M/s. A.G. Construction Co. vs State of H.P. and Others

A.M. Khanwilkar, C.J.—Heard counsel for the parties. The petitioner challenges the condition, clause (d), found in the notice inviting tender, which reads thus:

d) The intending contractor/Firm shall give an undertaking by way of affidavit clearly stipulating therein that he does not have more than two works in hand in the entire State of Himachal Pradesh, out of which one of the work is nearly completion i.e. at least 90% of tendered amount has been executed by the contractor/Firm for which necessary certificate is required from the Competent Authority.

According to the petitioner, he has the capability of undertaking several works at one time. Therefore, the condition impugned in this petition is unreasonable and discriminatory.

We are not impressed by this argument. The purpose of providing for such condition is to ensure that the work does not concentrate in the hands of one contractor. This condition has been introduced on the basis of past experience of the Authority that the contractors commit themselves and after execution of the contract of multiple works, the progress of all or some of the work is hampered. The condition, on the other hand, in our opinion, is a reasonable condition. It provides that if a contractor has completed his one work out of two works and at least to the extent of 90% of the tendered amount, he would be entitled to participate in the tender process for the third work. This condition is in the nature of eligibility clause. Further, the avowed objective of such a condition is also to distribute the works as best to subserve the common good and in particular amongst the aspiring eligible contractors.

It is not the case of the petitioner that it is not open to the Authority to consider this aspect of the matter while finalizing tender and awarding the contract to eligible tenderer. If this factor can be taken into account by the Authority at the relevant time, there is nothing wrong to provide for such express condition in the tender document itself. Suffice it to observe that the condition under challenge, in our opinion, is not unreasonable nor arbitrary. Hence dismissed.