M/S Fazal Rehman Dar Th Mujeeb Ur Rehman Mal Mandi Rajouri vs. U T Of J And K Th Commissioner Secretary Pw R And B Deptt And Others

Facts

The petitioner, M/s Fazal Rehman Dar, challenged the acceptance of the technical bid of respondent No. 3 and the subsequent declaration of respondent No. 3 as the successful bidder for a road upgradation contract. The petitioner had previously been declared technically disqualified in an earlier tender for the same work. In the current tender, the petitioner alleged that respondent No. 3 submitted defective Income Tax Returns (ITRs) by enclosing acknowledgements instead of the actual returns for the last five financial years, and that the bank certificate provided did not adequately demonstrate access to credit lines. The petitioner also contended that the respondents applied different yardsticks for disqualification, citing an instance where another bidder was disqualified for not submitting a company audit report for the last five years. The petitioner further argued that the technical and financial bids were opened on the same day with insufficient time for complaints, violating the prescribed procedure.

Held

The Court held that respondent No. 3's submission of Income Tax Return acknowledgements, along with a deed of taking over the business from a proprietorship concern, was acceptable. The Court noted that the deed established that respondent No. 3 had acquired all assets, liabilities, and experiences, including those of Abdul Hafiz Wani, and that the Tender Inviting Authority (TIA) had accepted this. Therefore, the Delhi High Court judgment relied upon by the petitioner was deemed not applicable as the facts were distinguishable. Regarding the alleged inconsistency in disqualification criteria, the Court found no instance where bids were rejected in identical situations, and the rejections in other cases were on different grounds. The Court also found no evidence of bias against the petitioner, noting that the petitioner had been allotted other contracts. Concerning the bid opening procedure, the Court found no merit in the petitioner's contention, stating that the petitioner was trying to find faults with a magnifying glass and that the TIA is the sole judge of tender conditions unless its interpretation is perverse or irrational. As the decision was neither perverse nor irrational, and no public interest was involved, the Court dismissed the petition. No specific issue was left undecided.

Key Issues

1. Whether respondent No. 3's submission of Income Tax Return acknowledgements instead of the actual returns for the last five financial years, and a bank certificate not explicitly stating access to credit lines, met the requirements of Clause 4.4 B (a) III (b) and Clause 4.4 B (a) xi of the e-NIT, thereby making their technical bid responsive? 2. Whether the disqualification of other bidders on grounds such as not submitting a company audit report for five years, while respondent No. 3's bid was accepted despite alleged deficiencies, demonstrated a discriminatory application of tender conditions by the respondent No. 2? 3. Whether the procedure for opening the technical and financial bids, specifically the short interval between the public announcement of technical evaluation results and the opening of financial bids, violated Clause 22.7 of the e-NIT, thereby vitiating the selection process? Petitioner's Arguments: - Respondent No. 3 failed to comply with Clause 4.4 B (a) III (b) by submitting ITR acknowledgements instead of returns and did not provide a valid bank certificate as per Clause 4.4 B (a) xi. - The respondent No. 2 applied inconsistent disqualification criteria, as evidenced by the disqualification of M/s Green Earth RLS (JV) for similar deficiencies. - The procedure for bid opening was flawed, with the financial bid opened on the same day as the technical evaluation results were published, leaving no time for complaints as stipulated in Clause 22.7. Respondents' Arguments: - The bank certificate, though containing a disclaimer, was accepted in similar cases and was not a ground for disqualification. - The petitioner's grievance was primarily to further commercial interests, not public interest. - The interpretation of tender conditions by the Tender Inviting Authority (TIA) should not be interfered with unless perverse or irrational.