation, the respondent clarified that the estimated value is Rs.3 crore and that, therefore, in light of para 5A(i)(ii)(a)(b)(c) the qualifying criteria should have been Rs.1.20 crores or Rs.1.50 crores or Rs.2.40 crores whereas the respondent fixed the qualifying criteria (value of project) at Rs.40 lakhs. For the said purpose the petitioner relied on Serial No.11 of Technical Compliance Sheet which reads thus:

Sr. No.

Specification

Compliance (Yes/No)

Deviations (if any)

11

At least TWO works/projects of geotechnical investigation in flowing river, costing more than 40 Lakhs in the last three years.

17.2 From said details it would emerge that qualifying criteria prescribed in the tender document is lower than the limit recommended by CVC.

17.3 On this count it is pertinent to note that the said criteria are prescribed in respect of Civil and Electrical work and cannot be applied to Geo­Technical Investigation in flowing river.

17.4 In this view of the matter it emerges that any prescribed guideline or prescribed criterion for mentioning qualifying criteria or minimum value of executed work - which can be fairly applied to the work required by respondent Nos.2 and 3 is not available and it cannot be said that the respondent no.3 has, in any manner violated in prescribed guidelines or criteria which provide for qualifying criterion or minimum rate/ value of the work/ project which the bidder should have executed in respect of the work which present respondent required.

17.5 In this view of the matter, the only guideline which can be taken in present case is the remark by the CVC that the brief qualification criteria should not be very stringent or very lax which would restrict or facilitate the entry of bidders.

17.6 When the petitioner claims that the criteria provided for by the respondent No.3 is not in consonance with the CVC guidelines, it is necessary to examine the said contention in light of foregoing discussion and more particularly in light of the fact that the work/ project for which the bid are invited by means of impugned NIT, are of very technical nature and for specialized job and undisputedly there are very few bidders who executed the type of work required by respondent no.3. Having regard to said aspect it cannot be said that the criteria fixed by the respondent is arbitrary or very lax.

17.7 It seems that the petitioner wants to suggest that it should be more stringent.

17.8 However it is pertinent to note that the petitioner overlooks that the petitioner could not fulfill even the prescribed criteria and the petitioner itself does not meet with the criteria determined by the respondent no.3, though it is lax according to the petitioner.

17.9 The fact that despite such allegedly lax criteria, only few bidders came forward and the petitioner itself did not fulfill the criteria, it could be anybody's guess what would have been the result if the respondent no.3 had prescribed more stringent criteria. In that event, in all probability, the respondent no.3 would have been left with no bidder.

17.10 It would also not be out of place to take into account that the said criteria came to be determined by the Committee comprising qualified and experienced persons. The members of the Committee possess vast experience and when they determined certain criteria including the value of the project which the bidder must have executed (so as to determine the bidders expertise and competence) then they had drawn their experience and they would have done so on the basis of their experience. Any allegation of bias or malafide against the Committee as a whole or against any member of the Committee is not raised by the petitioner. Even in respect of the decision of the Committee any malafide or bias are not alleged.

In this view of the matter, the petitioner has failed to establish any defect or any irregularity much less non­application of mind or arbitrariness with regard to the criteria determined by the respondent No.3 for performance of qualification or/ pre­qualification of the bidders.

One of the points on which the maintainability of the petition is opposed is that the petitioner is guilty of suppression of relevant facts.

19.1 The respondents have emphasized that while invoking the CVC guidelines dated 17/12/2002 the petitioner did not bring on record the subsequent guidelines dated 07/05/2004 and did not disclose in the petition that further/subsequent clarification is issued by the CVC in May, 2004. Said non­discloser, according to the respondents, amount to suppression.

