S. Chandrashekhar, J. - (1.) AGGRIEVED by communication dated 11.04.2015 whereby, the petitioner's bid has been rejected, the petitioner has sought a declaration that Clause 2.2.8 of the R.F.Q to the extent it debars a contractor from participating in tender on the ground of termination of contract by any public entity for breach by the contractor, is arbitrary. Further prayers seeking quashing of proceeding of the Tender Committee dated 09.04.2015 and a direction upon the respondent No. 2 to consider the petitioner's bid by opening the price bid of the petitioner -company have also been made in the writ petition.
(2.) PURSUANT to notice inviting tender dated 19/21.01.2015 for Strengthening and Widening/Reconstruction of Chattarpur -Japla (MDR -127) Road" the petitioner -company submitted its bid. In connection with NIT dated 16.09.2014 a notice was issued on 09.01.2015 requiring the petitioner to submit its response to Clause 2.2.8 of the Tender Document. It is stated that it was brought to the notice of the respondent -authority that Contract No. BSHP -II/2 (SH -81) dated 12.08.2011 has been terminated by the Bihar State Road Development Corporation Limited. In response to the said notice, the petitioner submitted its reply dated 12.01.2015 stating that the Dispute Resolution Board has passed an order in favour of the petitioner -company. The petitioner apprehending its disqualification in terms of Clause 2.2.8 of the R.F.Q, approached this Court in W.P.(C) No. 453 of 2015 and W.P.(C) No. 562 of 2015 which was withdrawn with liberty to pursue its reply dated 12.01.2015. Mr. Sunil Kumar, the learned Senior counsel for the petitioner submits that letter dated 11.04.2015 discloses non -consideration of plea taken by the petitioner -company. The communication contained in letter dated 11.04.2015 is cryptic which discloses complete non -application of mind by the Evaluation Committee. It is further submitted that the embargo contained in Clause 2.2.8 of "Request for Qualification" is completely arbitrary in as much as, mere termination of the contract by a public entity has been made a ground for disqualifying a person from consideration. It is submitted that Clause 2.2.8 of the R.F.Q to the extent it disqualifies the petitioner -company from participating in any of the tenders in the State of Jharkhand on the ground of termination of agreement by any public entity, is in the teeth of Article 14, 19(1)(g) and 21 of the Constitution of India and therefore, liable to be quashed. The learned Senior counsel submits that alternatively the petitioner has taken a plea that the expression "nor have it any contract terminated by any public entity for breach by such applicant or member" has to be read in consonance with the earlier part of Clause 2.2.8 otherwise, the condition that the applicant in the last 3 years has failed to perform any contract which should be evidenced by imposition of a penalty by an arbitral or judicial authority or a judicial pronouncement or arbitration award, would be rendered otiose. Since there is no arbitral or judicial pronouncement against the petitioner -company, the restriction contained in Clause 2.2.8 is not attracted in the case of the petitioner.
(3.) AS against the above, Mr. Ajit Kumar the learned Additional Advocate -General submits that in none of the proceedings initiated by the petitioner -company, notice dated 25.08.2014 by which the agreement with the Bihar State Road Development Corporation Limited was terminated, has been challenged. No Court/Authority has passed an order staying the operation of notice dated 25.08.2014 and therefore, as long as the order of termination contained in notice dated 25.08.2014 remains on record, prohibition contained in Clause 2.2.8 of the R.F.Q operates with full force against the petitioner. Referring to the D.B. decision dated 26.01.2015 and order passed by the Civil Court, the learned Additional Advocate -General submits that notice dated 25.08.2014 has not been challenged by the petitioner and the order passed in T.S. No. 5596 of 2014 is confined to invocation of bank guarantee.;