Design and Planting Forum V. U.T of J&K and Ors.

WP(C)/877/2022

AI Insights

The case involves M/S Design and Planting Forum, the petitioner, who challenged the decision of the Technical Bid Evaluation Committee, which declared them non-responsive in a bid evaluation process. The committee's decision was based on the petitioner's failure to upload the Balance Sheet and Profit and Loss statements for the years 2016-2017 to 2019-2020, as required under the NIT clause 3(n). The petitioner argued that the submission of the last five years' Profit and Loss statements was an ancillary condition and did not constitute a material deviation from the bidding documents. However, the court found that the requirement was essential and directly related to the financial capacity and experience in handling similar works, thus upholding the committee's decision.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 693381 (HC-SRINAGAR)
• Appeal Type: Others
• Pronouncement Date: 27-04-2022
• Assessment Year: misc
• Laws Referred To: NIT clause 3(n), Clause 1(Q), Clause 2.15(d)
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: Q R SHAMAS
• Keywords: Financial capacity; Non-responsive; Technical evaluations; Bid evaluation; Material deviation
• Section: 3(n); 1(Q); 2.15(d)

Judgement Text

" S. No. 130 Supplementary list 3 IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) 877/2022 CM 2169/2022 M/S Design and Planting Forum …Petitioner(s) Through: Mr. Q.R. Shamas, Adv. Vs. U.T of J&K and Ors. ...Respondent(s) Through: None CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE ORDER 27.04.2022 1. The petitioner is aggrieved and has challenged the technical evaluations summary-sheet prepared by the Technical Bid Evaluation Committee, headed by Chief Engineer PWD (R&B) Kashmir, on 22nd April, 2022, whereby, the petitioner along with few other consultancies have been declared non-responsive. The petitioner has been declared non-responsive in the evaluation of the bid for the reason that he had not uploaded Balance Sheet and Profit and Loss statements for the years 2016-2017 to 2019-2020, as required under NIT clause 3(n). It may be pointed out that the Executive Engineer, PWD (R&B) Division, Handawara, vide e-NIT No. 86 of 2021-2022 dated 15th of March, 2022, invited. Expression of Interest (EOI) was for and on behalf of Lieutenant Governor of Union Territory of J&K. Apart from other terms and conditions, the intending bidder was supposed to upload Income Tax Return certificates supported with Profit and Loss statements for the last five financial years. This is so provided in clause 3(n) of the NIT. As is claimed by the petitioner, he submitted Income Tax certificates, but only the last years Income Tax certificate was supported with profit and loss statements. It is argued by the learned counsel for the petitioner that there was no requirement to submit last five years Balance Sheets, as is noted by the Technical Bid Evaluation Committee. It is the argument of the learned counsel for the petitioner that the condition of submitting five years Profit and Loss statements was an ancillary condition and, therefore, did not amount to any material deviation or reservation from the terms and conditions and specifications of the bidding documents. 2. Heard learned counsel for the petitioner and perused the material on record. I find no merit in the submission made by the learned counsel for the petitioner. As is apparent from the NIT, in order to qualify, all bidders were required to upload copies of the documents detailed in clause 3. The bidders were also supposed to possess experience of having independently provided comprehensive Architectural Consultancy Services project cost: Rs. 255.00 crores. A bidder was also required to have three similar completed works costing not less than the amount equal to 40% of cost or two similar completed works costing not less than the amount equal to 80% of the estimated cost. 3. It was further provided that if the bidder would not fulfill the essential technical capability, his bid would be rejected as non-responsive. This is clear from clause 1(Q) of the instructions to bidder. Viewed thus, the condition laid down in clause 3(n) which directly relates to the financial capacity and experience in handling similar works cannot, by any stretch of reasoning be said to be ancillary condition of contract. Clause 2.15(d) makes it clear that any deviation or reservation from the terms, conditions and specification of bidding documents which effects in any substantial way, inconsistent with bidding documents, the employers right or the bidders obligation under the contract will be treated as a material deviation or reservation. 4. The contention of learned counsel for the petitioner that submission of five years Balance Sheet was not part of terms and conditions of contract, would not help the petitioner for the reason that petitioner who was obliged to submit Profit and Loss statement along with his Income Tax Return Certificate for the last five years, had failed to upload them. The respondents were, therefore, well within their rights to declare his technical bid as non-responsive. 5. For the foregoing reasons, I find no merit in this petition. Same is accordingly dismissed. (SANJEEV KUMAR) JUDGE SRINAGAR 27.04.2022 “Mir Arif” "