Tripura High Court
Swapna Printing Works Private Ltd. ... vs The State Of Tripura on 24 September, 2018
Equivalent citations: AIR 2019 TRIPURA 16
Author: Ajay Rastogi
Bench: Ajay Rastogi
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.828/2018
1. Swapna Printing Works Private Ltd. represented by its Director,
having its registered office at Doltala, Doharia, P.O. Ganganagar,
District- North 24 Parganas, Kolkata-700132.
2. Shri Souvik Bhattacharjee, S/o. Arunava Bhattacharjee,
Director, Swapna Printing Works Private Ltd. having its registered
office at Doltala, P.O. Ganganagar, District- North 24 Parganas,
Kolkata-700132.
---- Petitioners(s).
Versus
1. The State of Tripura, represented by Secretary to the
Government of Tripura in the School Education Department having
its office at Civil Secretariat, New Capital Complex, Agartala, P.O.
Kunjaban, District- West Tripura.
2. State Council of Educational Research and Training,
Government of Tripura, having its office at Abhoynagar, Agartala,
West Tripura, P.O. Abhoynagar.
3. Director, SCERT, Government of Tripura, Abhoynagar,
Agartala, West Tripura.
---- Respondent(s).
For Petitioner(s) : Mr. T.D. Majumder, Advocate,
Mr. K.K. Pal, Advocate.
For Respondent(s) : Mr. A.K. Bhowmik, Advocate General,
Mr. M. Debbarma, Addl. G.A.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
Judgment
Fit for reporting : Yes.
Judgment reserved on : 17th September, 2018.
Date of Judgment : 24th September, 2018.
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By the Court (Per Hon'ble Mr. Justice Ajay Rastogi):
The instant writ petition has been filed at the instance of
one of the bidder petitioner who had participated in the e-tender
initiated at the instance of the Director, State Council of
Educational Research and Training, Tripura (for short „SCERT‟)
from such of the firms of the Indian origin and operating within
India having sufficient multicolour printing, binding and supply
facilities for printing multicolour/bi-colour cover pages and inner
pages of textbooks of Classes-I to XII for the academic session-
2019 dt.24th July, 2018 in online bidding process but the bid of the
petitioner was declared technically non-responsive/disqualified by
the Tender Screening Committee/Tender Evaluation Committee in
its meeting held on 28th August 2018 on the premise that the
petitioners failed to upload the "factory registration certificate".
[2] The indisputed facts, in brief, which are delineated for the
present purpose, are that the Director of State Council of
Educational Research and Training, Tripura (SCERT) invited an
item wise e-tender from the firms of the Indian origin and
operating within India having sufficient multicolour printing,
binding and supply facilities for printing multicolour/bi-colour
cover pages and inner pages of textbooks of Classes-I to XII for
the academic session-2019 vide its bid documents dt.24th July,
2018 and to be opened for eligible bidders/printers/firms until 16th
August, 2018 at 9.00 a.m. for the various works. It was pointed
out that bidders shall participate in bidding only in online through
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website through e-procurement portal of the State of Tripura and
will not allow any bidder to attempt bidding after the scheduled
date and time and submission of bids physically was not
permitted.
[3] It may be relevant at this stage to note that the bidding
was invited for various categories of Group A-F but the petitioner
bid was for Group A-E and he was not the Bidder for category
Group F. That under the Bid document there was instructions to
bidders that after the bidder get himself enrolled in the e-
procurement portal and obtained User ID and Password for
bidding was permitted to download the DNIT and all the other
materials including printing, binding and supply of textbooks
mentioned in Group-A to Group-F in the DNIT and was excepted
to go though the instructions/terms & conditions/eligibility criteria
of the DNIT.
