IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 1222 of 2009 M/S Chitra Gupta Construction Pvt Ltd through its Executive Director Mr Jai Sinha son of Sri Umesh Prasad, Mohalla - Thakurbari Road, At & PO - Jehanabad, P S - Jehanabad, Dist - Jehanabad, Pin - 804 408, State - Bihar - Petitioner Versus 1 The State of Bihar 2 The Principal Secretary, Water Resources Department, Bihar, Patna 3 The Engineer-in-Chief, Water Resources Department, Bihar, Patna 4 The Chief Engineer, Water Resources Department, Anishabad, Patna (Bihar) 5 The Superintending Engineer, Water Ways Circle, Biharsharif (Nalanda) 6 The Executive Engineer, Water Ways Division, Ekangarsarai (Nalanda) - Respondents *** For the petitioner : M/s D K Sinha, Sr Advocate & Manish Sahay, Advocate For the S t a t e : Mr Sidharth Prasad, AC to AAG IX *** 4 28.02.2009 The petitioner had responded to notice inviting tender No 2 of 2008-2009 issued by the Executive Engineer, Water Ways Division, Ekangarsarai under the Water Resources Department. Petitioner challenges the decision of the Tender Committee in holding him technically ineligible. One of the documents in support of experience that was required to be submitted was that tenderers had undertaken earth work of the quantity involved in the present tender in any one earlier year. Petitioner submitted a certificate which showed that he, under an agreement No F2-14 of 2006-2007 had done more than the said quantity of work. When technical bids were opened, though while preparing charts, petitioner was shown to be qualified for consideration of his financial bid, the Tender Committee rejected his technical bid. Petitioner moved to this Court against the said rejection stating that as 2 no reason was disclosed to him, only thing he could learn was that his technical bid was rejected merely because work in other zone was not upto the mark or was not progressing appropriately. A counter affidavit has been filed by the State in which it is stated, with reference to the proceedings of the Tender Committee, that there were two grounds for disqualifying the petitioner. The first that is work progress in other zone was slow and second that he had not given adequate work experience certificate. In other words, the earth work certificate did not disclose the required information. The petitioner then submitted that he had clarified the position by giving a clarificatory certificate by the same authority and the Tender Committee failed to take notice of it. Learned counsel for the State drew my attention to the certificate as furnished by the petitioner. All that the certificate says that he had done the minimum quantity of earth work under the said agreement. He points out that the requirement under the tender was to give the yearwise statement in this regard as experience had to be judged in relation to the quantity of work done. That was neither clear nor specific, in absence whereof, the experience criterion was not fulfilled. Learned counsel for the petitioner submits that this was hyper technicality. The charts, as were prepared by the Department and its recommendation to the Tender Committee, clearly showed petitioner as eligible. In my view, at the stage of technical bid, one has to see the eligibility and not compare individual tender. The competition vis-à-vis individual tenderer comes at the stage of financial bid. A perusal of the 3 experience certificate, as originally annexed to the tender document, does leave scope of ambiguity. That gave discretion to the authorities whether to accept it or not. The office of the respondents chose to accept it whereas the authorities, when the time for decision came, chose to reject. On the face of it, it cannot be said that the action was mala fide or lacking in bona fide as two views were permissible. By taking one view, it cannot be said that the authority acted wrongly. Court must keep in mind that we are dealing not with statutory rights but contractual rights. These are not quasi judicial proceedings. The considerations are different if not distinct. Thus, having found that there was no lack of bona fide in the decision as taken by the Tender Committee in respect of the petitioner’s eligibility, in my view, the writ petition cannot be entertained. No relief can be granted to the petitioner. The writ petition is, thus, dismissed. M.E.H./ (Navaniti Prasad Singh)