High Court · 2025

Heard Mr. Vikas Bahuguna, learned counsel for t he pet it ioner, Mr. S.S. Chauhan, learned counsel for respondent Nos. 1, 2 and 4 and Ms. Raj ni Supyal, learned Brief Holder for t he St at e of Ut t arakhand/ respondent No. 3.

2. The short point t hat is canvassed before t his Court is t hat t he respondent s have m oved for re- t ender on t he ground t hat t he bids by t he t w o surviving bidders is hit by “ conflict of int erest ” clause.

3. Pet it ioner has prayed t hat his t echnical bid be accept ed and furt her t he financial bid of t he pet it ioner firm be considered.

4. Learned counsel for respondent Nos. 1, 2 and 4 has placed before t he Court t he Manual On Procurem ent And Cont ract Managem ent For PMGSY Rural Road Proj ect s. Chapt er 3 Clause 3.3 deals wit h “ conflict of int erest ” . Clause 3.3.1 reads as under: “ 3 .3 Co n f l i ct o f I n t e r e st

3.3.1 During t he procurem ent process, t he Em ployer would need t o exam ine each bid from t he point of view of ensuring t hat no bidder has a conflict of int erest . Clause 3.4 of t he I TB already alert s all t he Bidders in t his respect . A bidder w ould be considered t o have a conflict of int erest w it h one or m ore part ies in t he bidding process in t he follow ing sit uat ions: ( a) t hey have one or m ore cont rolling part ner( s) in com m on; or ( b) t hey receive or have received any direct or indirect subsidy from any of t hem ; or t hey have ( c) purposes of t his bid; or t he sam e legal represent at ive ( d) t hey have a relat ionship wit h each ot her, direct ly or t hrough com m on t hird part ies, t hat put s t hem in a posit ion inform at ion about or influence on t he Bid of anot her Bidder, or influence t he decisions of t he Em ployer regarding t his bidding process; or t o have access t o ( e) a Bidder part icipat es in m ore t han one bid in t he bidding process for a package. Part icipat ion by a Bidder in m ore t han one Bid for a package w ill result in t he disqualificat ion of all Bids in which t he part y is involved. However, t his does not lim it t he inclusion of t he sam e subcont ract or in m ore t han one bid; or ( f) a Bidder or any of it s affiliat es part icipat ed as a consult ant t he design or t he preparat ion of t echnical specificat ions of t he cont ract t hat is t he subj ect of t he Bid; or a Bidder, or any of it s affiliat es has been hired ( or is proposed t o be hired) by t he Em ployer as Engineer for t he cont ract .….”

5. One of t he condit ions is t hat if t w o bidders have a relat ionship wit h each ot her, direct ly or t hrough com m on t hird part ies; or, if t hey have one or m ore cont rolling part ner( s) in com m on; or if t hey receive or have received any direct or indirect subsidy, et c. et c., t he sam e is const rued t o const it ut e a conflict of int erest and such bidders st and disqualified.

6. Learned counsel for t he pet it ioner does not deny t his fact . I n fact , he would fairly cont end t hat t he t w o surviving firm s have com m on part ners.

7. Learned counsel for t he pet it ioner w ould subm it t hat t his fact of bot h bidders, having com m on part ners had been m ade know n t o t he respondent s a year ago, but no act ion was t aken, and hence, t he decision now t o re- t ender t he works is vit iat ed. The subm ission is fallacious. Merely because t he int im at es or discloses t he disqualificat ion he suffers in t erm s of t he condit ions of cont ract , it would not const it ut e a condonat ion of t he disqualificat ion nor any delay in act ing am ount t o waiver of t he condit ions of t he cont ract . These are eligibilit y condit ions and are t hresh- hold bar t o even subm it t he bid and m erely delay in passing an order rej ect ion of t he bid would not const it ut e a waiver of t he eligibilit y crit eria.

8. I n t hat view of t he m at t er, t he decision of t he respondent s t o act in accordance wit h law needs t o be appreciat ed.

9. Accordingly, t he writ pet it ion being bereft of subst ance or m erit s st ands rej ect ed.

10. I t is m ade clear t hat rej ect ion of t he writ pet it ion w ill not com e in t he way of t he pet it ioner if he desires t o part icipat e in t he re- t ender.

11. Pending applicat ion, in any, also st ands disposed of. ( A l o k M a h r a , J) ( G. N a r e n d a r , CJ)

06.03.2025 06.03.2025 Rat hour