19.2 It is pertinent to note that respondent Nos.3 and 5 vehemently submitted (and they have also expressly raised specific contention / objection in reply affidavit) that the petitioner did not place on record the subsequent clarification issued by CVC (in respect of memorandum dated 17.12.2002) vide its memorandum dated 7.5.2004 and the petitioner did not place on record the said memorandum. The said respondents have, thereby, alleged suppression of material fact and relevant material. On this count, it is relevant to mention that the petitioner could not and did not refute the said submission and assertion by respondent Nos.3 and

The petitioner also could not demonstrate from the material on record, that it has placed on record the subsequent memorandum dated 7.5.2004 and has also mentioned in the petition, the fact that CVC (in the memorandum dated 7.5.2004) issued clarification with reference to the memorandum dated 17.12.2002. The petitioner, thereby, failed to demonstrate that the respondents' claim and assertion about suppression are incorrect. The reference about CVC guidelines / memorandum dated 17.12.2002 is found in para 4.1 of the petition, however, in the said para 4.1 and sub­para (b) of para 4.3 or para 4.5 or paras 8 to 11 and para 13 (where the petitioner has made reference of CVC guidelines) the petitioner has not mentioned anything about subsequent clarification issued CVC guidelines by means of subsequent memorandum dated 7.5.2004.

Another instance which the said respondents emphasised to support the submission about suppression is related to the decision of respondent no.3 which came to be declared on 02/11/2018.

20.1 The respondents have placed on record the documents which reflect that on 02/11/2018, the technical bid of the petitioner came to be rejected on the ground that the petitioner did not fulfill prescribed technical qualification. Consequently, the petitioner and its technical bid came to be disqualified and the said decision was taken as well as notified on 2.11.2018.

20.2 Despite the fact that the memo of the petition came to be filed on 16/11/2018, the petitioner did not mention the said fact in the memo of the petition.

20.3 The petitioner tried to bring out / mention the said fact on record by way of amendment which was submitted to the Court on 19/11/2018 and leave to amend the petition was sought for, on 19/11/2018.

20.4 According to the respondents, when the petitioner filed the petition on 16/11/2018, the fact about the event which occurred on 02/11/2018 should have been disclosed. However, though the petition came to be filed on 16.11.2018, the event which took place on 2.11.2018 was not mentioned in the petition and to wriggle out from the allegation or charge of suppression amendment was sought for on 19.11.2018 and the petition came to be amended in pursuance of the permission vide order of 19.11.2018.

Similar allegation is made with regard to the event and development which took place on 16/11/2018.

At this stage it is relevant to take into account the details submitted by the petitioner along with its bid (which the petitioner submitted on 30.11.2018), more particularly with regard to the compliance of "Technical Compliance Sheet".

22.1 On strength of said details the respondent demonstrated one more instance of non­compliance of tender conditions.

22.2 The document which contains the petitioner's response / declaration with regard to the aspect mentioned in the Technical Compliance Sheet is found at page­115. The said statement/ declaration by the petitioner reads thus:

Technical Compliance Sheet:

S. No.

Specification

Compliance (Yes/No)

Deviations (if any)

1

Capability of doing work as per specifications mentioned in AnnexureII

Yes

2

Availability of at least Two Jack­up barges to simultaneously work in flowing river of around 5 m depth with tidal variation of about 1.5 m.*

No.

1 No. Jackup Barge

3

Setup for drilling of 150 mm bore in soil and rock (method may vary with soil or rock type)*

Yes

4

SPT setup with automatic free fall hammering system, i.e., weight (63.5 kg) should automatically get released after reaching a height of 76 cm.

Yes

5

Down­The­Hole (DTH) Hammer for conducting SPT tests below 40 m depth.*

No

Top driven auto trip hammer system can be deployed

6

Shelby tubes of 100 mm internal diameter for UDS collection for up to borehole depth 40 m and Shelby Tubes of 70 mm internal diameter for UDS collection at deeper levels.

Yes

7

Use of Mazier sampler as per need (to minimize sample slippage)*

No

Push sampler will be deploye

8

Capacity to perform field permeability test inside boreholes within the flowing river, at a depth of about 15­ 40 m.