[4] As per the list of dates originally notified in the bid
document, bid submission was ended on 16th August, 2018 at
9.00 a.m and Technical Bid opening date and time was on 16th
August, 2018 at 16.00 hours and the financial Bid date and time
was to be separately notified to all technically shortlisted/qualified
bidders and at the stage of technical evaluation the bidder was
supposed to satisfy at the pre-qualification criteria as referred to
in the clause („D‟) submission of Bids under clause 14 of the
Instructions to Bidders which the Bidder was supposed to scan &
upload the Technical Bid documents required during actual bidding
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along with the tender as referred to under Clause 3 and 3.2 read
with Clause 14.2 and the bid document. All such documents which
are to be scanned and uploaded have been specifically indicated
by the authority under Clause 14.2 (a) & (b) respectively although
while submitting the bid document it was required to re-visit once
again, going through the check list to accompany the bid. I
consider it appropriate to quote the extract of the relevant Clauses
of the bid document to which we are presently concerned from the
instructions to the bidders made available are quoted hereunder :
"3. Pre-Qualification date of the Bidders
3.1 The bidder should satisfy the pre-qualification criteria
as fixed here under and in case any bidder is not fund
satisfying any of such criteria as fixed, his/her bid will be
summarily rejected. The bidder shall furnish the following
particulars in the PDF of 100 dpi resolution.
a) Copies of documents relating to the (i) Registration of
the firm/partnership deed/Articles of Association, (ii)
Professional Tax clearance certificate (iii) valid GST
Registration and Tax clearance certificate (iv) Pan card of
the bidder.
3.2 Qualification/Eligibility Criteria: The tenderer shall
have to upload & submit the following documents along
with the Tender Document, otherwise their bid will
summarily be rejected.
(i) Up to date valid Trade License issued by Competent
Government Authority.
(ii) Valid Factory Registration Certificate as per Factory Act,
1948 and Rules made there under issued by Competent
Government Authority.
(iii) List of printing machines and allied machineries to be
engaged in the printing process with due specification(s).
(iv) Copy of the Income Tax Return of the preceding
financial year with copy of PAN Card.
(v) Up to date Professional Tax Clearance Certificate.
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(vi) Copy of valid GST Registration Certificate and other
Tax Clearance Certificate.
(vii) Proven records of printing i.e. printing, binding and
supply of at least 2 lakhs copies of Textbooks during
preceding 5 years of any recognized Educational
Board/University or Government Body/PSU/Private Institute
within the territory of India. Proven record for the purpose
means tangible documents like a work order, a credential
certificate or any other documents issued by any
Government Department within the territory of India.
Provide the supply order details in year-wise.
(viii) Last 3(Three) years Audited Balance Sheets for the
year 2015-16, 2016-17 and 2017-2018 should be
produced. Total yearly turnover should be at least
Rs.50,00,000/- (Rupees Fifty Lakhs) only. Self-certified
Balance Sheet for the year 2018-19 may be entertained.
(ix) Bidders having valid Eligibility Certificate in respect of
procurement preference, exemption from payment of
Earnest Money Deposit shall be given as per norms.
(x) Up to date Labour Registration Certificate issued by the
Competent Govt. Authority.
(xi) An Affidavit (in original duly authenticated by a Notary)
executed by the bidder on stamp paper of Rs.20/-(Twenty)
only should be uploaded & submitted as per Annexure-III.
(xii) The bidders should fulfill the eligibility criteria and also
upload & submit documentary evidences in support of
fulfilling the conditions while uploading & submitting the
Technical Bid.
7. Clarification on Bid Documents
7.1 A prospective Bidder requiring any clarification on Bid
documents may seek clarification through e-mail:
publication [email protected]. The Bid Inviting authority
will also respond to such clarification through e-mail.
However, Bidder may contact the Bid Inviting Officer at the
address indicated in the NIT for clarification on the bid
document.
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D. Submission of Bids
14. Submission of Bids:
14.1 The Bidders, who intend to participate in the bid, shall
submit their Pre-Qualification and other details etc., in the
Standard formats prescribed in the Tender Documents
through the application https://tripuratenders.gov.in
14.2 List of documents to be scanned and uploaded:
A. Documents to be kept in "My Document" folder of
Bidder: The following documents, as per standard format
detailed in Tender Document, or as per standard dictated
by Regulatory/Statutory bodies, shall be scanned and
uploaded along with the bid document as per requirements.
For ease of biding, the bidders shall scan the following
documents at 100 dpi resolution and upload them as per
the folder structure provided in his/her "My Document",
which is provided free of cost to all bidders, post his/her
registration in the application https://tripuratenders.gov.in.
This operation is expected to be completed, before
commencement of actual biding by the bidder.
