Rajat Thakur And Another vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

The petitioners participated in a tender process under certain stipulated eligibility terms & conditions and remained unsuccessful. In fact, no bidder could qualify the tender process, hence, the respondents re-advertised the tender. Petitioners’ challenge is to the terms & conditions of the tender document and have prayed for issuance of writ of mandamus to the respondents to advertise the tender on the conditions on which the respondents have issued another tender in another division.

Facts:-

2(i). Respondent No.5-The Superintending Engineer, 9th Circle HPPWD Nurpur, issued a notice inviting bids for Pradhan Mantri Gram Sadak Yojana for construction and maintenance of roads using Cement Treated Base Technology for upgradation of Ghandran to Rehan Via Moki road (T -06) from km-0/000 to km-20/600 under PMGSY-3 (Batch-II). The bids could be submitted online from 07.02.2024 to 22.02.2024 and were to be opened on 26.02.2024.

Two conditions of the bid documents as highlighted by the petitioners were:-

“Section-1 Condition No.20 (vi) The Contractor having experience of road Construction based on CTB/CTSB/FDR Technology for at least 50 kms of length will qualify to participate. Section-2 Condition No.4.4A To qualify for award of the Contract, each bidder should have in the last five years:

(b) Satisfactorily completed, as prime Contractor or sub-contractor, at least one road construction work equal to one-third of the estimated cost of road work of similar nature i.e. WMM/Cement Concrete Pavements/FDR/CTB (excluding maintenance cost for five years) for which the bid is invited, or such higher amount as may be specified in the Appendix to ITB.

The value of road work completed by the bidder under Pradhan Mantri Gram Sadak Yojana in originally stipulated period of completion shall be counted as 120% for the purpose of this Sub-Clause.”

2(ii). The petitioners participated alongwith others in the tender process. All the bids were declared unresponsive by the respondents as the participants including the petitioners did not satisfy the aforementioned criteria.

2(iii). The respondents issued a fresh notice inviting tender for the above work on 18.03.2024 with same set of conditions. This fresh tender has been assailed herein.

The case of the petitioners is that the respondents have issued another tender for four roads in 8th Circle, HPPWD Hamirpur Division for regular PMGSY (CTB Technology). The conditions incorporated therein are different from the ones incorporated in the tender for the road work in question, i.e. in Nurpur Division. According to the petitioners, for similar work, two different set of conditions could not have been prescribed. Petitioners label this act of the respondents in prescribing different conditions for the aforesaid two works in different divisions as arbitrary and mala fide. Hence, this writ petition has been filed for quashing the fresh tender notice dated 18.03.2024 with further direction to the respondents to have same conditions in the State of Himachal Pradesh for same/identical work.

Somewhat similar question came up before the Hon’ble Apex Court in AIR 2022 SC 4749 (Airport Authority of India Versus Centre for Aviation Policy, Safety & Research (CAPSR) & Others), wherein the Airport Authority of India had challenged the decision of the High Court in quashing and setting aside the eligibility criteria/tender conditions in exercise of power under Article 226 of the Constitution of India. The Hon’ble Apex Court held that terms & conditions of the invitation to tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny unless they are arbitrary, discriminatory or mala fide. The Government/tenderer/tender making authority must have a free hand in settling the terms of the tender. Only if the terms are arbitrary, mala fide or actuated by bias, the Courts would interfere. The Courts cannot interfere with 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.

All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. The terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer [Reference: (2014) 3 SCC 760, Maa Binda Express Carrier v. North-East Frontier Railway and (2012) 8 SCC 216, Michigan Rubber (India) Limited v. State of Karnataka].

In the instant case, it is not even the grievance of the petitioners that the tender conditions were tailor - made to benefit any particular tenderer. Alleged mala fide or arbitrariness is not established. The conditions of the tender documents highlighted by the petitioners cannot be said to be irrelevant for the tendered work. In view of the law summarized in Airport Authority of India’s case, supra, no case is made out for Court’s interference in the terms and conditions of the fresh tender document (Annexure P-5).

For the foregoing reasons, there is no merit in the instant writ petition. The same is accordingly dismissed alongwith pending miscellaneous application(s), if any.