Md. Jiyaur Pasa vs. The Union Of INDIA And 3 Ors.

Facts

The petitioner, Md. Jiyaur Pasa, a Class-IA contractor registered with the Chief Engineer, PWRD, Assam, filed a writ petition challenging a Notice Inviting Tender (NIT) dated 03.08.2024. The NIT invited bids for road and bridge upgradation under the Pradhan Mantri Gram Sadak Yojana (PMGSY-III) in various districts of Assam. The petitioner's grievance stemmed from two main conditions in the NIT: the mandatory use of Full Depth Reclamation (FDR) technology, which he claimed to lack the financial capability for and experience with, and the grouping of different package works from various districts into single groups, arguing that works should be allotted package-wise and district-wise. The petitioner had submitted representations to the respondents, which he claimed were not considered.

Held

The Court dismissed the writ petition. The primary reason for dismissal was the petitioner's failure to adhere to the procedural timelines outlined in the NIT. The Court noted that Clause 7 of the DNIT clearly stipulated that bidders were requested to send emails seeking clarification in advance, well before the date of the pre-bid meeting. The petitioner had not sought any such pre-bid clarifications by way of email. Furthermore, the petitioner had not submitted any bid by the last date of submission, 29.08.2024. Instead, the petitioner filed the writ petition on 27.08.2024, which had defects and was rectified and filed only on 29.08.2024, subsequently being listed on 30.08.2024, the day of bid opening. The Court found that the petitioner had "missed the bus" by not seeking pre-bid clarifications within the stipulated time and by approaching the Court late. Consequently, the Court was not inclined to exercise its discretion in the matter. The ratio decidendi is that a party challenging tender conditions must exhaust the remedies provided within the tender process, such as seeking pre-bid clarifications, before approaching the High Court, especially when procedural timelines have not been met.

Key Issues

1. Whether the petitioner's challenge to the NIT's conditions, specifically regarding the mandatory use of Full Depth Reclamation (FDR) technology and the grouping of works, is maintainable given the procedural timelines stipulated in the NIT and the petitioner's failure to seek pre-bid clarifications or submit a bid. (Mixed Law and Fact) Petitioner's Arguments: The petitioner contended that the mandatory use of FDR technology, being introduced for the first time in Assam, would cause undue hardship due to his lack of financial capability and the requirement of 5 years of experience with the system, which he does not possess. He also argued that grouping works from different districts into single packages was improper and that contracts should be allotted on a package-wise and district-wise basis. He further stated that his representations against the NIT terms were not considered. Revenue/State's Arguments: The respondents argued that the NIT provided a mechanism for seeking pre-bid clarifications via email well before the pre-bid meeting, as per Clause 7 of the Detailed Notice Inviting Tender (DNIT). The last date for bid submission was 29.08.2024, and bid opening was scheduled for 30.08.2024. The petitioner failed to seek any pre-bid clarifications and did not approach the court within the stipulated time or utilize the provided recourse. Therefore, the writ petition should be dismissed for not adhering to the NIT's provisions and for approaching the court late.