Excelsior Correspondent
SRINAGAR, Jan 22: The High Court dismissed the plea challenging the process of tendering for development of Central Courtyard at Mubarak Mandi Heritage Complex, Jammu citing award of contract through e-tendering is commercial transaction and State is free to choose own method to arrive at a decision for relaxation to the bidder.
The e-NIT issued by the Chief Engineer PWD (R&B) Jammu whereby e-tenders were invited from the approved and eligible contractors for the work namely, “Development of Central Courtyard at Mubarak Mandi Heritage Complex, Jammu” was challenged by the aggrieved contractor by stating that the Executive Engineer, PWD(R&B) PD-II, one of the member of the technical evaluation committee, has commented that M/s New Hi-Tech Works Jammu does not fulfill the condition at serial No.9 (i) of Clause 2.2.1 of SBD and also Rule 173(xii) of GFR, 2017.
According to the aggrieved contractor, the approved contractor firm (New Hi-Tech) also lacks the basic mandatory provisions to qualify for the financial bid, due to his failure to upload the affidavit duly attested by the 1st Class Judicial Magistrate/Executive Magistrate because the affidavit loaded bears only seal of the Judicial Magistrate 1st Class without any signatures.
The grievance of the petitioner is that despite lacking the eligibility criteria, name of respondent No.3 has been put in the responsive column in the impugned technical evaluation result, which is indicative of the fact that CE R&B is giving undue benefit to the firm.
The respondent department resisted the claim of the aggrieved petitioner-contractor by stating that during technical evaluation of the tenders for the work in question, it was observed that four, out of seven bidders, did not conform to the SBD conditions for the reasons shown against each of them in the Technical Evaluation Result.
According to the stand of department, the successful-contractor (M/S Hi-Tech) conforms to all the major SBD conditions viz-a-viz financial capability as per the requirement and experience in similar nature of works as he enclosed all the affidavits, as per the SBD requirements of the bid, however, the initials/signatures of the judge were missing/not visible on the stamp of the Sub-Judge. Regarding the minor conformity, clarification was sought from the office of the Advocate, who has got attested/identified the private respondent before the Judge, who had attested the affidavit through e- mail in accordance with the Clause 5.4.4 and 5.4.5 of Manual of Procurement of works, 2022.
The department further clarified by submitting that the respondent authority has acted in strict conformity with the terms and conditions of the tender document. Every step in the tender process has been conducted in accordance with the eligibility criteria, technical specifications, and procedural requirements expressly stipulated in the tender.
“At no stage has any condition of the tender been breached or disregarded. No new condition, criterion, or requirement was introduced after issuance of the tender. The evaluation and decision-making were confined strictly to the terms already notified. The department has neither altered the scope of the tender nor introduced any extraneous consideration that was not contemplated in the original tender document”, read the reply of department.
Underscoring, the ruling of the apex court in this regard, Justice Moksha Kazmi said that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation.
“In view of the clear legal position, no case for interference by this Court is made out. Accordingly, the writ petition fails and is dismissed as such”, the court concluded.
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