A.K. Chawla JUDGMENT
S. Ravindra Bhat, J.
1. The petitioner is aggrieved by the rejection of its bid submitted in response to the Notice Inviting Tender (NIT) for combined station works, including, civil, mechanical, electrical, telecom and instrumentation works at Paradip, Vizag, Rajamundry and Vijayawada stations and two 10000 KL capacity cone roof fire water storage tank at Vizag station under the PHPL Project (hereafter called "the work"). The petitioner's bid was rejected on the ground of technical unfeasibility.
2. The facts are that the respondent (hereafter called "the IOL") published the NIT on 09.06.2017. The NIT envisioned a two-bid system of appraisal of tenders, i.e. a two bid system - technical and financial bids. The bone of contention in this case, is Clause 7.3.0 of the tender conditions embodied in the Special Instructions to Tenderers for the Works, which reads as follows:
"7.3.0 The performance of the Tenderer in the past/ongoing works executed for IOCL, if any, and/or performance in past/ongoing works for other clients shall have an important bearing in evaluating the Tenderers' technical capability. Tenderers are liable to be technically ineligible based on poor/non-satisfactory performance in past/ongoing works executed for IOCL or for any other client. "
3. The petitioner had lodged its bid together with relevant documents and particulars on 08.08.2017. The petitioner company claims to be a leading turnkey player in the infrastructure sector for the past 30 years that has successfully undertaken various projects for several public sector undertakings, including petroleum corporations, Oil and Natural Gas Corporation Limited etc. It is stated that IOL opened and accepted the petitioner's technical bid along with three other bidders on 10.08.2017. Certain queries were made on three occasions (dated 30.08.2017, 04.09.2017 and 27.09.2017) with respect to the petitioner's bid which were responded to by the replies (dated 07.09.2017, 11.09.2017 and 14.10.2017). The petitioner claims that IOL was repeatedly reminded to clear its outstanding dues in respect of another project, i.e. the Mohanpura Hook Up Project but was warned that if it continued to persist in those claims, its bid for the works would face rejection. On 10.11.2017, the petitioner requested IOL not to mix the two issues and take an independent position. In this background of facts, the petitioner complains having, on 27.11.2017, received an email from IOL stating that its bid was rejected as technically unacceptable.
4. The impugned tender rejection communication reads as follows:
"Sub: Technical evaluation for the tender - reg.
Dear User,
With reference to your bid submission for the following tender.
Tender Id : 2017_PLHO_55475_1
Tender reference No. : PLCC/PHPL/M/1740
Organisation Chain : Pipelines HO//Contracts
You are informed that your bid for the above tender has been rejected during Technical evaluation by the duly constituted committee for the reason Technically not acceptable.
In case of any clarifications or feedback, you may contact Tender Inviting Authority (TIA)."
5. In response, to the show cause notice, the IOL submits that it invoked clause 7.3 of the Special Instructions to Tenderers for the Work and submits that for appraisal of the technical bids of rival tenderers, the Mechanical Department of its Petroleum Division concerned with technical evaluation sought performance appraisal of past as well as ongoing works executed by all the four bidders. In response to this query, a note dated 24.10.2017 sent the evaluation in respect of two bidders, i.e. Bridge and Roof (Co.) India Limited........