Sl. Folder Name Documents to be uploaded
1. BIS/Mfg Copies of documents relating
Lie/Dealership to the
(i) Registration/License of the
firm/Printer/Bidder/Partnership
deed/Articles of Association
2. DNIT (ii) Downloaded Tender
Document Document as a proof of
acceptance of terms conditions
in the Tender Document.
3. Tax related Copies of documents relating
document to the (iii) Professional Tax
Clearance Certificate, (iv) GST
& other Tax Clearance
Certificate,
During the actual bidding, the bidder shall select/check these
documents from his/her My Document, which will ensure
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completion of biding within the same session, even if the bidder
is connecting to the application over a slow speed network.
B. Technical Bid Documents required during actual
Bidding:
Sl. Technical Documents to be uploaded
No.
1. Scanned copy of "Demand Draft" of any Nationalised
/Scheduled Bank guaranteed by RBI Against EMD and
scanned copy Demand Draft of any Nationalised/
Scheduled Bank guaranteed by RBI towards Tender
Fee, both in a single PDF.
2. Scan copy of the PAN Card of the bidder.
3. Declaration of the Bidder as per Annexure-II,
4. Affidavit as per Annexure-III
5. Undertaking of the bidder as per Annexure-IV
6. Details of EMD as per Annexure-V
7. Proof of Average Turn Over as per Annexure-VI
8. Details of Machines as per Annexure-VII
9. Certificate regarding capacity of Printing, Binding &
Supply as per Annexure-VIII
10. Copy of the Income Tax Return of the preceding
Financial Year
11. Copy of valid Trade Licence issued by competent
authority
12 Copy of Up to date Labour Registration Certificate
issued by competent authority
13. Proven records of Printing, Binding & Supply of at
least 2 lakhs copies of Textbooks during preceding
five years. Provide Supply Order details in year
wise.
Note: Bidder shall fill the necessary information & put signature with
stamp/seal, and then scan them into PDF (in 100 dpi resolution).
Finally those documents should be uploaded (with digital signing).
C. Financial Bid Documents required during actual Bidding: In
addition to the technical documents, the following documents are also
to be uploaded to the e-Procurement application during actual
bidding.
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Sl. No. Financial Documents to be uploaded
1. Bill of Quantity
Indisputably in clause „B‟ Technical Bid documents required
during actual bidding there is no reference of "factory registration
certificate".
[5] As per the scheduled dates which are notified in connection
with the bid the Technical Bid was to be opened on 16th August,
2018 at 16.00 hours but as per records it was opened by the
tender screening committee in its meeting held on 28th August,
2018 at 12 noon for Technical evaluation of the bid document
uploaded by the bidders. It reveals from the record that in all
there were 11 bidders who had participated in the e-tender
process including petitioner and according to the tender screening
committee, 4 bidders were found to be responsive/qualified and
the rest of the 7 bidders were declared to be non-responsive
/disqualified bidders, amongst them one was the petitioner.
[6] The tender screening committee‟s evaluation sheet has
been placed on record. It reveals that all the other bidders who
were declared to be non-responsive/disqualified there are number
of deficiencies which they failed to annex the relevant necessary
documents desired by the authority while participating in the e-
tender but as regard to the present petitioner is concerned, he
was declared to be non-responsive/disqualified only on the
premise that he failed to enclose "factory registration certificate
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not uploaded" and rest according to the respondents even after
filing counter affidavit the petitioner‟s bid document was found to
be in order in all respect by the Tender Evaluation Committee.
Indisputably, there is no reference of the "factory registration
certificate" in Clause 14.2 „B‟ Technical Bid documents required for
actual Bidding.
[7] If we look into the terms and conditions of the tender
document to be scanned and uploaded in clause 14.2 of the Bid
document reference has been made of the series of documents
which has to be enclosed with the tender document and Para
3.2(ii) indicating of "valid factory registration certificate" but it
appears to be misleading for the reason that at the stage of
Technical Bid required for actual bidding as referred to under Para
14.2 the list of documents to be scanned and uploaded but
indisputably there is no reference of the "factory registration
certificate" and indisputably, the series of documents which are
specifically indicated to be scanned and uploaded under Para 14.2
(a) & (b) was complied with by the petitioner as per the terms &
conditions of the bid document.
