M/S GREEN EARTH PRIVATE LTD TH ITS DIRECTOR JALBIR SINGH ROOP NAGAR JAMMU V. U T OF J AND K TH COMMISSIONER SECRETARY PMGSY JKRRDA JAMMU AND OTHERS

WP(C)/2668/2022

AI Insights

M/s Green Earth Private Limited challenged the order declaring their bid non-responsive due to the submission of Company Audit Reports for only two years instead of the required five years. The petitioner argued that they had uploaded all necessary documents and that a technical glitch on the portal was the reason for the non-appearance of some documents. The respondents maintained that the bid was rightly declared non-responsive as per the strict compliance required by the SBD. The court examined the submissions, the tender documents, and the relevant clauses of the SBD, ultimately agreeing with the respondents and dismissing the petition.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 690940 (HC-JAMMU KASHMIR AND LADAKH)
• Appeal Type: Others
• Pronouncement Date: 24-08-2023
• Assessment Year: misc
• Other Referred Cases: Central Coalfields Limited & Anr. V/s SLL-SML (Joint Venture Consortium), Laxmi Datt Binwal V. State of Uttarakhand & ors., W.B. Electricity Board V. Patel Engineering Co. Ltd. and others, National High Speed Rail Corporation Limited V/s Montecarlo Limited & Anr., Ghulam Nabi Mir V. UT of J&K and ors., Afcons Infrastructure Ltd. V/s Nagpur Metro Rail Corporation Ltd. and anr., TATA MOTORS LIMITED versus THE BRIHAN MUMBAI ELECTRIC SUPPLY & TRANSPORT UNDERTAKING (BEST) AND OTHERS, Vidarbha Irrigation Development Corporation V/s M/s Anoj Kumar Agarwala and ors., Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Pvt. Ltd. and Ors., Poddar Steel Corpn. v. Ganesh Engg. Works, B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., N.G. Projects Ltd. V/s M/s Vinod Kumar Jain and ors., Maa Binda Express Carrier V. North-East Frontier Railway, Michigan Rubber (India) Ltd. V. State of Karnataka, Directorate of Education v. Educomp Datamatics Limited, Meerut Development Authority v. Assn. of Management Studies
• Laws Referred To: Standard Bid Document (SBD) Clause 4.4 B (a) III (e), Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RAVINDER GUPTA
• Assessee Lawyers: ADITYA GUPTA
• Keywords: Audit report; Non-responsive bid; Technical evaluation; Tender document compliance
• Section: 24(1); 22(6); 4.4 B(a) III (e)

Judgement Text

" HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No.2669/2022 CM Nos.7366/2022, 3789/2023 and 1956/2023 M/s Green Earth Private Limited ….Petitioner(s)/Appellant(s) Through :- Mr. Aditya Gupta, Advocate. V/s UT of J&K and ors. ….Respondent(s) Through :- Mr. Ravinder Gupta, AAG. Coram: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE ORDER ORAL: 01. By this petition, the petitioner has challenged Order No.CEJ/PMGSY/25679 dated 05.12.2022, passed by respondent No.2, whereby bid of the petitioner has been shown as non-responsive on the ground of submitting Company Audit Reports attached for two years instead of last five financial years which is not as per requirement of Standard Bid Document (SBD) Clause 4.4 B (a) III (e). The petitioner is further seeking direction upon the respondents to consider his representations dated 05.12.2022 and 06.12.2022. FACTUAL MATRIX: 02. Respondent No.2 has floated a tender for the contractual work vide e- NIT No.CEJ/PMGSY/714 of 2022-23 dated 27.08.2022 wherein, the petitioner Sr.No. 54 2 states that while uploading the documents on the portal in pursuance of the tender duly complied with each and every clause mentioned in the tender document and rather uploaded more documents than were required just to reflect the financial and the technical standing of the petitioner. 03. On 05.12.2022, vide impugned order, respondent No.2 mentioned the following reasons for the petitioner being declared as non-responsive:- (i) Company Audit Report attached for 02 years instead of last 5 financial years by the 1st JV Partner M/s Green Earth Infrastructure Pvt. Ltd. which is nor as per requirement of SBD Clauses 4.4 B (a) (III) (e) hence non-responsive. 04. It is stated that the petitioner had uploaded all the documents including the company audit report for the required five years but the respondents deliberately chose to oust the petitioner arbitrarily after having found the petitioner eligible previously upon the same set of documents uploaded on the portal. 