Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by petitioner challenging order dated 28.11.2014 issued by Tender Inviting Authority of the Jaipur Development Authority, Jaipur, vide which the bid of the petitioner has been rejected during technical evaluation and, the order dated 19.01.2015 by which appeal filed by petitioner under Section 38 of the Rajasthan Transparency in Public Procurement Act, 2012, has been rejected.
(2.) SHRI Anil Mehta, learned counsel for the petitioner, has argued that petitioners No. 1, 2 and 3 are different proprietorship firms. The proprietors of the petitioner firms are citizen of India. Petitioners are 'AA' class Government approved contractors and are registered with the Jaipur Development Authority (for short, 'the JDA'). The JDA issued a tender on 05.08.2014 inviting prospective bids for construction of CC road in Goner village in Zone -9 of the JDA, Jaipur. The estimated costs of the work was Rs. 620.62 lacs. Petitioner firms entered into joint venture agreement with one another for the purpose of participating in the tender process. There was no clear guideline in the JDA with regard to participation in such bids by joint venture and therefore this issue was taken in 61th meeting of the JDA held on 13.10.2012. Therein it was decided to accept joint venture in contract over three crore rupees. Pursuant to that decision, the JDA issued an office order dated 27.02.2013 allowing joint venture bids in three crores and above contract. In point No. 2 of the order dated 27.02.2013, it was decided that in the present context the joint venture tenders should be accepted for works of the value of more than three crores, and that joint venture tenders may be accepted in specific category of works with approval of the competent authority. The petitioner firms participated in the tender process and submitted their bids under joint venture agreement and deposited requisite earnest money through demand draft. The tender evaluation committee has illegally rejected the technical bid of the tenders on the premise that according to Rule 39 of the Rajasthan Transparency in Public Procurement Rules, 2013 (for short, 'the Rules of 2013'), joint venture is permissible only if it is permitted in the bidding document. Learned counsel for petitioners, citing the provisions of Section 6(3) of the Rajasthan Transparency in Public Procurement Act, 2012 (for short, 'the Act of 2012') has submitted that there was no quantity indicated in the tender notice that a joint venture participation is barred and therefore the technical bid of the petitioners could not have been rejected. The respondents have accepted the financial bid at much higher value than the one offered by the petitioners. The rates quoted by the petitioners are approximately less by fifty lacs than the one which has been selected. It is not in dispute that the notice inviting tenders did not indicate that the joint venture bids were permitted in the process of tendering. It is for this reason that the tender evaluation committee disqualified the technical bid of the petitioners with the remark "The firm has submitted the tender in J.V. whereas as per Rule 39 of Rules of 2013 JV is only possible if it is permitted in the biding document. In our tender document provision of JV was not mentioned hence treated as non responsive. The petitioners had approached the appellate authority under Section 38 of the Act of 2012 against aforesaid decision of the tender evaluation committee. The appellate authority has rejected the appeal on the premise that the decision of the tender evaluation committee was approved on thorough examination even by higher committee, which has endorsed the decision of the lower committee. XEn -9 categorically mentioned that in the NIB provision of Joint Venture was not mentioned. If joint venture is to be allowed then specifically JDA has to mention all terms & condition like number of joint venture partners, their sharing ratios, information about lead partner, technical & financial qualification sharing pattern etc. In this case as provision of joint venture was not mentioned in the NIB (notice inviting bid) so no details/condition of joint venture was mentioned in the tender document. The petitioner firm was therefore disqualified by competent committee of the JDA as per Rule 39 of the Rules of 2013. Rule 39 clearly provides that a bidder may be a natural person, private entity, government -owned entity or, where permitted in the bidding documents, any combination of them with a formal intent to enter into an agreement or under an existing agreement in the form of a Joint Venture. This Rule further provides that in the case of a Joint Venture, all parties to the Joint Venture shall sign the bid and they shall be jointly and severally liable; and that a Joint Venture shall nominate a representative who shall have the authority to conduct all business for and on behalf of any or all the parties of the Joint Venture during the bidding process. In the event the bid of Joint Venture is accepted, either they shall form a registered Joint Venture company/firm or otherwise all the parties to Joint Venture shall sign the Agreement. Sub -rule (2) of Rule 39 provides that a bidder should not have a conflict of interest in the procurement in question as stated in Rule 81 and the bidding documents.
(3.) CONTENTION that since participation of bidders of any category was not restricted, participation of joint venture also could not be denied and, therefore, according to Section 6(3) of the Act of 2012, they have to be necessarily allowed to participate, cannot be accepted. Section 6(3) provides that the procuring entity, when inviting the participation of bidders in the procurement process, shall declare whether participation of bidders is limited pursuant to this section and on what ground and any such declaration may not ordinarily be later altered. Thus, this provision having not permitted joint venture, it cannot be deduced therefrom that there was only limited participation because in that case, it will through bid open to all those, who are not other indicated in NIB to participate. Sub -section (3) rather strengthen the claim of respondents because it shows that having limited participation, such declaration may not ordinarily be later altered. Respondents have justified that they have declined to allow joint venture participation of the bidding process because they did not so indicate in NIB. If a joint venture participation is permitted, there are lot of other requirements, which the appellate authority has mentioned in the impugned order, namely, to specifically mention all the terms and conditions like number of joint venture partners, their sharing ratios, information about lead partner, technical & financial qualification sharing pattern etc.;