[8] The petitioner was declared non-responsive/disqualified by
the tender screening committee/tender evaluation committee in
its meeting held on 28th August, 2018 holding that he has failed to
upload "factory registration certificate" the petitioner without any
loss of time submitted representation on 30th August, 2018
addressed to the Director, SCERT, Tripura in which it was
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specifically stated that in the format displayed on the e-
procurement of the State of Tripura there was no column to
upload the "factory registration certificate" & so also in clause
14.2(a) & (b) as such failed to take further course of action
although he is holding the factory registration certificate much
before the e-tendering process was initiated and enclosed the
hard copy for perusal and he was not going to be benefitted by
not uploading the same when it was in his custody and
accordingly requested that the requirement of uploading a factory
registration certificate was not an inevitable condition of the
contract having adverse consequence and rejection of his tender
on this premise may be re-looked and his financial bid may also
be opened which was scheduled on 31st August, 2018.
[9] Indisputably, his representation dt.30th August, 2018 was
received in the office of the respondents on 31st of August, 2018
and he was responded vide Annexure-R/1 placed by the
respondents on record along with their counter affidavit stating
inter alia that although it is true that there was no column to
upload the factory registration certificate but the e-procurement
system, Government of Tripura indicates tender details
(Annexure-5) and the documents which were specifically indicated
are at Sl. No.1 to 6 and Sl. No.7 referred to "other technical
details" and this according to the respondents includes the
"factory registration certificate" which the petitioner failed to
upload and accordingly his representation was turned down under
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communication dt.31st August, 2018 and the respondents
simultaneously convened the meeting of the financial bid
evaluation committee on 31st August, 2018 at 4.00 P.M. and out
of the 4 bidders who are found to be responsive/qualified bidders,
there was only solitary bidder for Group-F and since there was no
effective bidders for Group A to E and the petitioner was
eliminated on the hyper technical reason.
[10] The comparative statement of the financial bid evaluation
held its meeting held dt.31st August, 2018 has been placed by the
respondents on record is as follows :
**** A comparative statement has been generated through online
eprocurement portal was downloaded and reference has been taken
from that statement. Now a comparative statement of quoted rates
offering by the above 4(four) responsive/qualified bidders found from
BOQ is given below:
Rate offered
Sl. Name of Bidders Group- Grou Grou Grou Grou Group- Rema
No A p-B p-C p-D p-E F rks
.
1. CDC Printers Pvt. Ltd. 2.00 2.09 2.05 2.15 2.13 Not Quoted
2. K.C.Printing & Allied 1.92 1.94 1.99 1.99 2.09 1.94 Works
3. Kalpana Offset Pvt. Ltd. 1.97 Not Not Not Not Not Quote Quot Quot Quot Quoted d ed ed ed
4. Saraswati Print Factory 1.84 1.87 1.86 1.86 1.90 Not Pvt. Ltd. Quoted At the same time, the financial bid of the petitioner which has not been disputed by the respondents just for comparison, it is although subject to further evaluation by the financial bid evaluation committee still considers it appropriate to quote the extract of the financial bid which is as follows:
Page - 12 of 28 Rate offered Sl. Name of Bidder Group- Grou Grou Grou Grou Group- Rema No A p-B p-C p-D p-E F rks .
1. Swapna Printing Works 1.37 1.54 1.54 1.54 1.62 Not Pvt. Ltd. Quoted Apparently, the financial bid of the bidder L-1 prima facie is of 9.33 crores at the same time the proposed financial bid of the petitioner which although is still to be examined by the financial bid advisory committee is of 7.61 crores which is almost 1.72 crores less than the price evaluation bid of L-1 considered by the financial bid advisory committee.
[11] The financial bid evaluation committee finally found Saraswati Print Factory Pvt. Ltd as a lowest bidder L-1 for Group A-E and K.C Printers Pvt. Ltd. for Group F. The comparative statement with recommendations of the committee has to be placed before the Supply Advisory Board who has been authorized to take final decision in the matter. At this stage the petitioners approached this Court by filing of a writ petition and notices were duly served, counter affidavit has been filed by the respondents and with the consent of parties the matter has been heard finally at this stage.
