Gauhati High Court
M/S J K Engineering And Agro Service vs The State Of Assam And 3 Ors on 29 February, 2024
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/4
GAHC010043312024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1174/2024
M/S J K ENGINEERING AND AGRO SERVICE
A PROPRIETORSHIP FIRM, HAVING ITS REGISTERED OFFICE AT HOUSE
HOLDING NO. 752, SIX MILE, VIP ROAD, KAMRUP (M), GUWAHATI- 781022,
ASSAM, REPRESENTED BY SRI KAMAL KRISHNA NATH, ITS SOLE
PROPRIETOR OF M/S J.K.ENGINEERING AND AGRO SERVICE, AGED
ABOUT 43 YEARS, SON OF SRI SRI DIBEN CHANDRA NATH, RESIDENT OF
HOUSE NO.11, NIZARAPARA PATH, LICHUBAGAN, HENGRABARI ROAD,
GUWAHATI, PIN- 781036, PHONE NUMBER- 91 94355-49494
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, DEPARTMENT OF HORTICULTURE AND FOOD
PROCESSING, DISPUR, GUWAHATI- 781006, ASSAM
2:THE SECRETARY
DEPARTMENT OF HORTICULTURE AND FOOD PROCESSING
GOVERNMENT OF ASSAM
DISPUR GUWAHATI- 781006 ASSAM
3:THE DIRECTOR OF HORTICULTURE AND FP
ASSAM
DIRECTORATE OF HORTICULTURE AND FOOD PROCESSING
ASSAM KHANAPARA GUWAHATI- 7810224
4:THE DEPARTMENTAL BID COMMITTEE/ TENDER EVALUATING
COMMITTEE
REPRESENTED BY ITS CHAIRMAN I.E.
THE DIRECTOR OF AGRICULTURE
GOVERNMENT OF ASSAM
AGRICULTURAL COMPLEX
KHANAPARA G.S.ROAD
GUWAHATI PIN- 78102
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Advocate for the Petitioner : MR. H. BURAGOHAIN
Advocate for the Respondent : SC, AGRI. DEPARTMENT
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 29.02.2024 Heard Mr. H. Buragohain, learned counsel for the petitioner, who submits that the grievance of the petitioner is with regard to the petitioner's bid being declared as unresponsive, due to non-submission of financial soundness certificate from a bank, in terms of ITB 2.11.1.
The case of the petitioner is that the petitioner submitted his bids, pursuant to the NIT dated 29.07.2023 for the "parallel rate contract of agro- machineries and minor tools for the years 2023-24 and 2024-25". It was a two bid system that was to be followed and the technical bids of the tenderers were opened on 26.09.2023. No intimation regarding the outcome of the technical bid was given to the petitioner. However, vide impugned Meeting Minutes of the Departmental Bid Committee meeting held on 22.02.2024 and the technical evaluation report made, the petitioner became aware of the fact that his technical bid had been declared as non-responsive, due to non-submission of financial soundness certificate, in terms of ITB 2.11.1.
The petitioner's counsel submits that in terms of Clause 2.11.1 of the ITB, there is no mention of financial soundness certificate as an essential document. However, Clause 2.11.1 (2)(xvii) states as follows:-
"Additional documents, if any, as mentioned in BDS".
Page No.# 3/4 Section iii comprises of the Bid Data Sheet (BDS) and it is provided in the said BDS that 2.11.1 of the ITB would pertain to Clause xv, which is in relation to "C. Preparation of Bids".
Clause "C. Preparation of bids" of the BDS provides at serial No. 8 as follows:-
"ITB 2.11.1 (XV)
8) Financial soundness certificate from Nationalized/ Scheduled Bank in India."
The petitioner's counsel submits that the financial soundness certificate required of the petitioner is only an ancillary condition and not an essential condition/document. Further, the financial soundness certificate, in terms of the BDS, is required under Sub-Clause xv of Clause 2.11.1 and not in terms of Clause xvii of 2.11.1. He further submits that even though no request had been made by the authorities for furnishing the ancillary document, i.e., the financial soundness certificate, the petitioner had submitted the same to the authorities on 03.01.2024, i.e., after the technical bids had been opened.
The petitioner had also submitted an appeal dated 26.02.2024, in terms of Section 38(1)(4) and Rule 26 of the Assam Public Procurement Act, 2017 and the Assam Public Procurement Rule, 2020, which has not been decided till date.
Mr. B., Choudhury, learned counsel for the respondent Nos. 1, 2, 3 & 4 submits that the petitioner's appeal dated 26.02.2024 has been rejected vide order dated 28.02.2024 issued by the Director Horticulture & Food Processing, Assam. He submits that the petitioner has an alternative remedy available, by filing a second appeal, in terms of Section 38 of the Assam Public Procurement Act, 2017, which the petitioner should avail. He also submits that the submission Page No.# 4/4 of a financial soundness certificate is an essential condition and not an ancillary condition.
On considering the above, list this matter again on 06.03.2024, to enable Mr. Choudhury to obtain further instructions.
Status-quo with regard to the NIT dated 29.07.2023 shall be maintained, insofar as it relates to items for which the petitioner has submitted price bids.
JUDGE Comparing Assistant