05. It is stated that the respondents have arbitrarily decided to oust the petitioner and have adopted an arbitrary and mechanical approach of reading the terms and conditions of the Standard Bidding Document (SBD). The respondents have cited Clause 4.4 B (a) III (e) and (f) for declaring the petitioner as non-responsive, after having declared the petitioner responsive with respect to the same work package previously with same set of documents. Clause 4.4 B (a) III (e) of the SBD is reproduced as under : III.Reports on financial standing a) Annual Turnover Certificate from Chartered Accountant for last five financial years (2017-18, 2018-19, 2019-20, 2020-21 and 2021-22) excluding current financial year bearing Unique Document Identification Number (UDIN) of Institute of Chartered Accountants of India with breakup of 3 civil works and total works excluding GST/VAT in each financial year. Clause 4.4 of ITB. Without UDIN the certificate will not be entertained and the bid rejected. b) Income Tax Returns for the last five financial years immediately preceding the bid due date i.e. for the financial year (2016-17, 2017-18, 2018-19, 2019-20 and 2020-21). c) Balance sheet for last five financial years. d) Profit and loss account for last five financial years. e) Company Audit Report (if applicable) for last five financial years. f) Audit Reports under Income Tax Act (3CA/3CB along with 3CD reports) (wherever applicable) for the last five financial years. g) TDS certificate/26AS form downloaded from income tax website for the last five financial years. h) The successful bidder will have to provide the original documents (from a to g) duly certified by a Chartered Accountant before a work is allotted to him. Any certificate issued by the Chartered Accountant should mandatorily bear UDIN.” 06. It is stated that the respondents, in passing the impugned order, failed to consider Clause (h) of the clause 4.4 B (a) III of the SBD and the fact that all the five year‟s company audit report stands uploaded and because of technical glitch on the portal, the report of the petitioner of five years was not available on the portal. Since the impugned order dated 05.12.2022 was passed by the respondents without giving a chance of fair hearing to the petitioner, the petitioner tendered two representations on 05.12.2022 and on 06.12.2022, to consider the case of the petitioner. The petitioner has challenged the impugned order dated 05.12.2022 on the ground that it is an attempt to over reach the 4 powers vested with the respondents in as much as terms and conditions of the tender documents are concerned. 07. It is stated that the respondents have deliberately chosen to ignore sub- clause (h) of clause 4.4 B (a) III of the SBD, which clearly provided that the petitioner being rendered a successful bidder will have to provide original documents duly certified by CA. It is stated that the petitioner has chosen to neglect clause 22.6 of the SBD which categorically provides that the petitioner shall be provided „five working days‟ after the opening of part-I of the bid and before the opening of part-II of the bid for filing reply to the result of evaluation, part-I of the bid. Clause 22.6 is reproduced as under:- “22.6. The result of evaluation of Part-I of the Bids shall be made public on e-procurement systems following which there will be a period of five working days during which any bidder may submit complaint which shall be considered for resolution before opening Part-II of the bid.” 08. Clause 24.1 of Section is reproduced hereinunder:- “24.1. No bidder shall contact the employer on any matter relating to its bid from the time of the bid opening to the time the contract is awarded. If the bidder wishes to bring additional information to the notice of the employer, it should do so in writing.” 09. It is stated that clause 4.4 B(a) III, clause 22.6, clause 24.1 of Section 2 of the SBD, it can be culled out that if in case, the bidder is declared non- responsive, then the bidder shall have a window of five working days to approach the respondents and rectify any curable irregularity by physically provide the additional original documents for rectifying the irregularity and thereby restoring the eligibility and it is also to rectify the technical flaws that 5 exist on the portal which do not allow larger size of files to be uploaded beyond a certain size limit. 10. Per contra, reply stands filed by the respondents. 11. It is stated that a bare perusal of clause 4.4 B (a) III (e) clearly mentions that the scanned copies of company audit report (if applicable) for the last five financial years must be uploaded but in the instant case, audit report for only two financial years instead of five financial years have been uploaded and, as such, the bid of the petitioner was rejected during technical evaluation i.e, during evaluation of part-I of the bid by the Bid Evaluation Committee. 12. It is stated that the power exercised by the Government and its instrumentalities in the award of contract, is subject to judicial review at the instance of an aggrieved party, submission of a tender, in response to a notice inviting tenders, is merely an offer which the State or its Agencies are under no obligation to accept. All that the participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. 