Bela M. Trivedi, J. - (1.) THE petitioner, by way of present petition, has challenged the action of the respondent No. 2 in evaluating the Technical bids submitted by the petitioner for the package No. 1(TM -01), package No. 2(TM -02) and package No. 3 (TM -03) for the Rajasthan Rural Water Supply & Fluorosis Mitigation Project (Nagaur)(hereinafter referred to as 'the said project'), as substantially non -responsive to the requirements of Bid documents. The petitioner has also challenged the legality of Clause 42.5 of the Instructions to the bidders (ITB) contained in the Bid documents.
(2.) THE short facts giving rise to the present petition are that the petitioner is a company incorporated in Spain under the law of Spain having registered office at Spain as well as at Mumbai. The Government of India having received a loan from Japan International Cooperation Agency(JICA) under the loan agreement dated September 28, 2012 for the said project, and the Government of Rajasthan being an implementing agency for the said project, had invited online bids under the International Competitive Bid procedure on 25/11/2014 from the eligible bidders for three transmission projects i.e. IFB No. 02/2014 -15 (TM -01), IFB No. 03/2014 -15(TM -02) and IFB No. 04/2014 -14(TM -O3). The conditions and requirements for all the three packages were contained in the Bid documents - Annexure -1. According to the petitioner, it had submitted the Technical Bids containing all the documents as required, along with the Financial Bids on March 10, 2015 separately for all the three packages and had also deposited the requisite bid security amount for the same. It appears that the concerned respondent vide the letters dated 24 and 26 March, 2015 had sought clarification from the petitioner on certain issues for the evaluation, and the petitioner vide the letters dated 31st march, 2015 had responded to the said queries raised by the respondent and furnished the documents sought for by the respondent. According to the petitioner, though it had complied with all the requirements of the three packages, it was informed by the respondent No. 2 vide the letters dated 21st May, 2015 (Annexure -5 collectively) that the Technical bids submitted by the petitioner were found to be substantially non -responsive to the requirements of the Bid documents for all the three packages. The said decisions contained in the said letters are under challenge in the present petition. The respondents have filed the reply resisting the petition disputing and denying the allegations made in the petition, to which the petitioner has filed the rejoinder.
(3.) THE learned Senior Counsel Mr. Kamlakar Sharma for the petitioner taking the Court to the various clauses and instructions contained in the Bid documents vehemently submitted that the action of the respondent No. 2 in evaluating the Technical bids submitted by the petitioner as substantially non -responsive to the requirements of the Bid documents was arbitrary and illegal, more particularly when the same was not supported by any reasons. According to him, though the petitioner had made representation to the respondents requesting them to give the reasons for treating the petitioner's Technical bids as substantially non -responsive, the respondents did not respond to the said representation. He further submitted that the Clause 42.5 contained in the ITB permitting the respondents to withhold the reasons for rejecting the Technical bids of the bidders, till the award of contract, is itself arbitrary, illegal and unconstitutional. Placing reliance upon the decision of Apex Court in case of Kranti Associates Private Limited & Anr. v. Masood Ahmed Khan & Ors., : (2010) 9 Supreme Court Cases 496, he submitted that the participating bidders are entitled to the fair, equal and non discriminatory treatment in evaluation of their bids/tenders, and that the fairness in decision could be known only through the reasons. He also relied upon the decision of Apex Court in case of Central Inland Water Transport Corporation Ltd. & Anr. v. Tarun Kanti Sengupta & Ors., : AIR 1986 Supreme Court 1571 to submit that such a clause in the ITB would be opposed to the public policy and deserves to be struck down being arbitrary and unconstitutional. According to him, the settled position of law is that the Courts would set aside the contract, if the parties have not met on equal terms, and when one is so strong in bargaining power and the other is so weak that, as a matter of common fairness, the strong should not be allowed to push the weak to the wall. He further submitted that the respondents being on stronger footing, the bidders had no option but to accept the terms and conditions contained in the Bid documents. Pressing into service the provisions contained in the Rajasthan Transparent in Public Procurement Act, 2012 (hereinafter referred to as 'the said Act'), he submitted that the respondents had acted in violation of the object of the said Act, by not disclosing the reasons and by not remaining transparent in the process of evaluating the bids. He also submitted that even the loan agreement between the JICA and the Government of India did not prohibit the respondents from disclosing the reasons for rejecting the bid of the bidder, and on the contrary it was provided in the Guidelines for Procurement under Japanese ODA Loans that if any bidder who submitted a bid wishes to ascertain the reasons as to why its bid was not selected, the borrower i.e. the Government shall promptly provide an explanation for the same. Lastly, he submitted that the petitioner having complied with all the requirements as contained in the bid documents and there being no deviation in the substantive material, its Technical bids could not have been evaluated as non -responsive to the requirements of the bid documents.;