Yes

9

Capacity of conducting CU and CD triaxial test with back pressure*

Yes

10

Accreditation of laboratory by NABL or equivalent agency. (Attach certificate)

No

Accreditation process in progress. Otherwise, NABL accredited lab will be engaged for testing

11

At least TWO works/projects of geotechnical investigation in flowing river, costing more than 40 Lakhs in the last 3 years**

Yes

12

Competent to conduct cross­hole tests up to a depth of 60 m and that below water table.*

Yes

22.3 Above quoted technical compliance sheet was submitted / filed by the petitioner along with its bid.

22.4 A glance at the petitioner's response with regard to the Technical Compliance Sheet gives out that even according to petitioner's own declaration it did not fulfill the condition/ criteria­requirement at Sr. No.2, Sr. No.5, Sr. No.7 and Sr. No.10 under technical bid.

22.5 The petitioner itself admitted / declared that it does not meet with and does not comply the requirements (technical compliance) mentioned at Sr.Nos.2, 5, 7 and 10 of the technical compliance sheet which form part of the NIT.

22.6 Consequently having regard to said details and declaration the respondent declared petitioner / petitioner's technical bid as disqualified at the stage of evaluation of technical bid stage.

22.7 In this context, it is relevant to note that according to the petitioner would however submit that subsequently on 31.10.2018 it had, via e­ mail, submitted revised response and declared that it now fulfills the criteria mentioned in the Technical Compliance Sheet.

22.8 So as to support the said submission the petitioner relied on the document at Page­162 which reads thus:

Technical Compliance Sheet:

S. No

Specification

Compliance (Yes/No)

Deviations (if any)

1

Capability of doing work as per specifications mentioned in AnnexureII

Yes

2

Availability of at least Two Jack­up barges to simultaneously work in flowing river of around 5 m depth with tidal variation of about 1.5 m.*

No.

2 No. Jackup Barge

3

Setup for drilling of 150 mm bore in soil and rock (method may vary with soil or rock type)*

Yes

4

SPT setup with automatic free fall hammering system, i.e., weight (63.5 kg) should automatically get released after reaching a height of 76 cm.

Yes

5

Down­The­Hole (DTH) Hammer for conducting SPT tests below 40 m depth.*

Yes

Top driven auto trip hammer system will be deployed to conduct SPT upto 40m. Down­The­Hole (DTH) Hammer / Downhole Cone Penetration Test (CPT) will be conducted below 40m depth to get the required soil parameters.

6

Shelby tubes of 100 mm internal diameter for UDS collection for up to borehole depth 40 m and Shelby Tubes of 70 mm internal diameter for UDS collection at deeper levels.

Yes

7

Use of Mazier sampler as per need (to minimize sample slippage)*

Yes

Mazier sampler / Hydraulically operated Push sampler will be deployed to get undisturbed sandy soil sample.

8

Capacity to perform field permeability test inside boreholes within the flowing river, at a depth of about 15­ 40 m.

9

Capacity of conducting CU and CD triaxial test with back pressure*

Yes

Accreditation process in

10

Accreditation of laboratory by NABL or equivalent agency. (Attach certificate)

Yes

Accreditation process in progress. Otherwise, NABL accredited lab will be engaged for testing

11

At least TWO works/projects of geotechnical investigation in flowing river, costing more than 40 Lakhs in the last 3 years**

Yes

12

Competent to conduct cross­hole tests up to a depth of 60 m and that below water table.*

Yes

We will conduct the cross­hole test throug

22.9 On this count it is relevant to note that the respondents raised 2 vital objections in respect of the said document at Page­162 viz. (1) said document was forwarded by email on 31.10.2018 (i.e. after having submitted the complete set of bid) and (2) according to the terms of the tender document, submission of any document or material by email is not permissible and not acceptable.

22.10 On this count learned advocate for the petitioner relied on Clause­3 and general terms and conditions which read thus:

"3. Fax and Email quotation are not acceptable."

22.11 In light of said provision it is clear that the statement / details which the petitioner submitted subsequently (after having declared the details mentioned in the statement at page 155) that too via e­mail (i.e. the statement at page 162) cannot be and could not have been taken into account (since it was second / subsequent submission / declaration and it was submitted via e­mail for / while evaluating technical bids / for determination of validity of technical bids.