13. It is stated that in terms of clause 4.4 B (a), the alleged copy of the Company Audit Report for the last five years as enclosed by the petitioner as Annexure-VI at page 68 onwards with his writ petition is not the same which stands uploaded on the portal for the said tender. 14. The respondents have also placed on record the Company Audit Report which stands uploaded on the portal as Annexure R-3 with the reply. 15. It is stated that in pursuance to the summary of technical evaluation report, the petitioner submitted its complaint vide reference No. GEIPL/PMGSY/32 dated 05.12.2022 and vide reference No. GEIPL/PMGSY/2022-23/399 dated 06.12.2022. The same was considered by 6 Bids Evaluation Committee as per clause 22.6 of the instruction to the bidder of the SBD but the decision with regard to the representation will be declared when Part-II of the bid will be opened. However, in compliance to the directions passed by this Court dated 09.12.2022, the Part-II of the bid has not been opened, as such, the decision with regard to the representation/complaint of the petitioner could not be uploaded till date. 16. It is further stated that the assertion made by the petitioner with respect to the technical glitch on the portal is denied as during the last one month, out of 97 Nos. of Bids, 27 were technically evaluated and of which 67 Nos. of bids were found technically responsive. Had there been any technical glitch, these 67 Nos. of bids would have also become non-responsive. 17. It is stated that the petitioner made representations on 05.12.2022 and 06.12.2022 to respondent No. 2 whereby, he has submitted that there were no shortcomings inasmuch as compliance of the terms and conditions of the tender documents and that the portal contains certain technical problem which may be a reason for non-appearance of certain documents to the respondents despite of them being uploaded on the portal. 18. It is further stated that the complaint of the petitioner is devoid of any merit in view of the fact that whereas about 57.8 MB space has been used by the petitioner on the portal while uploading the documents concerning this tender, another bidder for the same work namely M/s TBA Infrastructures Pvt. Ltd. has consumed more than 226 MB space and M/s Parshotam Singh Contractors Pvt. Ltd. has consumed more than 98 MB space on the portal while uploading his document. That shows that there was no shortage of space for the bidder for uploading his company audit report for remaining three financial years also as on the portal his company audit report for the financial year 2017- 7 18 is found to be uploaded from Page No. 30-32 of the PDF file and the same for the financial year 2018-19 is found to be uploaded from Page No. 41 to 43 of the PDF. The Company Audit Reports for the financial years 2019-20, 2020- 21 and 2021-22 have not been found anywhere in the PDF uploaded on the portal. There is, thus, no mala fide intension on the part of the respondents. 19. Heard learned counsel for the parties and perused the material on record and the digital record produced by the respondents. 20. The short grievance of the petitioner is to the extent that the petitioner has been shown as non-responsive for the NIT i.e. e-NIT No.CEJ/PMGSY/723 of 2022-23 dated 14.11.2022. The petitioner had made two representations before the respondents on 05.12.2022 and 06.12.2022 in terms of Clause 22.6 of SBD which specifies that result of evaluation of Part-I of the bid shall be made public on procurement systems following which there will be a period of five working days during which any bidder may submit complaint which shall be considered for resolution before opening of Part-II of the bid. 21. This Court in terms of order dated 09.12.2022, had directed the respondents not to proceed with e-NIT No. CEJ/PMGSY/723 of 2022-23 dated 14.11.2022, the respondents have stated in their reply that the representations of the petitioner dated 05.12.2022 and 06.12.2022 have already been considered by the respondents but the same could not be uploaded by the respondents on account of the fact that the respondents were restrained by this Court in terms of order dated 09.12.2022 for opening of Part- II of the bid. The respondents were under an obligation to consider the complaint of the petitioner on account of the fact that the petitioner lost no time in submitting his complaint within the specified period in terms of Clause 22.6 of the SBD on 05.12.2022 and 06.12.2022. 8 22. On the asking of the Court, learned counsel for the respondents has placed on record the decision made by the respondents on the complaint of the petitioner in terms of Clause 22.6 of the SBD in a sealed cover. The same has been handed over to Mr. Aditya Gupta, learned counsel for the petitioner in the open Court. 