M/S Avinash Buildcon Infrastructure Private Limited vs. State Of Chhattisgarh

Held

The Court held that the respondent-State acted in extending undue favour to respondent No. 6, rendering the decision-making process erroneous. The Court found that respondent No. 6 failed to fulfill the mandatory condition of having a Hot Mix Plant and submitted false information. The Court relied on Supreme Court judgments emphasizing that tender conditions cannot be ignored or treated as redundant, and that condonation of non-compliance with essential conditions amounts to perversity. The Court declared respondent No. 6 disqualified. The Court directed respondents No. 1 to 5 to proceed further with the subject tender and pass appropriate orders in accordance with the law. The Court refrained from commenting on the conduct of respondent No. 5, leaving it to respondents No. 1 to 4 to consider and take appropriate action if they desired. The Court did not expressly leave any issue undecided.

Facts

The petitioner, M/s Avinash Buildcon Infrastructure Private Limited, challenged the eligibility of respondent No. 6, M/s Maa Bhagwati Construction, in a tender process for road repair work. The petitioner alleged that respondent No. 6 provided false information regarding its Hot Mix Plant, a mandatory requirement under Clause 9 of the tender document. Specifically, the petitioner claimed respondent No. 6 did not own a Hot Mix Plant as of April 1, 2020, and had only submitted a certificate, not certified copies of work orders, as required. The petitioner's initial representation to the authorities was not acted upon, leading to the filing of the writ petition. The petitioner later amended the petition to seek declaration as the successful bidder and an inquiry into the conduct of respondent No. 5. The State and respondent No. 6 contested these claims, arguing that the Hot Mix Plant requirement was contingent on mobilization advance and that the submitted certificate was valid.

Key Issues

1. Whether the declaration of respondent No. 6 as eligible for participating in the price bid opening, and subsequently being declared L-1, was arbitrary and irrational, violating the terms of the tender document, specifically Clause 9 regarding the mandatory requirement of a Hot Mix Plant and submission of certified work orders? (Question of mixed law and fact, turning on Clause 9 of the tender document). Petitioner's Arguments: - Respondent No. 6 provided false information regarding its Hot Mix Plant, failing to meet the mandatory requirement of Clause 9. - Respondent No. 6 submitted only a certificate and not certified copies of work orders as required by Annexures 1 & 2. - Respondent No. 6 was disqualified in a similar tender for submitting false information and lacking a Hot Mix Plant, as evidenced by Annexure P/4. - The authorities acted erroneously by not considering these discrepancies and by certifying undated and false information. Respondent-State's Arguments: - The condition of having a Hot Mix Plant would arise only after the release of mobilization advance, which occurs after the work order is issued. - Clause 7(d) of the terms and conditions mentions "Procurement against mobilization advances." - Annexure P/4 pertains to a different tender proceeding. - If contentions were correct, respondent No. 6 would have been disqualified (as stated in para 8 of the reply). Respondent No. 6's Arguments: - The requirement was to furnish an online certificate of availability of plant and machinery. - The Hot Mix Plant requirement could be fulfilled up to the stage of mobilization advance, which had not yet occurred. - A certificate issued by the Executive Engineer was submitted, meeting the age requirement. - The Hot Mix Plant was purchased prior to bid submission, with invoices dated 30.05.2020 and 06.06.2020. - Disqualification in another tender is not a ground for disqualification in this one.