Excelsior Correspondent
Srinagar, Mar 16: The High Court today held that Government or the tendering authority is well within its power to lay down certain preconditions or qualifications to ensure that the contractor has the capability and financial capacity and resources to successfully execute the contract.
Justice Sanjeev Kumar said that there is also no dispute with regard to the proposition that all conditions in the contract are not the mandatory conditions required to be complied with strictly in all situations.
“The terms and conditions forming the contract could be broadly classified into mandatory conditions and Ancillary conditions of the contract. The conditions which are core to the contract and relate to the capability, capacity and resources of bidder are indisputably mandatory conditions as these are meant to ensure successful execution of the contract”, Justice Kumar said.
Court further said that the Government or its instrumentality can be subjected to judicial review to prevent arbitrariness or favouritism on its part but there may be certain Cncillary terms and conditions in the contract, strict adherence to which may not be insisted upon.
“The scope of interference by this Court in exercise of its extra ordinary jurisdiction in contractual matter is now fairly well defined and there is, thus, no scope for admitting any ambiguity therein”, Court said.
Underscoring the legal preposition and the law cited by the parties, Court said that since the matter involved in the instant petition pertained to the realm of contract and, said, this Court has no jurisdiction to entertain this petition.
However, Court said wherever, it is required to prevent arbitrariness or favouritism by the State in the matter of entering into contract with its citizens, this Court would step in to remedy such situation by exercising the power of judicial review.
It may be mentioned here that the Iqbal Mortrs Transport Corporation had qualified for the contract while M/S Ladakh Road Lines failed to qualify and knocked the door of the Court.
In the instant case, Court said, the dispute has arisen at the threshold of the contract and in view of the law, the power of judicial review is more intrusive. “However, the questions which have been raised by the petitioner as also the respondent No.4 (Iqbal Transport Corporation) are disputed questions of fact. Therefore, this Court may not be in a position to decide such questions. Whether the petitioner or for that matter Iqbal Transport Corporation have actually complied with the mandatory terms and conditions of the contract is better left to be decided by the experts associated in the evaluation of the bids”, read the judgment.
The stand of the official respondents that they have not yet accepted the bid of Iqbal Mortars Transport Corporation and that the representation made by the petitioner highlighting lack of (Iqbal Mortars Transport Corporation) eligibility to participate in the financial bids is under consideration, Court as such deemed no to decide the merits of the contentions raised by the petitioner and the respondents.
Court has disposed of the case by directing the official respondents to decide the representation filed by the petitioner and stated to be pending consideration by a speaking order in a time bound manner.
“The official respondents shall take a final decision on the representation/complaint filed by the petitioner against the decision of the official respondents declaring respondent No.4 technically qualified to participate in the financial bid”, Court directed.
Court has made it clear that the official respondents are at liberty to re-tender the contract in question, if none of the bidders who had responded to the e-tender are found to be eligible to execute the contract or the official respondents otherwise feel such course to be in public interest.
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