23. The complaint of the petitioner has been considered and it is stated that under Clause 4.2 III(e) and (f), Company Audit reports (if applicable) for the last five financial years and Audit Report under Income Tax Act (3CA/3CB and 3CD reports) for at least two financial years, i.e., 2020-21 and 2021-22 are to be uploaded in this 6th Slot under cover No. 1 which, in the case of the petitioner, has not been uploaded. 24. It is stated that all the documents mentioned under Clause 4.4 (B) (e) and (f) refers to the documents of lead partner i.e. M/s Green Earth Infrastructure Pvt. Ltd. the documents of which have not been uploaded on the tender portal for the bid under reference. They do not refer to the second partner of joint venture i.e M/s Ram Lal and Sons. It is further submitted that from the turnover of the lead partner i.e. Green Earth Infrastructure Pvt. Ltd. which the bidder has uploaded on the tender portal for the said bid in (other important documents column), it is clear beyond any shadow of doubt that the turnover of M/s Green Earth Infrastructure Pvt. Ltd. for two years i.e. financial year 2020- 21, 2021-22 is more than the 10 crores which is the threshold limit beyond which the lead partner of the complainant company has to upload Audit Reports under Income Tax Act (3CA/3CB along with 3CD reports), i.e. at least for the two financial years, i.e. 2020-21, 2021-22 and TDS certificate/26AS from downloaded from income tax website for the last five financial years and Company Audit Report for all last five financial years. 9 25. Learned counsel for the respondents has also placed on record communication No. CEJ/PMGSY/118-24 dated 22.08.2023, wherein it is stated that carefully evaluation of the bid of the tenderer M/s Green Earth-RLS (JV) by the Bid Evaluation Committee, it has come to the notice that second reason for rejection as mentioned above does not hold good and the matter may not be pressed. It is also stated that the first reason for rejection is sufficient for declaring the petitioner as non-responsive. 26. These documents are taken on record. 27. Learned counsel for the petitioner has stated that he had placed the relevant documents in terms of SBD but due to the technical glitch, these did not appear on the portal whereas, Mr. Ravinder Gupta, learned counsel for the respondents has stated that the documents specified in Clause 4.4 (a), Clause III(e) are mandatory and not ancillary in nature as such, the petitioner was bound to upload the Audit report of last five financial years before the cut-off date. 28. Learned counsel for the respondents has placed reliance on the following judgments: i. Central Coalfields Limited &Anr. V/s SLL-SML (Joint Venture Consortium) and ors. 2016 (8) SCC 622, ii. Laxmi Datt Binwal V. State of Uttarakhand &ors. 2019 AIR (Uttaranchal) 148; iii. W.B. Electricity Board V. Patel Engineering Co. Ltd. and others. 2001 (2) SCC 451; iv. National High Speed Rail Corporation Limited V/s Montecarlo Limited &Anr. 2022 (6) SCC 401; v. Ghulam Nabi Mir V. UT of J&K and ors.; vi. Afcons Infrastructure Ltd. V/s Nagpur Metro Rail Corporation Ltd. and anr. 2016 (16) SCC 818. 10 29. The Apex Court in case titled TATA MOTORS LIMITED versus THE BRIHAN MUMBAI ELECTRIC SUPPLY &TRANSPORT UNDERTAKING (BEST) AND OTHERS reported as 2023 Live Law (SC) 467 held as under: “48.This Court being the guardian of fundamental rights is duty- bound to interfere when there is arbitrariness, irrationality, malafides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realize their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.” 30. It is settled by the Apex Court in case titled Vidarbha Irrigation Development Corporation V/s M/s Anoj Kumar Agarwala and ors. (2020) 17 SCC 577, which is reproduced below: “14. The law on the subject is well settled. In Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Pvt. Ltd. and Ors., (2016) 8 SCC 446, this Court held: “14. The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn. v. Ganesh Engg. Works [Poddar Steel Corpn. v. Ganesh Engg. 11 Works, (1991) 3 SCC 273] this Court held as under: (SCC p. 276, para 6) “6. … The requirements in a tender notice can be classified into two categories—those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.” 15. Similarly in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548] this Court held as under: (SCC pp. 571-72, para 66) “(i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;…” 16. We also agree with the contention of Shri Raval that the writ jurisdiction cannot be utilised to make a fresh bargain between parties.” 15. However, the learned counsel appearing on behalf of the appellant strongly relied upon Afcons Infrastructure Ltd. v. Nagpur 12 Metro Rail Corpn. Ltd., (2016) 16 SCC 818, and paragraphs 14 and 15 in particular, which state: “14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance. In this context, the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked. 