- (1.) THE petitioner who was unsuccessful before the learned Single Judge is before us. The appellant/petitioner is engaged in the business of manufacture and sale of Ductile Iron (DI) pipes used for water, gas and sewerage projects which conform to IS 8329:2000 specifications.They claim that they are one of the leading manufacturers of DI pipes having turn -over of Rs.2000 crores per year. According to them, at the instance of their rivals in the business they are not successful in any of the tender process for some reason or the other since respondent authorities are influenced by the bidders who are the competitors of the appellants. Therefore, authorities blacklist them without assigning any reason. In this connection, there were several writ petitions filed by the appellants; some are disposed and some are pending.
(2.) SO far as the present controversy, it pertains to notice inviting tender of supply and delivery of Ductile Iron pipes by respondent i.e. Executive Engineer, Resource Division, Directorate of Public Health Engineering, Calcutta. As per the tender notice two relevant Clauses which have to be complied with by the tenderer are very significant. We are concerned with Clause 3(h) of the said notification which reads as under: - "h) A Declaration in the form of an Affidavit on a non -judicial stamp paper of Rs.10/ -, duly affirmed before a Notary public/1st Class Magistrate should be submitted as per format given in the Proforma I, stating clearly that on the date of submission of the tender, the applicant is not disallowed / debarred / delisted / blacklisted for participation in any DI Pipe supply tender by any Govt.Deptt. / Govt. undertaking / Statutory Body / Municipality / Municipal Corporation in India. If any such incident is otherwise discovered, the applicant's tender/order shall be cancelled summarily without assigning any reason whatsoever. According to the appellant, this Clause 3(h) is substantial reproduction of the earlier clause incorporated in the previous tender. The word 'disallowed' is inserted now with the ulterior motive, only with the intention to disqualify the tender of the appellant. According to them, the word 'disallowed' is not the same as debarring or delisting or blacklisting and this word has no significance to a tender process. Similarly, Clause 3(i) is also brought in further for the sole purpose to prejudice the interest of the appellant/petitioner.
(3.) NOW , the issue revolves around letter dated 19.8.2014 rejecting the tender of the appellant. The bids have to be opened in two stages, - technical and financial. It is not in dispute that the technical bid was opened on 12.8.2014. As per letter dated 19.8.2014, the appellant was disqualified on the ground of non -fulfilment of eligibility criteria as per Clause 3(h). This letter was issued on the basis of a letter issued by Hyderabad Metropolitan Water Supply Sewerage Board wherein Clause 3(h) permits cancellation of tender in the event of applicant has been debarred/delisted/disallowed/blacklisted by any statutory board or municipality from participating in the future DI Pipe supply tender. The letter of Hyderabad Board is dated 19.3.2013 wherein the allegation against the appellant -petitioner was, it had not disclosed the information, required to be disclosed as per tender document issued by Hyderabad Board. By letter dated 7.6.2013 Hyderabad Board had confirmed the rejection of a tender of the appellant and cancellation of the work for violating the conditions of tender. According to the appellant -petitioner, the said order of Hyderabad Board rejecting the tender of appellant and cancellation of work does not constitute either delisting, blacklisting or debarring by the Hyderabad Board. Therefore, it is not covered by Clause 3(h) of present tender terms. Learned Single Judge after referring to the Clause 3(h) as noted above, so far as the tender notice pertaining to the project in question, opined that the decision contained in the letter dated 19.8.2014, prima facie cannot be faulted with as the appellant -petitioner itself called for, ascertainment of genuineness of the content of the said letter dated 7.6.2013 to which a reply was received by it on 7.9.2013. The ascertainment of the information was in 2014. The letter dated 7.6.2013 till date is not challenged. Therefore, in the absence of challenging such letter, interim orders granting relief sought by the appellant cannot be entertained.;