Hon'ble Attau Rahman Masoodi,J.
This writ petition has prayed for quashing of the disqualification stated to have been incurred by the petitioner preventing further participation in the bid according to the tender floated by the respondent no. 3, and further to quash the consequential communications dated 24.11.2015 and 16.12.2015 rejecting the representations of the petitioner.
The petitioner was a bidder for certain construction of roadside work whereby upgradation of the road between Edilpur to Gopalganj via Shahpur Nahar was proposed under the Pradhan Mantri Gram Sadak Yojna Rural Roads Project.
The tender documents which are undisputed have been filed alongwith the writ petition as Annexure 6. The bidders were also required to fill up the qualification information under Section 3 of the bid documents, particularly the information under the heading "works for which bids already submitted". This information was to be tendered alongwith the bid documents which the petitioner admittedly did not furnish in the tender form.
The bids are to be evaluated on the basis of the entire bid documents. Clause 4.7 of the bid documents reads as under:-
"4.7. Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have:
(i) made misleading or false representations in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements; and/or
(ii) evidence of confirmed record of poor performance such as abandoning the works, not property completing the contract, inordinate delays in completion, or financial failures etc.
(ii) participated in the previous bidding for the same work and had quoted unreasonably high or low bid prices and not furnish rational justification for it to the Employer."
The bidding documents consist of several documents including the qualification information as per the Notes provided for under Section 3 of the bid documents that includes the information of works for which bids have already been submitted. This is as per Clause 1.3.2 (b) of the Notes on Form of Qualification Information.
The examination of bids and the determination of responsiveness is carried out as per Clause 25 and the same is extracted herein under:-
25. Examination of Bids and Determination of Responsiveness 25.1 During the detailed evaluation of Part I of Bids, the Employer will determine whether each Bid (a) meets the eligibility criteria defined in Clauses 3 and 4; (b) has been properly signed; (c) is accompanied by the required securities; and (d) is substantially responsive to the requirements of the bidding documents. During the detailed evaluation of Part II of Bids, the responsiveness of the bids will be further determined with respect to the remaining bid conditions, i.e., priced bill of quantities, technical specifications and drawings.
25.2 A substantially responsive bid is one which conforms to all the terms, conditions, and specifications of the bidding documents, without material deviation or reservation. A material deviation or reservation is one (a) which affects in any substantial way the scope, quality, or performance of the Works; (b) which limits in any substantial way, inconsistent with the bidding documents, the Employer's rights or the Bidder's obligations under the Contract; or (c) whose rectification would affect unfairly the competitive position of other bidders presenting substantially responsive bids.
25.3. If a bid is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the nonconforming deviation or reservation."
The petitioner claims that the bids which were received were evaluated but the petitioner's bid was rejected as not technically qualified. The main reason which has now come forward after the decision on the representation of the petitioner is to the effect that the petitioner was not qualified, inasmuch as, he had not furnished the information as desired in respect of the works for bids already submitted.
Learned counsel for the petitioner contends that non-furnishing of any such information does not in any way benefit the petitioner or cause any corresponding loss to anyone nor the same would amount to any unfair competitive position so as to put any other bidder to disadvantage when the comparative bids are assessed.
It is further submitted that non-furnishing of such information does not amount to misleading the authority or making a false representation. For this, it is urged that it is only if any misleading information is furnished in proof of the qualification requirements that an allegation of misleading or false representation can be made.
Learned counsel for the petitioner submits that since no information was tendered at all, the respondent could not have been misled nor could the petitioner be treated to have misrepresented any facts. The main argument of the learned counsel for the petitioner is that even otherwise such information would have no bearing on deciding the qualification criteria, inasmuch as, such requirement under Section 3 deals with post qualification requirements and it is only after the technical bids are passed through that thereafter the same may assume any relevance.
We have considered the submissions so raised and have also heard the learned for the respondent State. The question of any benefit or any post qualification assessment does not arise in the present matter, inasmuch as, the entire information has to be furnished alongwith the bid documents. The participation in any previous bid is also one of the informations for which the said information about works for which bids already submitted is required. It is therefore a necessary information to gauge the capacity and eligibility of a bidder before assessing his bid and awarding the contract. The said information is necessary for the purposes of evaluation. The petitioner admittedly inspite of having that information did not furnish it or stated it in the Form. It is for the petitioner to explain as to why he did not do so and a mere excuse of inadvertence would not allow the petitioner to claim any rectification or correction thereof. The furnishing of the information is necessary and its withholding amounts to concealment which in turn is misrepresentation. By withholding such information, the representation before the authority was therefore false. The argument that it would have no bearing or impact at the stage of evaluation, is therefore not correct, inasmuch as, it is for the employer to decide as to whether such information would have any impact or not. The obligation of the petitioner was to disclose every information as per the bidding documents including the qualification information as provided for in Section 3.
It is for this reason that Clause 4.7 is clearly attracted and the petitioner having withheld relevant information, stood disqualified and was therefore rightly eliminated from the process of evaluation and final bidding.
The contention of the learned counsel for the petitioner is that it was a mistake and which information was tendered later on that could have been taken into account. He submits that the terms and conditions should not be read in a narrow manner and if the petitioner has furnished the said information, even if later on, the same should be taken into consideration for evaluating the bid of the petitioner.
We are unable to agree with this proposition, inasmuch as, it would amount to relaxing the terms and conditions of the submission of bid documents for the purpose of assessment of a bid, and if this is permitted, then same would violate Article 14 of the Constitution of India. Such relaxation is neither permissible nor does it fall within the category of a correction as the petitioner has clearly omitted to state certain facts that were necessary for the purpose of assessing and evaluating a bid by the petitioner. A complete non-disclosure is not a correctable error permissible under the terms and conditions spell out hereinabove.
In our considered opinion, the elimination of the petitioner and the rejection of his representation do not suffer from any infirmity much less a legal infirmity.
The writ petition lacks merit and is accordingly dismissed.
Order Date :- 14.1.2016 sahu