IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL
THE HON’BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON’BLE SRI JUSTICE RAKESH THAPLIYAL

WRIT PETITION (M/S) NO. 573 OF 2023

25TH JULY, 2023

Between:

GMW Private Limited & another …… Petitioners

and

Uttarakhand Jal Vidyut Nigam

Limited & others …… Respondents

Counsel for the petitioners : Mr. Arvind Vashistha, learned

Senior Counsel assisted by Ms.
Pushpila Bisht, Ms. Mamta Bisht
and Mr. Tanay Tewari, learned
counsels
Counsel for the respondents : Mr. Vinay Kumar, learned counsel
for respondent Nos. 1 and 2

: Mr. Vijay Mishra and Mr. Naman

Kamboj, learned counsels for
respondent No. 3

: Mr. Pradeep Joshi, learned

Additional Chief Standing Counsel
with Ms. Puja Banga, learned Brief
Holder for the State

The Court made the following:

JUDGMENT: (per Hon’ble The Chief Justice Sri Vipin Sanghi)

The petitioners have preferred the present writ

petition to assail the decision dated 22.02.2023,

communicated to the petitioners by respondent No. 1,

whereby, the petitioners’ technical bid submitted in

respect of Tender Id No. 2022_UJWB2_52260_1,

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Tender Reference No. NCB/17/EE(EM)/MB-II/B/2022-23,

has been rejected for the reason “As Per Tech

Summary”. The Tech Summary, i.e., The Technical

Evaluation (Part I) has been filed separately, which

shows that the technical bid of the petitioners has been

rejected, for the reason that – “Not as per footnote 04 of

Section III – Evaluation and Qualification Criteria, Clause

2.4”.

2) To appreciate the reason for rejection of the

petitioners’ technical bid, we may refer to Clause 2.4,

and footnote 04, contained in Section III – Evaluation

and Qualification Criteria. Clause 2.4, in so far as it is

relevant, reads as follows:

Joint Venture (existing or intended) where permitted

No Subject Requirement Single All members Each At least one Submission

Entity Combined Member Member Requirements
No consistent Must Must Must
Litigation History history of court / Meet Meet Meet N/A Form Con - 2
2.4
/ Arbitral award Requirement Requirement Requirement
decisions

4. The Bidder shall provide accurate information on the Letter of Bid about any litigation or
arbitration resulting from bids submitted or contracts awarded or completed or ongoing under its
execution over the last five years. A consistent history of court/arbitral awards against the Bidder
or any member of a joint venture may result in disqualifying the Bidder.

3) The case of the petitioners is that the

petitioners were required to disclose the litigation history

under Clause 2.4, in so far as it discloses “consistent

history of court / arbitral award decisions against the

bidders, since 01.01.2012”.

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4) The case of the petitioners is, that they did not

have any such litigation history with the respondent,

which could be said to have resulted in - consistent court

/ arbitral award decisions against the petitioners.

5) In response to Clause 2.4, the petitioners, in

their bid had stated –

No Litigation History in accordance with Section III, Evaluation and

Qualification Criteria, Sub-Factor 2.4 and subsequently Amended by e-
Procurement Corrigendum No. – 01

We don’t have any consistent history of court/arbitral award decision

against us, since 01st December, 2017.

6) The petitioners had also disclosed in Table-b,

the following information :

Tender Identification : NCB/10/EE(E&M)/AB/UJVNL/2018-

19 dtd. 07.03.2019 & NCB/08/EE(E&M)VIRBHADRA
BARRAGE/UUJVNL/2018-19 dtd. 14.03.2019

Name of Employer: UJVNL LTD.

Address of Employer : Asan Barrage, UJVNL Ltd.,

Dhalipur – 248142, District – Dehradun, Uttarakhand &
Virbhadra Barrage, UJVNL Ltd., - Pashulok, Rishikesh –
249203, District Dehradun, Uttarakhand.

Matter in dispute : Regarding the total value to work of

TRCM and Trash rack of our completed contract of Sainj
HEP. For Unfair evaluation process with undue favours
extended to other bidder Multitech Engineers with having
its operators/CEO with CBI court case for financial scam at
Jharkhand State Electricity Board along with then CMB of
JSEB and later MD of UJVNL at the time of opening of
above tenders.

Party who intimated the dispute : Employer (UJVNL Ltd.)

Reasons(s) for Litigation and Bid evaluation decision :

Reason is not clear to us, as we were a sub-contractor of
HCC and the aforesaid value of the job was subsequently
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certified by HCC.