[12] Counsel for the petitioner submits that under instruction to the Bidders Para-D submission of Bids of the tender documents is in reference to the details of Technical Bid documents required during actual bidding to be scanned and uploaded and the e- procurement system of Government of Tripura on record Page - 13 of 28 (Annexure-5) P.114 commensurate with the list of documents as referred to be uploaded for actual bidding under clause 14.2(a) &
(b) and even under the separate head of other important documents Sl. No.7 of e-procurement portal of the State of Tripura no such specific details are indicated for the bidders to furnish particularly the "factory registration certificate". On the contrary the desired documents for actual bidding which the tendering authority expected from the bidders to furnish, their details have been referred to in important documents Sl. No.1 to 6 and this, indeed, covers the list of documents to be scanned and uploaded as referred to under clause 14.2 (a) & (b) respectively and Sl. No.7 was very vague of "other technical documents" and for such reason the petitioner was mislead and could not furnish the copy of "factory registration certificate" at the given point of time when e-tender was submitted by the petitioner for Group A-E although he was holding the valid document on the date when the e-tender was floated by the responders and in the given circumstances the decision of the Tender Evaluation Committee in holding the petitioner Bid to be non-responsive/disqualified for the aforesaid reason is an arbitrary exercise of power and needs to be interfered by this Court.
[13] Counsel further submits that under the list of critical date of the Bid circulated along with the NIT dt.24th July, 2018 the Technical Bid opening date and time was 16th August, 2018 at 16.00 hours although the petitioner had no grievance if it was Page - 14 of 28 postponed from 16th August 2018 to 28th August, 2018 but for opening date and time of financial bid it was to be separately notified may be to the technically shortlisted/qualified bidders but for the best of his information it was never notified and immediately on finalization of the Technical Bid on 28th August, 2018 without giving a breathing time on 31st August, 2018 the financial bid evaluation committee held its meeting and made its recommendation but still without any loss of time the petitioner approached to the authority to ventilate his grievance and to exhibit that his Technical Bid has been arbitrarily rejected by the authority has failed to examine in the right prospective and open the financial bid on 31st August, 2018 without affording a reasonable opportunity to the petitioner.
[14] Counsel further submits that the comparative statement of the financial evaluation of the Bidders made by the Financial Bid Evaluation Committee in its meeting held on 31st August, 2018 has been placed on record by the respondents (Annexure-R/4) and the petitioner being the bidder for the category Group-A to Group-E. The petitioner has come out with his financial bid which was made available to the respondents and it has not been disputed that in all the groups of "Group A to Group E" the petitioner‟s financial Bid offered is much lower than the rates of the bidder who has been considered as the lowest bidder L-1 and for all the Groups A to E the rates of L-1 is of 9.33 crores and the financial bid of the present petitioner of Group A to E is of 7.61 Page - 15 of 28 crores and the difference is of 1.72 crores and it has not been disputed by the respondents and to eliminate the petitioner in the given circumstances from being considered for financial evaluation of his bid may not be in public interest and the method adopted by the respondents eliminating the petitioner from participating in the financial bid is completely an arbitrary exercise of power and violative of Art.14 of the Constitution and that needs to be interfered by this Court.
[15] Counter affidavit has been filed by the respondents and justification has been tendered in Para 5 of the counter affidavit disclosing the narration of facts how the matter has been processed after the e-tenders have been invited by the NIT dt.24th July, 2018 and the justification attached to the reason assigned by the tender evaluation committee in holding the petitioner to be non-responsive/disqualified as he failed to upload the „factory registration certificate‟ and with justification that even if there is no such specific reference of document in the list of documents to be scanned and uploaded under clause 14.2 and so also in the e- procurement system of Government of Tripura and "other important documents" at Sl. No.7 referred to Technical details that includes the copy of "factory registration certificate." [16] The emphasis of the respondents‟ counsel is that clause 3.2 has to be read with clause 14.2 and that indicates that tenderer has to fulfill the eligibility criteria and submit the details of the documents and Para (ii) of Clause 3.2 indicates of "factory Page - 16 of 28 registration certificate" and that the petitioner has failed to upload which was the requirement of the tender document to be examined at the pre-qualification stage. According to the ld. Advocate General, no error was committed by the respondents in the decision making process and the petitioner has rightly been declared disqualified/non-responsive by the Tender Evaluation Committee in its meeting held on 28th August, 2018. [17] Counsel further submits that what is to be examined is the decision making process and not the final decision and if no error has been committed by the respondents in its decision making process which has been acted upon strictly in accordance with the terms and conditions of the tender document the action of the respondents in declaring the petitioner to be disqualified/non-responsive at the technical evaluation stage on account of failing to upload the "factory registration certificate"
