Case Note & Summary
The petitioner, M/s. Nanak Construction, a partnership firm, filed a writ petition challenging a communication dated 30.12.2022 issued by the Water Supply and Sanitation Department of the State Government. The communication, addressed to the Chief Executive Officer of Zilla Parishad, Nagpur, stated that a proposal for blacklisting the petitioner was under consideration. Based on this communication, the Zilla Parishad held one of the petitioner's bids as non-responsive and did not permit the petitioner to participate in other bids under a tender notice for about 10 works. The petitioner had responded to the tender and submitted its bid. For work No.2022_NAGPU_857690_2, the petitioner's bid was not opened on the ground that instructions from the State Government regarding blacklisting were awaited. The financial bids for other works were yet to be opened when the petition was filed. The petitioner sought a direction to be allowed to participate in the tender process, arguing that no order of blacklisting had been passed. The court examined Clause 15 of the tender document, which disqualifies a contractor who is blacklisted/barred or whose registration is suspended. The court noted that the communication only indicated a proposal under consideration and did not constitute a final order of blacklisting. The court held that the petitioner could not be disqualified based on a mere proposal. The court allowed the petition, directing that the petitioner be permitted to participate in the tender process and that its bid be considered in accordance with law, subject to the final outcome of the blacklisting proceedings. The court also clarified that the respondents could proceed with the blacklisting proposal in accordance with law after giving an opportunity of hearing to the petitioner.
Headnote
A) Administrative Law - Blacklisting - Natural Justice - Pending Proposal - The communication dated 30.12.2022 from the Water Supply and Sanitation Department stating that the proposal for blacklisting the petitioner is under consideration does not amount to an order of blacklisting. The petitioner cannot be disqualified from participating in the tender process or have its bid rejected as non-responsive solely on the basis of such a communication, as no final order of blacklisting has been passed. (Paras 2-4) B) Contract Law - Tender Process - Eligibility - Clause 15 of Tender Document - Clause 15 of the tender document disqualifies a contractor who is blacklisted/barred or whose registration is suspended. Since the petitioner has not been blacklisted by any final order, the condition for disqualification under Clause 15 is not attracted. (Para 3) C) Constitutional Law - Article 226 - Writ Jurisdiction - Interim Relief - The High Court, in exercise of its writ jurisdiction, directed that the petitioner be permitted to participate in the tender process and that its bid be considered in accordance with law, subject to the final outcome of the blacklisting proceedings. (Para 4)
Issue of Consideration
Whether a bidder can be disqualified from participating in a tender process on the basis of a communication that a proposal for blacklisting is under consideration, without a final order of blacklisting being passed.
Final Decision
The writ petition is allowed. The respondents are directed to permit the petitioner to participate in the tender process and to consider its bid in accordance with law, subject to the final outcome of the blacklisting proceedings. The respondents are at liberty to proceed with the blacklisting proposal in accordance with law after giving an opportunity of hearing to the petitioner.
Law Points
- Blacklisting cannot be imposed without giving an opportunity of hearing
- Pending proposal for blacklisting does not amount to actual blacklisting
- Bidder cannot be disqualified based on mere communication of proposed blacklisting
