SEEMA ENTERPRISES Vs. IRCON INTERNATINAL LTD

JUDGEMENT

(1.) The present petition under Article 226 of the Constitution of India has been preferred against the decision of the respondent no.1 to reject the bid of the petitioner, on the ground of non-submission of requisite documents, specifically, the TDS certificate.

(2.) The respondent no.1 issued a Notice Inviting Tender (NIT) on 10.12.2020 for works pertaining to the four laning of the Shivpuri-Guna Bypass section of National Highway-3 (NH-3), falling between chainage 319.700 KM and 332.100 KM. The respondent then issued three corrigenda to the NIT dated 10.12.2020; Corrigendum-I issued on 22.12.2020 revised certain aspects of the eligibility criteria contained in the original NIT, Corrigendum-II issued on 05.01.2020 extended the last date of submission of the bid from 06.01.2021 to 11.01.2021 and CorrigendumIII issued on 11.01.2020 revised the conditions relating to the Bill of Quantities. Now, Annexure-V contained in Section 3 of this NIT made it mandatory for all bidders, who were submitting certificates issued by public limited company/concessionaire company/private company/JV company in support of the plea that they had previously effected similar works, to ensure that they attached TDS certificates which corroborated the value of this similar work that they claimed to have done in the past. It appears that on 09.01.2021, when the petitioner submitted its bid, it did not furnish the TDS certificate for the entire value of the similar work it claimed to have carried out in the past, which rendered it eligible under the NIT, rather it furnished a work completion certificate from a private entity, being one M/s Ravi Infrabuild Projects Pvt. Ltd., as proof of its work experience. Consequently, on 16.02.2021, the petitioner received an e-mail from respondent no.1 stating that its Technical Bid had been rejected for failing to fulfil the Eligibility and Qualification Criteria (EQC). On the very same day, the petitioner shot off a letter to the respondent no.1, seeking reasons for the rejection of its bid, and got in touch with the officials of respondent no.1 as well. Although the petitioner did not receive a formal communication in this regard, it claimed to have been verbally informed that its bid had been rejected since it had not attached any TDS certificate in respect of the 2nd and 3rd quarters of the FY 2019-20, which corresponded with the work completion certificate issued by M/s Ravi Infrabuild Projects Pvt. Ltd. It is in these circumstances that the present petition came to be filed assailing the decision of the respondent no.1 to reject the petitioner's bid.

(3.) In support of the petition, learned senior counsel for the petitioner submits that the petitioner could not be faulted for failing to submit, with its bid, the TDS certificates for a part of the work that the petitioner had carried out for Ms/ Ravi Infrabuild; it was this company which was supposed to provide the TDS certificate to the petitioner in corroboration of its claim of having done the work as required by the EQC contained in the NIT, did not provide the same for the 2nd and 3rd quarters of 2018-19 on time. He submits that, however, the petitioner had duly submitted the work completion certificate issued by M/s Ravi Infrabuild at the time of submitting its bid on 09.01.2021 and, later, when the TDS certificate came to be issued by the company, it promptly filed the same with the respondent no.1 on 16.02.2021. He, thus, submits that there can be no question of the petitioner being declared ineligible for failing to submit the documents required, since the same stood filed with the respondent no.1 as soon as it was in receipt thereof. Furthermore, once the NIT specifically permitted the bidders to submit experience certificates of ongoing works, there was no reason as to why a TDS certificate filed after the submission of the bid, was a ground for rejecting the petitioner's bid.