Moreover, in view of the decision taken by UJVNL Ltd.

against us, we had to approach Honourable High Court for
justice, from where we obtained the stay order, which is
still holds good and the rights of GMWPL are secured with
the aforesaid stay. The status of GMWPL remains the
same as prior to the issuance of UJVNL decision.

As a documentary evidence of above, we are enclosing

the details “Court’s or Judge’s orders”

7) The petitioners had also placed on record

along with the tender, the order passed by the High

Court in the petitioners’ case, staying the operation of

the order of blacklisting of the petitioners.

8) The submission of Mr. Vashistha is that the

said disclosure made by the petitioners, including the

fact that there was stay operating in respect of the

blacklisting order, did not justify the rejection of the

petitioners’ technical bid, on the ground, that the

technical bid is not as per footnote 04 of Section III -

Evaluation and Qualification Criteria, Clause 2.4.

9) Taking note of the aforesaid submission, this

Court issued notice to the respondents, and required the

respondents to file their counter-affidavit, vide order

dated 02.03.2023. This Court also restrained the

respondents from awarding the contract to any third

party, in the meantime.

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10) The respondents have filed their counter-

affidavit. The stand taken by the respondents in their

counter-affidavit, inter alia, is reproduced as follows :

“As per details furnished in Table-b (for information of

litigation where bids were submitted) of Form CON-2 of
the bid, M/s GMW Pvt. Ltd. has litigation against UJVNL
Ltd. for following tenders:

a) NCB/10/EE(E&M)/AB/UJVNL/2018-19 dated
07.03.2019, &

b) NCB/08/EE(E&M)/Virbhadra Barrage/UJVNL/2018-19
dated 14.03.2019

The Following writ petitions were filed by

petitioner in Hon’ble High Court against above tenders
and against blacklisting by UJVN Ltd.:

1. WPMS/2559/2020

2. WPMS/421/2020

3. WPMS/413/2020

4. WPMS/197/2020

5. WPMS/192/2020

2. That WPMS/413/2020 & WPMS/421 were clubbed

by Hon’ble High Court and by order dated 26.02.2020,
Hon’ble High Court disposed of the petition with a
direction to CPMU of Central Water Commission to look
into the matter and take appropriate decision on
petitioner’s representation, which has been forwarded
by UJVNL, in accordance with law, preferably within
period of two weeks from the date of production of
certified copy of this order.

In compliance of judgment dated 26.02.2020

passed by Hon’ble High Court of Uttarakhand, Central
Project Management Unit (CPMU) of Central Water
Commission (CWC), informed vide L.No.02/06/2018-
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DSRD/UJVNL/729-32 dated 11.03.2020 CPMU has re-

examined the representation of M/s GMW and taken a
final view that :

A. The declaration of M/s GMW Pvt. Ltd. as technically

non-responsive bidder is solely based on the mis-
representation of facts as per bid clause no. 3
under general section of instruction to bidders
(ITB) of the official bid document as M/s GMW Pvt.
Ltd. submitted official bid with tampered copy of
amendment no. 3 dated 06.03.2014 to original
procurement order (PO) dated 08.05.2013 from
employer M/s HCC Ltd. citing the cost of TRCM as
Rs.3.75 Cr in place of 2.35 Cr.

B. First stage credential verifications of M/s Multitech

Engineers as well M/s GMW Pvt. Ltd. have been
done by CWC. In the case of M/s Multitech
Engineers, the concerned Employer has certified
the authenticity of the details given in procurement
orders submitted with official bid by M/s Multitech
Engineers. Therefore, CPMU of CWC did not
recommend any second stage verification of official
supporting documents of M/s Multitech Engineers
which is recommended only in case any
ambiguity/incorrectness in noticed in first stage.

C. Based on above facts, CPMU of CWC re-affirms its

view point that the declaration of M/s GMW Pvt.
Ltd. as technically non-responsive bidder is
correct based on examination of various
supporting documents and information furnished
by evaluation committee of UJVNL and Nodal
Officer, DRIP, UJVNL. The UJVNL should proceed
to award the contract at the earliest keeping in
view scheduled closure of scheme in June 2020 as
UJVNL is liable to pay the commitment charges for
the undisbursed loan amount @ 0.25% annually”

D. Also, UJVNL may take appropriate action against

M/s GMW Pvt. Ltd. for this misrepresentation of
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facts as per relevant clauses of bid, which may

become a deterrent to all the bidders not to
submit wrong information in all future
procurement to be done in the upcoming DRIP
Phase-II and Phase-III with much larger outlay.”

