Ori HC | Court not to interfere with judgment of expert consultant on issues of technical qualification; Mistake found subsequently is not beyond correction in technical bidding

Orissa High Court: A Division Bench of S.K. Mishra and A.K. Mishra, JJ. dismissed the instant writ petition giving no relief to the petitioner observing tender bid does not suffer from any arbitrary, perverse or malafide action.

The brief facts of the case are a tender notice was invited under National Competitive Bidding through e-procurement for construction of HL Bridge Lune-Karandia on Tikanpur-Dalanta Stand works by opposite party No. 2, the eligibility condition being  that the intending tender should have the total financial turn over in respect of the Civil Engineering Works of an amount not less than the amount put to tender during any three financial years taken together of the last proceeding five financial years (starting from 2013-14 to 2017-18 excluding the current financial year). The financial turn over certificate was required to be submitted from the Charted Accountant showing clearly the financial turn over financial year wise failing which, the tender would summarily be rejected. The petitioner, a super class contractor, submitted his bid application online with documents including Annual Turn Over certificate from Charted Accountant showing approximate cost Rs 45, 70, 54,874.

Counsel Prasanna Kumar Parhi, B.K. Pardhi, J. Mohantyand D. Gochhayat for petitioners submitted that the petitioner qualified after evaluation of the technical bid and was accordingly informed about his qualification. It was further averred that the petitioner’s firm quoted the lowest amount amongst four bidders only to be intimated later that tender had been rejected on grounds of disqualification. Such an action was averred to be illegal and violative of statutory provision of law. Hence the instant writ petition was filed to quash the letter disqualifying the petitioner and to allow the petitioner to execute the work.

Opposite parties submitted that the petitioner was not eligible as he did not meet the total turnover required and by mistake he was found eligible which was rectified after receiving a complaint from opposite party 5 and such bonafide mistake was communicated without any malafide intention.

The Court observed that the estimated cost of the work being Rs 45,70,54,874 it is required to show the total financial year turnover in respect of Civil Engineering works of an amount not less than the above amount during the three financial years and the amount furnished would not meet the eligibility requirement and therefore a mistake was committed while evaluating the technical bid which was detected by the Tender Evaluation Committee. The Court relied on a judgment of Municipal Corpn., Ujjain v. BVG (India) Ltd.; (2018) 5 SCC 462 held that if a mistake with regard to eligibility is detected subsequently, it cannot be said that the mistake is beyond correction unless it is done with malafide, arbitrariness or perversity. [Parida Constructions v. State of Odisha, 2020 SCC OnLine Ori 64, decided on 03-03-2020]

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