AJAY KUMAR MITTAL, J. - (1.) THE petitioner, an unsuccessful tenderer has filed this petition under Articles 226/227 of the Constitution of India challenging the action of respondent-Haryana Urban Development Authority in rejecting its bid vide notice dated 3.2.2012, Annexure P.4 and awarding of contract in favour of respondent No.3 in respect of the project for the construction of 120 MLD capacity Sewage Treatment Plant etc. at Village Behrampur, Gurgaon. Prayer has also been made for quashing Clause 3.1.7 of the Bid document, Annexure P.1 being illegal, arbitrary and without any justification.
(2.) A few facts relevant for the decision of this case, as narrated in the petition may be noticed. The petitioner is a company incorporated under the Companies Act, 1956. It is engaged in the business of providing services of project development like planning, feasibility studies, engineering design, equipment/system supply and construction/installation. On 25.12.2011, respondent No.1 invited tenders from interested contractors having prescribed technical and financial credentials for construction of 120 MLD capacity Sewage Treatment Plant (STP) and Main Pumping Station (MPS) based on Activated Sludge Process(ASP)/Sequential Batch Reactor (SBR) Technology and 30 MLD capacity Tertiary Treatment plant and all other works contingent thereto including design, construction of Civil Works, Supply of Mechanical, Electrical and Instrumentation Works, Erection, Testing, Commissioning alongwith operation and maintenance for 72 months after stabilization period of 90 days on turnkey basis at Village Behrampur, Gurgaon. Pursuant to the said invitation, respondent No.1 issued bid documents for the project which were made available at its website. The petitioner-company filed its bid for the project through online submission as well as submission of physical documents on 21.1.2012 and 24.1.2012 respectively alongwith necessary documents within the stipulated period. Vide letter dated 31.1.2012, respondent No.1 sought clarification from the petitioner on certain issues. The petitioner replied to the said letter and submitted the documents as required. On 3.2.2012, Annexure P.4 the petitioner was informed that its bid had been rejected but no reasons were communicated. During the course of meeting with the officials of respondent No.1, the petitioner was orally informed that its bid was rejected since it did not qualify the criteria of never having been blacklisted by any government authority. According to the petitioner, earlier, it had bid for a project of Delhi Jal Board (DJB) for setting up of 70 MGD Kalyanpuri Pumping Station. The petitioner was in discussion with two pump suppliers viz. Grundfos and ITT Water and Wastewater LLC for providing technical assistance in relation to the said project. The petitioner first tied up with ITT Water and Wastewater LLC but subsequently, this firm refused to endorse Memorandum of Understanding on stamp paper and also refused to provide original Memorandum of Understanding duly signed by them on their letter head. Consequently, the petitioner entered into a Memorandum of Understanding with Grundfos on 3.8.2010 and submitted the same with DJB to fulfil the qualification criteria. On 11.2.2011, the petitioner received a show cause notice from DJB stating that decision had been taken to debar it from participating in the tenders on the ground that it had already forged certain documents to qualify for the project. On 30.5.2011, Annexure P.5, DJB issued circular blacklisting and debarring the petitioner from participating in any tender for a period of one year for submitting forged documents for Kalyanpuri project. Thereafter, the petitioner submitted various representations before DJB. Ultimately, DJB reviewed its decision and withdrew the debarment vide letter dated 11.8.2011, Annexure P.6. Inspite of that, respondent No.1 rejected the bid of the petitioner vide impugned notice dated 3.2.2012, Annexure P.7. Hence this petition.
(3.) NOTICE of the petition was issued. Separate written statements have been filed on behalf of respondent Nos. 1 & 2 on one hand and respondent No.3 on the other. In the reply filed on behalf of respondent Nos. 1 and 2, the averment regarding withdrawal of the action for debarment of the petitioner on 11.8.2011 has been disputed. It has been stated that the order dated 30.5.2011 had never been withdrawn vide Annexure P.6 but the period had been reduced after review from one year upto the date of issuance of the review letter. It has been further stated that financial bid of the petitioner was never opened. As regards the averment of the petitioner that financial bid had been opened on 3.2.2012, it has been submitted that as per the information available on the website, the message shown is "Financial/Price Bid cancelled or Rejected Bid.", Annexure R.2. According to respondent Nos. 1 and 2, the petitioner seems to have created a forged web site/portal of HUDA to show that its commercial bid was opened. In this regard, the petitioner has produced Annexure P.9 with the writ petition. On enquiry, it has been found that the petitioner has committed cyber crime by creating/forging a web site/portal of HUDA. As regards the prayer of the petitioner for quashing of Clause 3.1.7 of the Bid document, Annexure P.1, it has been stated that the petitioner had accepted each and every term and condition of the tender document by signing the same. It is now estopped from challenging the said clause. It is also submitted that the petitioner was earlier awarded a contract for design, supply, construction, installation etc. for a period of three years. The petitioner delayed the said project as a result of which penalty was imposed upon it by HUDA. A show cause notice dated 29.3.2012, Annexure R.4 was also issued by Haryana State Pollution Control Board, Gurgaon to the petitioner under Section 33A of Water (Prevention and Control of Pollution) Act, 1974 as the samples were not found in accordance with the specified standards. It has been further submitted that in view of clause 3.1.10, the petitioner was not eligible for allotment of tender as the performance of the applicant for execution of similar work in HUDA was also required to be considered. On these premises, prayer for dismissal of the petition has been made.;