Smarak Nayak vs. State Of Odisha

1. At the time of admission of the instant writ petition, it was argued on behalf of the petitioner that the order appearing at page- 61 pertains to the rejection of a bid solely on the ground that uploading of the license is not mandatory at the time of submission of bid under Clause 5.10 of the tender document.

The attention of the Court was drawn to the page 61, which reveals that the registration is rejected due to license having not uploaded for authentication. The Court proceeded to pass an interim order after taking into account Clause 5.10 of the tender document, which on the face of it does not create imperative condition of uploading the license, but same can be filed subsequent thereto in the event, the bidder is adjudged successful. The interim order was passed by this Court restraining the opposite parties not to proceed any further on the basis of the said tender, which is still operative.

Opposite parties No.2 and 3 filed counter affidavit dealing with the averments made in the said writ petition and the summum bonum of the entire objection runs around the core issue that unless a bidder has registered itself/himself with the portal, he is not entitled to participate in any Government tender. It is highlighted by the said opposite parties that since the petitioner is not a registered contractor, he disqualifies himself to participate in the said tender, which would further be evident from the document annexed at page 61 of the writ petition.

The Court while admitting the writ petition and passing the interim order was of the view that the bid submitted by the petitioner was rejected solely on the ground of non-uploading of the license along with the bid, but it appears from the respective stands that the issue hovers around the application seeking registration in the procurement portal as an approved contractor and the said application got rejected on the premise as indicated hereinabove.

Though the State-opposite parties did not file any counter affidavit, but it is submitted by Ms. Biswabara Dash, learned Additional Standing Counsel for the State-opposite parties that the petitioner did not submit the requisite license concerning the transport business and the representative of the petitioner having apprised of the said fact, assured the authority to cancel the said registration application so that appropriate application for labour works would be filed, which in fact was not subsequently done despite the e-mail having forwarded in this regard.

From the respective stands taken by the parties, it is imperative on the part of the contractor/bidder to register in the portal using his/her personal details in terms of Clause 15.1 of Appendix-IX (A) of the OPWD Code Volume-II, which runs thus:

It is manifest from the above quoted provision, which has a statutory flavor that in order to get registration in the said portal, the documents mentioned therein are required to be uploaded and it is only after the successful authentication having done by the appropriate authority, the bidder shall be permitted to participate in the online bidding process. The contractor or bidder is required to submit documents relating to Permanent Account Number, the Registration Certificate/VAT Clearance Certificate and in the event, the said contractor or bidder is registered under the GST, the certificate in support thereof. Once the documents as required are uploaded, the contractor/bidder shall be a successful registered contractor/bidder. Any lapse or default or not uploading those documents may invite the consequence of rejection thereof.

Though the order of rejection of an application to get himself registered in the said portal is indicative of non-submission of the license, a specific stand is taken by opposite parties No.2 and 3 in the counter affidavit that the petitioner did not submit the PAN, VAT or GST certificates, which are mandatory requirements under the said OPWD Code. The petitioner has taken a specific stand in the writ petition that he submitted all the documents and uploaded at the time of registration, but in view of the dissenting stand having taken by opposite parties No.2 and 3, we have to ascertain whether, in fact, the petitioner submitted those documents. The document rejecting the said application for registration is annexed to the writ petition at page 61 thereof. If it is reflected in the said document whether those documents are filed or not, the statement in the pleading has to be verified and the sanctity should be given to such documents. The order of rejection as uploaded on the portal contains various columns including the Bidder Registration where the necessity of submission of the “PAN Certificate, Registration/VAT Certificate and Registration and GST Certificate” is evident and apparent therefrom. It is manifest from the reading of the same and the column relatable to the size of the electronic document that it appears to be NIL. If a document is uploaded in the PDF form, it would certainly reflect the size of the said documents either in KB or MB, but once it is shown as NIL, it corroborates that no such document was filed along with the said application.

We are unable to accept the contention of the petitioner that those documents were filed along with the application and hold that those documents, which are necessary for the purpose of registration, does not appear to have been filed. Clause 15.1 of Appendix-IX (A) of the OPWD Code Volume-II clearly postulates the submission of those documents and the verification of the original and after being satisfied in this regard, the successful authenticated bidder would be permitted to participate in the online

Despite the stand having taken by the State that the representative of the petitioner assured the authorities to file a fresh application for registration and conveyed its intention to reject the said application already filed and instead of going into such disputed arena, we find that once the application is defective having not contained the requisite documents, the order of rejection does not warrant any interference in the instant writ petition.

Mere rejection of a registration on the portal for the purpose of participating in the bid does not partake a character of a debarment as it is open to such contractor/bidder to apply after fulfilling all the terms and conditions as embodied in the statutory document.

We find no fetter on the part of the authorities to act upon subsequent application, if it is found to be in order and in conformity with the requirement.

In view of the findings made hereinabove, we do not find any merit in the writ petition and the same is hereby dismissed. The interim order stands vacated. No order as to costs.

In view of the dismissal of the writ petition, the interlocutory application seeking addition becomes infructuous and is accordingly disposed of.