22.12 Therefore, the respondent's decision cannot be faulted. The said decision is in consonance with the terms and conditions of the Tender Document and if it had considered the said details (pg. 162) then it would be not only contrary to and against the terms of tender but also prejudicial to the other bidders. The petitioner's said contention is, therefore, without merits and deserves to be rejected and it is accordingly rejected.

It is pertinent to note that learned advocate for the respondent emphasised another feature (viz. petitioner's conduct) which rendered the petitioner disqualified. Respondent No.3 emphasised that the petitioner did not remain present at the time of technical presentation and thereby the petitioner rendered itself disqualified for further proceeding of the tender process.

23.1 On this count it will not be out of place to take into account the remark and reply of respondent No.3 (in its reply affidavit) with reference to the petitioner's absence during the presentation:

"3.6 I state that in terms of the tender notice, the presentation in reference to the technical bid was scheduled on 02.11.2018. I state that though required, the Petitioner did not remain present during the said presentation. I state that though such absence in itself resulted into disqualification from further stage of evaluation, the Answering Respondent called upon the Petitioner and inquired about their absence and provided an opportunity to make the presentation by Skype / Phone. The Petitioner thereupon made his presentation on telephone. The petitioner was unable to satisfy the members of the Committee regarding his eligibility in terms of the tender specifications." 24.

23.2 So as to support and justify the said submission, respondent No.3 relied on below quoted provisions from clause 17 of the tender document:

"The presentation (refer technical evaluation sheet, Annexure­I) is scheduled as per the critical date sheet given above and the bidder/agency/contractor(s) shall have to be remain present at the scheduled date and time without fail for 'Technical presentation'. Non­presence of any bidder/agency/contractor(s) in the 'Technical Presentation' will disqualify for further stage of evaluation without assigning any reason thereof. The 'Technical Presentation' date and time may be changed and intimated to the tenderers by email well in advance (if any)."

23.3 Above quoted provisions make it clear that the tender document expressly prescribed that non­presence of bidder at the time of technical presentation will disqualify such bidder from the proceeding, i.e. for further stage of tender process. The petitioner, undisputedly, did not remain present at the time of technical presentation and thereby by its own conduct the petitioner rendered itself disqualified. This is an additional feature and fact which emerges from the record and brings out that even otherwise, the petitioner was rendered disqualified.

23.4 In light of the said details the respondent emphasised that despite the petitioner's absence the respondent with a view to giving an opportunity to the petitioner inquired about the petitioner's absence and also provided opportunity to make presentation by skype / phone.

23.5 The petitioner's such representation was considered, however, the petitioner was unable to demonstrate that it fulfills the technical requirements and also complies technical specifications and eligibility criteria.

23.6 On this count, two aspects are relevant to consider viz. that the petitioner has failed to establish that it fulfills technical specifications and/or complies all eligibility criteria as prescribed under tender document in respect of technical bids. It is not even the case of the petitioner that according to the terms and conditions in the NIT, it (the petitioner) fulfills the criterion and it meets with all requirements and should have been considered, eligible and qualified.

23.7 Undisputedly, either according to the guidelines prescribed by CVC or even according to the terms and conditions prescribed by NIT (which, even according to the petitioner, are at much lower and reduced scale), the petitioner is not and cannot be termed as eligible and qualified bidder.

23.8 Secondly the petitioner itself has accepted the respondent's decision with regard to its technical bid and has not even challenged the respondent's decision declaring its technical bid as qualified. Moreover, it is not the case of the petitioner that according to the terms and conditions of the NIT, respondent No.5 is not eligible or qualified and that it could not have been declared eligible and qualified bidder.

In light of the foregoing discussion and for reasons mentioned above, we do not see any merits or justification in the petition.

Besides this, in light of the nature of work for which the contract came to be executed, the relief prayed for by the Para­17(A) and/ or Para­ 17(B) and/ or Para­17(C) do not deserve to be granted.

So far as the relief prayed for in Para­17(D) is concerned, we have already passed order dated 28.12.2018 and that therefore the said issue now does not survive.

There is no justification to grant relief for any Para­17(E).

In the result the petition fails and deserves to be rejected and is accordingly rejected. Notice discharged.