1. Heard learned counsel for the petitioner appellant, learned A.G. for the State as also learned counsel for the respondent No. 5.
2. The petitioner appellant is aggrieved by the Judgment dated 10.8.2017 passed by the Hon'ble Single Judge in W.P.(C) No. 3103 of 2017, whereby the writ application filed by the petitioner appellant for quashing the decision of the Tender Committee dated 25.5.2017, as contained in Memo No. 2929(S) WE dated 29.5.2017, declaring the technical bid of the petitioner appellant as non-responsive, which related to widening and strengthening of Bundu Sonahatu-Jamudag-Jariya Road (MDR-026) from Km. 0.00 to 30.005, was dismissed by the Hon'ble Single Judge.
3. Today this case is listed for orders on two interlocutory applications, but after hearing the parties, we are disposing of the entire Letters Patent Appeal.
4. First interlocutory application, being I.A. No. 6697 of 2017 is with respect to seeking exemption from filing the certified copy / copy of the Judgment dated 10.8.2017 passed by the Hon'ble Single Judge. Since the certified copy of the said Judgment has become available and has been brought on record, this interlocutory application, I.A. No. 6697 of 2017, has become infructuous and is disposed of as such.
5. Second interlocutory application, being I.A. No. 7802 of 2017 is for staying the operation of the letter No. 668 dated 21.8.2017, by which, the work order was allotted in favour of respondent No. 5. It is submitted by learned counsel for the petitioner appellant that the petitioner appellant is no more interested in the said work order, and accordingly, he shall not press this interlocutory application. As such, I.A. No. 7802 of 2017 stands dismissed as not pressed.
6. Now the only question that remains to be decided is the legality or otherwise of the Judgment dated 10.8.2017 passed by the Hon'ble Single Judge in W.P.(C) No. 3103 of 2017. In the said writ application, the main grievance of the petitioner appellant was with respect to Clause - 4.8 of the Standard Bidding Document (SBD) for Procurement of Civil Works, issued by the Government of Jharkhand, in its Road Construction Department. Clause-4.8 thereof reads as follows:-
"4.8. Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have:-
- made misleading or false representations in the forms, statements and attachments in proof of the qualification requirements; and / or
- record of poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failures etc.; and / or
- participated in the previous bidding for the same work and had quoted unreasonably high bid prices and could not furnish rational justification to the employer. "
7. The petitioner appellant was also one of the bidder in the contract, which related to the widening and strengthening of Bundu Sonahatu- Jamudag-Jariya Road (MDR-026) from Km. 0.00 to 30.005, work order of which has now been issued in favour of respondent No. 5. The technical bid of the petitioner appellant was declared non-responsive in view of Clause - 4.8 of the Standard Bidding Document (SBD), stating that there was a litigation history against the petitioner appellant, i.e., one F.I.R. was lodged against the petitioner appellant in the State of Chhattisgarh, wherein there is allegation that in connivance of the Government officials, the amount of Rs. 4 crores relating to the public fund was siphoned away. The said F.I.R. is said to have come in the way of the petitioner appellant and he was debarred from his technical bid and was disqualified. It is submitted by learned counsel for the petitioner appellant that this F.I.R. is of the year 2015 itself, and the case is still under investigation. Some quashing applications have been filed in the High Court of Chhattisgarh for quashing the said F.I.R., and one such quashing application is said to be filed by the petitioner appellant also, which fact however, is disputed by the learned counsel for the respondent No. 5.
8. Be that as it may. The Hon'ble Single Judge while dismissing the writ application, gave the following observations:-
"46. The work order was with respect to widening and strengthening of the road from Bundu Sonahatu-Jamudag-Jariya Road(MDR-026) from km 0.00 to 30.005 and the Tender Committee realised that the said road was for the public purpose and the public at large is interested in the quality of the work. The allegation made in the FIR instituted against the petitioner is that he, in connivance with the government officials, had siphoned Rs.4 Crores to public fund. The Committee must have considered this aspect and accordingly they took a decision declaring the technical bid of the petitioner as non-responsive. It is well settled that price is not the sole criteria for awarding a contract. It must be one of the criterion but the past record of the tenderers and the quality of goods and services which have been rendered by the tenderers in the past are also the factor to be considered in awarding of contract. If the reputation of a tenderer is tainted then the employer will definitely not award the contract to such a person as this could bring flake of the public at large and hence would only lead to further litigation." (Emphasis supplied).
9. Learned counsel for the petitioner appellant drew our attention towards a letter dated 30.9.2016 as contained in Memo No. 5611, issued by the Public Works Department, Government of Chhattisgarh, Raipur, brought on record as Annexure-5/1 to the Memo of Appeal, which is with respect to the aforesaid F.I.R., making the clarification that in the said F.I.R., there is no complaint with regard to quality and quantity of work, as also time over run, rather the F.I.R. relates to sanction of higher amount with respect to Non SOR items. It was further clarified that the petitioner appellant has not been blacklisted or debarred from taking part in future bids. It is submitted that in the State of Chhattisgarh, as also in the State of Jharkhand, the said F.I.R. has not come in the way of the petitioner appellant earlier, and even in the State of Jharkhand, work order had been issued in favour of the petitioner appellant in the year 2016, which is in the verge of completion.
10. It is apprehended by the petitioner appellant that the writ application, decided by the Hon'ble Single Judge shall be coming in the way of petitioner appellant in the future contracts and this what is disturbing the petitioner appellant.
11. We have also heard learned Advocate General for the State and also learned counsel for the respondent No. 5.
12. Para-46 of the Judgment passed by the Hon'ble Single Judge, as quoted above, though mentions that the F.I.R. was lodged against the petitioner appellant alleging that he, in connivance with the Government officials, had siphoned Rs.4 Crores to public fund, but the other observations made therein (shown in bold letters) are the general observations, and not specific against the petitioner appellant, and we do not intend to interfere with the same.
13. At the same time, we find that only lodging of the F.I.R. against the petitioner appellant in the State of Chhattisgarh should not come in the way of the petitioner appellant for consideration of his case in future contracts, if any, particularly in view of the letter dated 30.9.2016, issued by Public Works Department, Government of Chhattisgarh, Raipur (as referred above). We never intend to say that this F.I.R. should not be taken into consideration while dec
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iding the bids in any future contract, rather we only intend to say that while considering the F.I.R., the letter issued by the Government of Chhattisgarh should also be taken into consideration. It shall be for the State of Jharkhand to take an independent decision while deciding the future contracts, in which, the petitioner appellant may be participating, whether on the basis of the said FIR, clarified by the letter dated 30.9.2016 as aforesaid, the technical bids submitted by the petitioner appellant, in future contracts, if any, shall be declared as non-responsive or not. 14. We do not find any illegality in the impugned Judgment dated 10.8.2017 passed in W.P.(C) No. 3103 of 2017 by the Hon'ble Single Judge. As such, this Letters Patent Appeal stands disposed of with the observations / directions / clarifications as above.