The Bombay High Court allowed a petition praying that the petitioner be permitted to participate in the tender process. The Court observed that in absence of any order of blacklisting being suffered by the petitioner, it cannot be prevented from participating in the tender process on that ground.
Brief Facts:
By the communication dated 30.12.2022, issued by the Water Supply and Sanitation Department of the State Government, it was informed that the proposal for blacklisting the petitioner was under consideration. Based on this communication, one of the bids of the petitioner was held non-responsive and the petitioner was not permitted to participate in the other bids pursuant to the tender notice floated by respondent No.2.
The Zilla Parishad had issued a tender notice inviting bids for about 10 works. The petitioner responded to the said invitation and submitted its bid. The petitioner’s bid was not opened on the ground that the instructions from the State Government in the matter of blacklisting the petitioner were awaited.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner argued that, as per Clause 15 of the tender document, if a Contractor is blacklisted/barred from participating in a tender or his registration is suspended, he is liable to be disqualified. A bidder is required to submit a self-declaration that he is not blacklisted by any Government Department/Government Local Body or Government Undertaking.
The Learned Counsel contended that since there was no order of blacklisting as of date, the petitioner submitted such an undertaking. Merely on the basis that it is proposed to be blacklisted, the petitioner cannot be prevented from participating in the tender process.
Contentions of the Respondent:
The learned Counsel of the Respondent argued that in view of communication received by the Zilla Parishad on 30.12.2022, as the process of blacklisting the petitioner was underway, the petitioner was not qualified to participate in the tender process. There were about three crimes registered against the petitioner and considering the seriousness of the same, the Zilla Parishad was justified in debarring the petitioner.
Observations of the Court
The
Court observed that it is undisputed that as of date, there is no order of blacklisting passed against the petitioner. The process to blacklist the petitioner is stated to be under consideration of the concerned authority. In an appropriate case, the action of blacklisting may be justified. However, the Court observed, it is to be kept in mind that unless there is an order of blacklisting, a bidder is entitled to participate in the tender process unhindered.The declaration that a bidder has to submit is an undertaking that an order of blacklisting/bar from participating in the tender process has not been passed against him. This presupposes that an order of blacklisting is in existence. However, in the present case, the proposal for blacklisting the petitioner is pending with the State Government. Thus, the Court observed, in absence of any order of blacklisting being suffered by the petitioner, it cannot be prevented from participating in the tender process on that ground.
The decision of the Court:
The Bombay High Court, allowing the petition, held that the petitioner is entitled to participate in the tender process. The Zilla Parishad shall consider the petitioner’s bid in accordance with the tender notice and its bids shall not be rejected only because of the communication dated 30.12.2022.
Case Title: M/s. Nanak Construction vs The State of Maharashtra & Ors.
Coram: Hon’ble Justice A.S. Chandurkar and Hon’ble Justice Vrushali V. Joshi
Case no.: WRIT PETITION NO. 16 OF 2023
Advocate for the Petitioner: Mr. Abhay Sambre
Advocate for the Respondent: Mr. S.M. Ghodeswar and Mr. P.K. Sathianathan
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