being strictly in accordance with the terms and conditions of the tender document needs no interference of this Court. [18] Ld. Advocate General further submits that it is not the case of the petitioner that the action of the respondents was either imputed by malice or so unreasonable in absence whereof, the writ petition not sustainable and further submits that those who have been qualified by the tender evaluation committee in its meeting held on 28th August, 2018 are the necessary party to the petition and in their absence, the present writ petition is not maintainable and the petitioner is not entitled to claim as the right Page - 17 of 28 has been accrued to the bidders who have been declared to be technically qualified and considered by the financial bid evaluation committee in its meeting held on 31st August, 2018, in their absence, no relief could be granted to the petitioner. [19] I have heard counsel for the parties and with their assistance perused the materials available on record. The law relating to the award of contract by the State or its instrumentalities has been considered by the Apex Court in Tata Cellular Versus Union of India reported in (1994) 6 SCC 651 which is reproduced hereunder :
"77. The duty of the court is to confine itself to the question of legality. Its concern should be :
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality : This means the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
Page - 18 of 28 The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention". [20] The Apex Court in Air India Ltd. Versus Cochin International Airport Ltd. reported in (2000) 2 SCC 617 held as under :
"7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 488; Fertilizer Corporation Kamgar Union (Regd.) v. Union of India, (1981) 1 SCC 568; Asstt. Collector, Central Excise v. Dunlop India Ltd. (1985) 1 SCC 260, Tata Cellular v. Union of India, (1994) 6 SCC
651. Ramniklal N. Bhutta v. State of Maharashtra, (1997) 1 SCC 134 and Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though Page - 19 of 28 that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene."
[21] It is true that this Court has very limited scope of judicial review while invoking its writ jurisdiction u/Art.226 of the constitution of India in the matters relating to tender or award of contracts and whether it is by a private party or by a public body or the State is essentially a commercial transaction in arriving at a commercial decision based on commercial considerations but the basic requirement u/Art.14 is fairness and action of the State and non arbitrariness in essence and substance is the heart bit of fair play.
[22] Actions are indisputably amenable to judicial review but only to the extent that the State must act validly for a discernable reason not whimsical or for any ulterior purposes. It is also true that when some defect is found in the decision making process the court has to circumscribe its discretionary power u/Art.226 of the Constitution with a caution and should only exercise in furtherance of public interest which always has to be kept as a paramount Page - 20 of 28 consideration and the power of judicial review will not be permitted to be invoked to protect/individual interest at the cause of public interest in deciding such contractual/commercial disputes and if the court arrives to a conclusion the decision making process of authority either vitiated by unreasonableness or arbitrariness can always interfere in exercise of power u/Art.226 of the Constitution obviously with caution and in furtherance of paramount public interest and if arrives to a conclusion the overwhelming public interest requires interference it is always desirable for the court to interfere even within the limited scope of judicial review u/Art.226 of the Constitution in keeping the utmost public interest into consideration. It is also true that each case has to be looked into on its own facts and there can‟t be any straight jacket formula.
[23] Taking note of the Broad principles and if examine in the instant case I find that the necessary details which has been noticed by me are the indisputed facts and manifest in nutshell that the e-tender was invited by the Director, SCERT, Tripura vide tender document dt.24th July, 2018 for printing, binding and supply of textbooks and for maintaining transparency in the process bidding shall be online through website and no submissions of bid physically was permitted. In the instructions to bidders the bidders were permitted to download the DNIT and all the work of printing, binding and supply of textbooks mentioned in Group-A to Group-F in the DNIT and obviously one has to go Page - 21 of 28 through minutely with the instructions/terms & conditions/ critical dates/eligibility criteria of the DNIT.
