The Dzongkhag Tender and the Minister's Phone Call
The Dzongkhag Administration of Trashigang invites sealed bids for a Nu. 14 million road repair contract. The tender document states that bids will be evaluated on price and technical capacity and that the lowest responsive bidder will be awarded the work. Five bids are received. The evaluation committee ranks Pema Construction first, Kuensel Builders second, and Druk Infra third, noting that Druk Infra's bid was non-responsive because it omitted the required equipment schedule. Three days later the Dzongdag awards the contract to Druk Infra, recording only that the award is made "in the interest of timely completion." Pema Construction learns of the award from a newspaper notice and files an appeal 40 days after the award, seeking cancellation and damages. The Dzongdag argues the appeal is time-barred and that tender awards are administrative policy not subject to review.
1. Is the award to Druk Infra reviewable, and on what grounds?
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Yes. A tender award by a Dzongkhag Administration is an administrative action affecting the legal rights of bidders and is reviewable for legality, rationality and procedural propriety. The tender document created a legitimate expectation that the lowest responsive bidder would win, and Pema was the highest-ranked responsive bidder. The award to a bidder the committee itself found non-responsive, supported only by an unexplained reference to timely completion, is arbitrary and fails the rationality test. It also breaches the duty to give reasons, since a bare recital of convenience does not disclose the basis for departing from the stated criteria. The argument that tenders are pure policy is untenable: policy choices may be immune from merits review, but applying published criteria to particular bids is an administrative act. The award should be quashed and the matter remitted for evaluation strictly according to the tender document.
2. Advise on the limitation objection and on Pema's claim for damages.
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On limitation, the 40-day delay is not automatically fatal. The period runs from communication of the decision to the affected party, not from the date of the award. Pema learned of the award from a newspaper notice, and the record does not show that a reasoned order was served on it. If the appeal period is 30 days from communication, Pema may be within time, or may seek condonation for the short delay by showing it acted diligently once it learned of the decision. The Dzongdag's objection should be rejected if no proper notice was given; an authority cannot rely on its own failure to notify.
On damages, Pema cannot recover the lost profit of the contract, because it held no contractual right against the Dzongkhag and the award was never made to it. Its remedy lies in judicial review - quashing and, if the contract is still unperformed, an order to re-evaluate. If the contract is already substantially performed, the court may decline to disturb it and confine relief to a declaration and costs. Damages would require proof of a distinct legal wrong, such as misfeasance, which these facts do not establish.