Alok Sharma, J. - (1.) THE matter comes up on the second stay application. With the consent of the counsel for the parties, the petition is being disposed of.
(2.) THE case of the petitioner -Company is that its bid in pursuance to the NIT dated 20.10.2014 for augmentation of water Supply Scheme for Bhiwadi Town in Rajasthan (hereinafter "work") has been arbitrarily rejected vide order dated 10.03.2015 despite it fulfilling the requisite technical qualification as prescribed. It has been submitted that the petitioner -Company had itself completed one work of similar nature as was required under the NIT in issue as PHED's contractor to an extent of Rs. 29.69 crores and another "work" as sub -contractor of Nagarjuna Construction Company to an extent of Rs. 32.30 crores as evident from the certification dated 14.09.2009 issued by Nagarjuna Construction Company, submitted with the bid. This satisfied the technical criteria of the NIT in issue which inter alia required that three similar works aggregating to Rs. 18.16 crores ought to be executed by the bidder in last seven years, or in the alternative two similar works to an extent of Rs. 22.70 crores or one similar work amounting to Rs. 36.31 crores ought to be executed within the preceding seven yeaRs. Yet the terms and conditions of the eligibility criteria were apparently misconstrued by the respondents in overlooking the second work to an extent of Rs. 32.30 crores executed by the petitioner -Company as a subcontractor of Nagarjuna Construction Company who had been engaged by the respondents themselves for the Regional Water Supply Scheme for 45 villages from Nathdwara Head works of Bagherika Naka Project on single Responsibility Turnkey Basis on 27.01.2007 for a consideration of Rs. 35.50 crores (hereinafter "the Udaipur [works"). It was submitted that the conditions of NIT dated 20.10.2014 did not distinguish the nature of experience with reference to the manner of the "works" being obtained/executed. Experience whether as PHED's contractor or as a sub -contractor of a third party was valid and ought to have been considered to be sufficient for fulfilling the prescribed technical criterion. Counsel for the petitioner -Company has submitted that as the petitioner's bid was the only valid bid in response to the NIT dated 20.10.2014, it should have been declared successful and the petitioner -Company granted the contract. In the circumstances, the order rejecting the bid passed on 10.03.2015 is arbitrary and be set aside. Further the second NIT dated 20.09.2015 for the same work be held to be vitiated by arbitrariness and mala fides in the facts of the case. Ground of public interest based on loss of public revenue in the event the subsequent NIT dated 20.09.2015 is allowed to be proceeded with, has also been agitated. Per contra, counsel for the respondents submitted that the contract qua Udaipur works prohibited assignment or sub -letting without prior written permission of the respondent -Department. No assignment of the Udaipur works by Nagarjuna Construction Company to the petitioner -Company was ever allowed in writing. No such permission was sought nor granted by the respondent -Department. In the circumstances, the completion certificate of the said work purportedly issued by Nagarjuna Construction Company to the petitioner -Company qua Udaipur works was of no avail and could not be considered as requisite experience. The petitioner -Company was then found with experience of only one work of similar nature, as the work tendered under NIT dated 20.10.2014 of a value of Rs. 29.69 crores. It has been submitted that thus the petitioner -Company neither satisfied the condition of participation in two contracts of similar nature with the requisite aggregate value of Rs. 22.70 crores nor it have a single work of similar nature with a value of Rs. 36.31 crores as required by the NIT in the alternative. Government counsel further emphatically submitted that "participation" as required under clause 2.4 of the NIT entailed that the one claiming experience ought' to have "participated" in the bidding process, found suitable by the "employer", evidenced by a privity of contract and then executed the said work successfully. Experience from sub -contracting, more so in breach of the contract between the employer and the contractor qua such contract could not be reckoned to be "participation". The requisite experience in the NIT dated 20.10.2014 properly understood was "participation" and was the criterion for technical eligibility. Even otherwise the Executive Engineer of the Udaipur works has denied countersigning completion certificate dated 14.09.2009 qua Udaipur works purportedly issued by the Nagarjuna Construction Company in favour of the petitioner -Company.
(3.) THE further defence of the respondents is that as per Clause 38.1 of Instructions issued to the bidders the employer had reserved the right to accept or reject any bid, and to annul the bidding process and reject all bids at any time prior to contract award. It has been submitted that on a considered decision taken to re -invite the tender, a fresh NIT for the work in issue has been issued on 20.09.2015 in which the petitioner -Company is free to participate. The said decision was neither peremptory, nor arbitrary nor mala fide. It has been submitted that this was so as none of the bidders satisfied the technical criterion as set out in the NIT dated 20.09.2015.;