The J&K&L HC while exercising jurisdiction under Article 226 of the Constitution, set aside the decision of the official respondents to issue“Revised Summary of Technical Evaluation Report” with respect to the subject-work as being non-compliant with the mandatory terms and conditions of ITB (Instructions to Bidder) as well as irrational, arbitrary, unfair and in violation of Article 14 of the Constitution.
It was the case of the Petitioner that out of five bidders, who had participated in the tender process, only two bidders, including the Petitioner, were found responsive and technically qualified to participate in the price bid, and the private respondent was declared ‘non-responsive’ for the reason that the annual turnover certificate submitted by the second joint venture partner of the Private Respondent did not have Unique Document Identification Number [‘UDIN’] of Institute of Chartered Accountants of India mentioned in the certificate, which was the mandatory requirement of Instructions to Bidders [‘ITB’]. However, later upon a representation of the Private Respondent, he was declared responsive followed by the impugned decision to issue a revised summary of technical evaluation report was taken by the Respondent. Inter-alia, the argument of the Petitioner was that mentioning of UDIN on the turnover certificate is not an idle formality, but a mandatory requirement.
In response, the Respondents’ argument before the High Court was that the only mandatory requirement of any contract, including the contract in question, is the financial capacity of the bidder to execute the work.
In order to settle the controversy, the Court, analyzing the terms of the of the Contract observed that the ITB unequivocally provides that, without UDIN, the certificate will not be entertained, and the bid shall be rejected, making it clear that any certificate issued by the Chartered Accountant should mandatorily bear UDIN. The Court, thus, held that the decision of the Technical Evaluation Committee in relying upon a part of annual turnover certificate issued by the Charted Accountant without bearing UDIN is, on the face of it, “illegal, arbitrary and seemingly unfair and biased against the petitioner and in favour respondent No.5”.
The above observation was made by the Court in light of the trite principle of law that “if a condition of a contract requires a particular thing to be done in a particular manner and also provides the consequences of its breach, such condition is required to be treated as mandatory”.
The Court further relied on the judgment by the J&K High Court in the case of “Mohd. Yousaf Shan vs. UT of Jammu and Kashmir and Others [WP(C) No. 1875/2023]”in order to differentiate between ‘mandatory or essential conditions’ and ‘ancillary conditions’, wherein the Court broadly laid down, “the law is settled that an essential condition of a tender has to be strictly complied with”.
Thus, observing that the Respondents have not complied with mandatory requirements of ITB, the Court set-aside the impugned decision as violative of Article 14. However, in the larger public interest, and to safeguard the public exchequer, the Court decided not to direct allotment of contract in favor of Petitioner either. The Court disposed off the Petition with a direction upon the Respondents to issue fresh e-NIT inviting fresh bids from the eligible bidders for the subject work.