[24] It may be relevant to note that the petitioner was the bidder for Group-A to Group-E and not for Group-F although there was a requirement under clause 1.14 that during technical evaluation process if there arises any confusion in any of the technical documents the tender evaluation committee could have called upon the bidder to bring the original document and produced the same in front of the tender screening committee and clause 3 relates to pre-qualification data of the bidders and clause 3.1 relates to the essential documents on which the authority has put much stress as referred to under clause 3.1(a) & (b) that indicates the details of documents to be furnished along with the tender document although it mentioned "valid factory registration certificate" but if that is being looked into with clause 14.2 which specifies the detail list of documents at the stage of Technical Bid required during actual bidding to be scanned and uploaded, it has escaped notice of the authority to include the requirement of a "valid factory registration certificate" and indisputably no reference has been made of scanning and uploading the "factory registration certificate" in the list of documents referred to in the tender document under clause 14.2 (a) & (b) in particular and if the document was not scanned and uploaded although referred to in clause 3.2 but the e-procurement system of the State of Tripura (Annexure-5) also nowhere specify to upload the factory Page - 22 of 28 registration certificate and that appears to be the reason for which the petitioner as his defence on record stands mislead although the petitioner has placed his "factory registration certificate" which he was holding much prior to the date before the tender process was initiated by the respondents and it is not the case of the respondents that document was withheld for some underlying interest or indirect gain or some hidden consideration but on the contrary there was no mentioned of the document "factory registration certificate" in clause 14 of the Bid document which specifically notify the Bidder to scan and upload the list of Technical Bid documents required during actual bidding does not contain the relevant document "factory registration certificate"
and that was the reason and defence of the petitioner that it could not be scanned and uploaded and his defence being mislead indeed cannot be ruled out and the tender evaluation committee in its meeting held on 28th August, 2018 declared the petitioner disqualified/non-responsive because of the aforesaid reason that he has failed to furnish "factory registration certificate" is technically not sustainable and deserves to be interfered with. [25] It may be noticed at this stage that 11 number of tenderers had participated in the bidding process which is also reflected from Annexure-R/2 dt.16th August, 2018 (Technical Bid opening summary) and the note sheet of the tender evaluation committee dt.28th August, 2018 indicates that 7 bidders have been disqualified/non-responsive, each of them have not uploaded Page - 23 of 28 the necessary documents which were essentially required and specifically indicated in clause 14.2 (a) &(b) and also in their e- procurement portal.
[26] The petitioner is the solitary bidder who was declared disqualified/non-responsive only for non-furnishing/uploading the "factory registration certificate" although along with the petitioner there is one more bidder N.A.P Printers Pvt. but he had failed to furnish balance sheet and work experience documents along with factory registration certificate and from perusal of the list of documents to be uploaded as referred to in clause 3.2 read with 14.2 of the bid document of which detail reference has been made and the e-procurement portal the requirement in the tender notice can be classified into two categories, those who have laid down the essential conditions of eligibility and others which are merely ancillary or subsidiary with the main object to be achieved. The authority issuing the tender may be required to enforce those documents specifically indicated rigidly and non-furnishing of ancillary or subsidiary requirement would not entail any adverse consequence.
[27] It is admitted by the respondents‟ counsel that although under clause 14.2 under the list of Technical Bid of documents required during actual bidding there is no reference of the document "factory registration certificate" to be uploaded and scanned nor it is specifically mentioned in the e-procurement portal of State of Tripura (Annexure-5) on record but the stress of Page - 24 of 28 the ld. Advocate General is that clause 3.2 refers to essential qualification and that could not be ignored and the petitioner could have at least consulted the Tender Evaluation Committee if at all there was any confusion must have sought a clarification as being referred to in Clause 7.1 of the document appears to be a hyper technical approach of the State Government just to non-suit the right of fair consideration in the tender process initiated pursuance to NIT dt. 24.07.2018.
[28] At the same time it has not been disputed by the respondents‟ counsel that the public interest has to be uphold and the financial bid evaluation committee in its meeting held on 31 st August, 2018 (Annexure-R/4) considered the Bidder responsive for Group A to E to which the petitioner is concerned and as proposed by the Financial Bid Evaluation Committee the lowest bidder for Group A to E, the financial bid of L-1 is of 9.33 crores and of the petitioner is of 7.61 crores and the difference of Rs. 1.72 crores is indeed substantial and keeping the public interest into consideration which is paramount for such hyper technical reasons with the defence of the petitioner that he was mislead because of a clear contradiction between the Clauses of the Bid document and Clause 3.2 and 14.2 in particular read with the e- procurement portal of the State of Tripura elimination of the petitioner for such consideration certainly be held to be unreasonable and arbitrary exercise of power of the authority who throughout intended to participate in the transparent process Page - 25 of 28 adopted by the respondents and action of the respondents from the materials which has come on record needs to be interfered by this Court.
