Tender Award, Bias and Exhaustion of the Procurement Review Remedy
A municipality in Gandaki Province invited bids for 5,000 school desks with a deadline of 30 days. Bidder A quoted NPR 1.20 crore; Bidder B quoted NPR 1.30 crore. The evaluation committee rejected A's bid as 'unsatisfactory past performance' without giving A a hearing or disclosing the adverse reports. One committee member's brother is a director of B, and this was not disclosed. The municipality signed the contract with B on the same day A's lawyer wrote asking for reasons. A files a writ of certiorari in the High Court two weeks later, seeking cancellation of the contract. The municipality argues that (i) A did not exhaust the bid-challenge remedy before the Public Procurement Review Committee, (ii) the contract is already signed, so the writ is infructuous, and (iii) the court should not review the merits of a technical evaluation.
1. Is the writ maintainable despite the alternative remedy and the signing of the contract? Discuss the High Court's writ jurisdiction under Article 151 and the exceptions to the exhaustion rule.
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The writ is maintainable. Article 151 gives the High Court jurisdiction to issue certiorari and mandamus. The existence of a bid-challenge remedy before the Public Procurement Review Committee is an alternative remedy, not an absolute bar. The exhaustion rule yields where the complaint is of a breach of natural justice, bias, lack of jurisdiction or manifest unreasonableness. A's complaint is precisely of bias and of being condemned unheard.
The signing of the contract does not automatically make the writ infructuous; a contract procured through a vitiated process can be quashed, and the court can mould relief to avoid public loss. The two-week delay is not fatal.
The municipality's argument that the court should not review 'technical evaluation' is too broad: the court will not substitute its own marks, but it will review whether the evaluation was done fairly and on relevant criteria.
2. Identify the administrative-law grounds on which the evaluation and award can be challenged, with reasons.
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There are three grounds. First, audi alteram partem: A was rejected on 'past performance' without a hearing or disclosure of the adverse material. Second, bias: a committee member's brother was a director of B; the test is not proof of actual bias but a reasonable apprehension of bias in the mind of a reasonable observer. Non-disclosure aggravates it. Third, failure to give reasons: the Administrative Procedure and Review Act, 2055 requires administrative decisions to be reasoned and to follow fair procedure.
The rejection of the lowest bid without a comparable evaluation is also disproportionate and arbitrary. The cumulative effect is to vitiate the award.
3. What relief, if any, should the Court grant? Consider the rights of B and the public interest in completing the desks before the school year.
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The Court should quash the evaluation and the award by certiorari, and issue mandamus for a fresh evaluation by a reconstituted committee. If the desks have already been supplied, the Court may decline to unwind the contract but should award A the reasonable cost of bidding and consider compensation; it may also direct action against the members who failed to disclose the conflict.
B must be heard before any order that affects it. The public interest in having the desks before the school year is relevant to the moulding of relief, not to the legality of the process. The Court should not simply award the contract to A, because the tendering authority must re-evaluate.