3. That this Decision of CPMU of CWC, in compliance of

judgment dated 26.02.2020 passed by Hon’ble High Court of
Uttarakhand, is not only against M/s GMW Pvt. Ltd. but CPMU
also recommended appropriate action against M/s GMW.”

(emphasis supplied)

11) The further stand taken by the respondents in

para 25 of their counter-affidavit, reads as follows:

“Later M/s GMW filed a writ petition no.

WPMS/2559/2020 in Hon’ble High Court of Uttarakhand
challenging the blacklisting by UJVN Ltd. and
disqualification of M/s GMW Pvt. Ltd. The matter is
subjudice. Wherein Honourable High Court of
Uttarakhand granted stay to petitioner only on the
order passed by UJVNL for blacklisting of M/s GMW Pvt.
Ltd. The order of disqualification of M/s GMW is still
prevailing and stay on the same is not granted by the
Honournable High Court of Uttarakhand. Hence, M/s
GMW Pvt. Ltd. was disqualified in the invited bids as per
relevant clauses of litigation history on the basis of
arbitral award in previous bids of Asan & Virbhadra
Barrage.”

12) The submission of Mr. Vashistha, learned

Senior Counsel for the petitioners, is that the petitioners

had made a disclosure of the writ petition preferred by

the petitioners against the petitioners’ blacklisting, and

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that there was stay granted by the Court on the said

order of blacklisting, which had been passed without

grant of opportunity of hearing to the petitioners. Since

there was a stay operating, the same had to be given

effect to, and the effect of the stay order is, as if the

blacklisting of the petitioners was not operating.

13) On the other hand, the submission of Mr.

Kumar, learned counsel for respondent Nos. 1 and 2, is

that even if the blacklisting was not operating, that did

not prevent the respondents from considering the past

conduct of the petitioners in submitting tampered

documents in relation to the earlier tender referred to

here-in-above.

14) We have considered the rival submissions of

the parties.

15) The petitioners have today itself withdrawn

Writ Petition (M/S) No. 2559 of 2020, wherein a

challenge had been raised to the blacklisting order, on

the ground, that the said blacklisting order was valid

only till 31.12.2020, and it has worked itself out.

Though the said blacklisting has ceased to exist -

meaning thereby, that the petitioners cannot be

debarred from participating in tendering process, it does

not follow that the conduct of the petitioners, which led

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to the said blacklisting, cannot be even taken into

consideration by the respondents, while examining the

petitioners’ bid in respect of tender in question.

16) We have heard detailed submissions of

learned counsels on the allegations made against the

petitioners, of the petitioners’ submitting forged and

fabricated documents in relation to an earlier tender.

The long and short of the matter is that, in response to

the earlier tender No. NCB/10/EE(E&M)/AB/UJVNL/2018-19

- to show its compliance of the experience and turnover

criteria, the petitioners had provided an amended

purchase order bearing No. 11254101, bearing

amendment No. 03 dated 06.03.2024, issued by the

primary contractor Hindustan Construction Company

(HCC) in respect of an earlier contract. Admittedly, in

the copy of the amended purchase order submitted by

the petitioners along with their bid, the petitioners - on

their own, redacted several entries of the purchase

order, and only in respect of one entry at Sl. No. 270,

the following entry was submitted :

Sr. No. DESCRIPTION QTY. UNIT UNIT RATE (Rs.) TAXABLE AMOUNT (Rs.

270 Trash Rack Cleaning Machine 1 SET 37,500,000.50 37,500,000.50

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17) The respondents conducted an enquiry into

the aforesaid aspect, by sending a communication to the

HCC, and learnt that the petitioners had actually

tampered with the said purchase order, by not only

redacting all the other entries, but also enhancing the

value of Trash Rack Cleaning Machine (TRCM) from Rs.

2.35 crores to Rs.3.75 crores.

18) Thus, it clearly emerged that the petitioners

had indeed, submitted a tampered document.

Pertinently, when the petitioners were given an

opportunity to explain their conduct, the petitioners

candidly admitted that it was a mis-representation

committed by its staff.

19) Aforesaid being the position, we are of the

considered view, that the decision of the respondents to

disqualify the petitioners on that ground does not call for

interference. We, accordingly, dismiss this petition, and

vacate the interim order.

________________
VIPIN SANGHI, C.J.

_________________
RAKESH THAPLIYAL, J.

Dt: 25th JULY, 2023

Negi