[29] The submission of the respondents‟ counsel that those who have declared qualified/responsive in the Tender Evaluation Committee has to be implead as party respondent and in their absence the petitioner is not entitled to claim relief being a necessary party is without substance for the reason that we are at the stage when the Financial Bid Evaluation Committee in its meeting held on 31st August, 2018 has considered the financial bid of the 4 responsive/qualified bidders and made its recommendation with a comparative statement of rates of a lowest bidder in Group A-E is still a proposal to be considered by the Supply Advisory Board which has been authorized to take a final decision in the matter and indisputably, that is yet to be examined by the Board.
[30] Who could be a necessary or proper party to the writ petition has been examined by the Apex Court in the judgment in Udit Narain Singh versus Additional Member, Board of Revenue Bihar reported in AIR 1963 SC 786 which is reproduced hereunder :
"7. To answer the question raised It would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding.
Page - 26 of 28 The law on the subject is well settled : it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made out whose presence is necessary for a complete and final decision on the question involved in the proceeding."
[31] In the instant case it is the action of the State authority which is under challenge at the same time no final decision has been taken by the authority and there is no order passed in favour of any of the bidder at present which may culminate into conformity of right as being prayed for by the respondents‟ counsel and as such, either of the qualified/responsive bidder in the opinion of this Court is not a necessary party to the petition although it may not preclude the Court to add or implead proper parties for setting all the questions that may be involved in the controversy either suo moto or on the application filed at the instance of such proper party, but no application has been filed by either of the qualified/responsive bidder seeking permission of this Court to participate in the proceedings. Thus, as observed, either of the qualified/responsive bidder is not a necessary party to the petition and no application has been filed by the so called qualified /responsive bidder as they are not even the proper parties for adjudication of the dispute. The preliminary objection of the respondents‟ counsel is without substance and deserves to be rejected.
Page - 27 of 28 [32] The further submission of the respondents‟ counsel is that it is a decision making process and not the decision which may be looked into within the limited scope of judicial review u/Art.226 of the Constitution. On principle this Court is also of the view that it is a decision making process which is required to be examined within the limited scope of judicial review but in the instance case the very decision making process adopted by the respondents in the facts and circumstances of eliminating the petitioner on a technical ground of "factory registration certificate" not being uploaded which was not required for the bidder to furnish while the Technical Bid documents during actual Bidding to be scanned & uploaded as indicated in Clause-14.2 and same was in the e- procurement portal of the Government of Tripura under the head "other technical details" of the document referred to in Sl. No.7 being vague not considered to be essential documents for qualifying the Technical Bid and stress of the respondents on Clause 3.2 appears to be a decision which is hyper technical and unreasonable and is not in public interest to eliminate the bonafide bidder (the petitioner) from consideration to participate in the e- tender process and that needs to be interfered by this Court. [33] Since we are at the stage when the financial bid has been evaluated by the Financial Bid Evaluation Committee it its meeting held on 31st August, 2018 and as informed to this Court the matter has not been further processed because of the writ petition being filed to the Supply Advisory Board who will take the final Page - 28 of 28 decision in the matter, this Court considers it appropriate to observe that as the reason assigned by the respondents in eliminating the petitioner in holding him non-responsive /disqualified by the Tender Evaluation Committee in its meeting held on 28th August, 2018 is not sustainable and to be an apparent error in the decision making process which the Tender Evaluation Committee has committed in its meeting held on 28th August, 2018 needs interference by this Court. [34] Consequently, the writ petition succeeds and allowed. The decision of the respondents in holding the petitioner to be non- responsive/disqualified by the Tender Evaluation Committee in its meeting held on 28th August, 2018 qua the petitioner is hereby quashed and set aside and the respondents are directed to consider the bid of the petitioners by the Financial Bid Evaluation Committee expeditiously and the matter thereafter be placed before the Supply Advisory Board for final decision in the matter in terms of the bid document & in accordance with law. No costs.
CHIEF JUSTICE Certificate:- All corrections made in the judgment have been incorporated in the judgment.
Dipesh