Decided on January 08,2021

Dalip Singh Rathore Appellant


Sandeep Sharma,J. - (1.) Since both the petitions arise out of same tender process, same were clubbed together and are being disposed of vide this common judgment.
(2.) Precisely the facts relevant for the adjudication of the cases at hand are that the Himachal Pradesh Housing and Urban Development Authority (hereinafter, 'HIMUDA') in the year 2017 floated tenders vide Notice Inviting Tender (hereinafter, 'NIT') dated 5.8.2017 for the work "Construction of proposed Commercial Complex at Vikas Nagar (near Petrol Pump) Shimla HP (SH:- Construction of 102 Nos Shops, 7 Nos Kiosk, Food Court, Offices, Coffee Shop, Stores, Multiplex halls, Parking floors for 217 Nos. Vehicles, development of land Scaping area, Boundary wall including internal and external services, fire fighting works (internal and external), Electrical works (internal and external), HVAC work (air Conditioning), BMS (Building Management System) and Lifts and escalator etc. (Eleven storied Pre-fabricated building using E.P.S. Technology)". The estimated cost of tender was Rs.85,30,43,091/-. However, for the reasons best known to HIMUDA, aforesaid NIT was not taken to its logical end, rather HIMUDA, vide NIT dated 4.10.2018 (page 17 of CWP No. 363 of 2019), invited e-tender for the aforesaid work, putting the estimated cost of Rs.45,44,66,273/- only. Though, as per the terms and conditions contained in the NIT, contractors enlisted with the Government of Himachal Pradesh and its agencies as well as neighbourng States of Punjab and Haryana and Chandigarh (UT) could participate in the aforesaid tendering process of HIMUDA, but, subsequently, the successful bidder was required to get itself registered with HIMUDA under appropriate class before signing the contract.
(3.) Respondent HIMUDA yet again did not take any action pursuant to aforesaid NIT dated 4.10.2018, rather issued another NIT for the same work but eligibility condition of participation in tender came to be changed/modified. Pursuant to tender of November 2018, petitioners Dalip Singh Rathore, M/s Level 9 Biz Pvt. Ltd. and respondent No.2 M/s Vasu Construction Company participated in the tender process alongwith other eligible contractors. Technical bid submitted by the petitioner Dalip Singh Rathore primarily came to be rejected on the ground that he has only submitted work done certificate qua civil engineering work and not qua the works executed by him, if any, under E.P.S. technology. Technical Bids submitted by respondent No.2 Vasu Construction Company and other contractor M/s Level 9 Biz Pvt. Ltd., were accepted as a consequence of which Financial Bids submitted by aforesaid parties were approved by the Tender Evaluation Committee (hereinafter, 'TEC') Respondent Vasu Construction Company being lowest bidder became entitled for award of work in question. Petitioner in CWP No. 3021 of 2018, being aggrieved on account of rejection of Technical Bid approached this court in the instant proceedings with following reliefs: "i) Quashing the Notice Inviting Tender issued by the respondent no. 1 at annexure P-5. ii) Quashing the decisions of the respondent taken pursuant to the NIT at annexure P-5. iii) For holding that condition of having carried out construction work in past using EPS technology and similar such conditions cannot be incorporated as an essential eligibility condition of bidding for the work involved in annexure P-5, in view of submissions made in the writ petition. iv) For holding that condition of having carried out 1 work of 80%, 2 works of 50% and 3 works of 40% of the estimated value of tender work could not be diluted to just 1 work of 40% of estimated value of tender work in question. v) For holding that the respondents cannot remove the general required condition from the tender that a bidder should not have Non Performing Assets or disputes with banks, which was also there in the original tender at annexure P-1. vi) For directing the respondent to produce the entire record of tender in question and bids made by the tenderers in the Hon'ble Court and to see the compliance of conditions by those who have been declared as qualified as to the knowledge of the petitioners even those who are declared as qualified do not satisfy the eligibility conditions and had not submitted the required documents including the Joint Venture documents at the time of submission of the bids." ;

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