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.” 16. It is clear even on a reading of this judgment that the word used in the tender document cannot be ignored or treated as redundant or superfluous they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court.” 31. The Apex Court in case titled N.G. Projects Ltd. V/s M/s Vinod Kumar Jain and ors. has held as under: “22.The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were 13 found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.” 32. Perusal of the record strengthens the claim of the respondents that the petitioner had only uploaded audit reports of two financial years instead of last five financial years on the portal. Therefore, the respondents had rightly declared bid of the petitioner as non-responsive in terms of the impugned order dated 05.12.2022. 33. While considering the scope and ambit of the High Court under Article 226 of the Constitution of India with respect to judicial scrutiny of the eligibility criteria/tender conditions, few decisions of this Court are required to be referred to, which are as under: In the case of Maa Binda Express Carrier V. North-East Frontier Railway, (2014)3 SCC 670, in paragraph 8, this Court observed and held as under: “8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending 14 upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and nondiscriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process.” In the case of Michigan Rubber (India) Ltd. V. State of Karnataka, (2012) 8 SCC 216 (paras 23 and 35), after considering the law on the judicial scrutiny with respect to tender conditions, ultimately it is concluded in paragraph 23 as under: “23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; 15 (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government.” 34. In the aforesaid decision, it is further observed that the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. It is further observed that the courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. Similar views have been expressed in the case of Directorate of Education v. Educomp Datamatics Limited, (2004) 4 SCC 19 (para 12); and Meerut Development Authority v. Assn. of Management Studies, (2009) 6 SCC 171 (paras 26 & 27). 35. It has been settled by the Apex Court that no judicial review is permissible in commercial matters unless a case of arbitrariness, mala fide, bias or irrationality is made out. It has further been laid down that the courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings 16 in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 36. The Chief Engineer, PMGSY, JKRRDA, Jammu is present in person. It is stated in the reply filed by the respondents that the complaint/representation of the petitioner was considered before filing of the reply i.e. 14.12.2022 but on perusal of the decision taken by the respondents, no number and date is mentioned. Mr. Rajan Mengi, the Chief Engineer has appeared in person and has stated that though the decision was taken with respect to the complaint of the petitioner before filing of the reply but inadvertently, no number and date has been reflected by any of the authority. The Chief Engineer is directed to be vigilant and not to pass any such order without reference to number and date in future. 37. In terms of Clause 22.6, the respondents have considered the complaint/representation of the petitioner before opening of the financial bid. Admittedly, as on date, the financial bid has not been opened. 38. In view of the above, it has been noticed by this Court that the petitioner has failed to upload the relevant documents before the cut-off date in terms of the SBD, as such, he cannot be allowed to modify/add any document which was not uploaded on record on the portal at the relevant point of time. Therefore, the respondents have rightly passed the impugned order dated 05.12.2022, thereby treating the bid of the petitioner as non-responsive in absence of the Company Audit Reports attached of two financial years instead of last five financial years which is not as per the requirement of Clause 4.4 (a) III(e). The condition found to have not strictly complied with by the petitioner which is mandatory as per NIT vide e-NIT No.CEJ/PMGSY/723 of 2022-23 dated 14.11.2022. There is no merit in the writ petition, the same is accordingly 17 dismissed, however, liberty is granted to the petitioner to challenge the decision taken by the respondents on the complaint of the petitioner, if cause survives, otherwise. (MOKSHA KHAJURIA KAZMI) JUDGE Jammu: 24.08.2023 Eva Whether the order/judgment is speaking or not Yes/No Whether the order/judgment is reportable or not Yes/No "