Gauhati High Court
WP(C)/1597/2024 on 17 June, 2025
GAHC010057382024
2025:GAU-AS:8031
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION NO.1597/2024
Sri Ranjit Baruah
Son of Late Purendra Nath Baruah
Proprietor of M/s Ranjit Baruah
Natun Tekela Gaon, A.T. Road
P.O. Mohanaghat, Dibrugarh
Pin- 786006
.......Petitioners
-Versus-
1. The State of Assam
Represented by the
Commissioner and Secretary to
the Government of Assam,
Health & Family Welfare
Department, Dispur, Guwahati-
781006.
2. The Secretary
Government of Assam
Health & F.W. (B) Department,
Dispur, Guwahati-781006.
3. The Director of Medical
Education, Assam
Sixmile, Khanapara, Guwahati
Pin- 781002.
4. The Principal-cum-Chief
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Superintendent
Assam Medical College Hospital
Dibrugarh- 786002.
5. The Superintendent
Assam Medical College Hospital
Dibrugarh- 786002.
6. The Tender Committee
Assam Medical College Hospital
Dibrugarh- 786002, represented
by its Chairman
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) :Mr. S. Sarma, learned Senior Counsel
assisted by Mr. A. Gautam.
For the Respondent(s) :Mr. B. Gogoi, learned Additional
Advocate General, Assam.
Date of Hearing :05.06.2025.
Date of Judgment :17.06.2025.
JUDGMENT & ORDER (CAV)
Heard Mr. S. Sarma, learned senior counsel
assisted by Mr. A. Gautam, learned counsel appearing for
the petitioner. Also heard Mr. B. Gogoi, learned Additional
Advocate General appearing for the State respondent.
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2. By way of this petition under Article 226 of the
Constitution of India, the petitioner is assailing the notice
inviting for re-tender (e-Tender) No.MCH/2024/948 dated
09.01.2024 for providing annual job contract of Dietary
Service to the patient admitted to Assam Medical College
Hospital, Dibrugarh issued by the Superintendent, Assam
Medical College Hospital, Dibrugarh.
3. The brief facts of the case are that pursuant to a
notice inviting for e-Tender through the e-Procurement
system for providing an annual job contract for dietary
service to the patient admitted to Assam Medical College
Hospital, Dibrugarh, bearing No. MCH/2023/25858 dated
03.10.2023 (hereinafter referred to as the first tender),
issued by the respondent Nos. 4 and 5, the petitioner, who
is a government-registered 1st Class Contractor and
Supplier, along with two other bidders, participated in the
said tender. Though, in the technical bid, the petitioner
qualified; however, the financial bid of the petitioner was
not opened.
4. It is the specific case of the petitioner that
thereafter, by notice inviting for re-tender (e-tender)
through the e-Procurement system for providing the same
services as that of the first tender to the patient admitted
to Assam Medical College Hospital, Dibrugarh, bearing No.
MCH/2023/29988 dated 16.11.2023, was issued by the
respondent Nos. 4 and 5 (hereinafter referred to as the
second re-tender). In the said tender process, four bidders,
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including the petitioner and proforma respondent No.7,
participated; however, the technical bids of all the bidders
were rejected. Accordingly, for the third time, another
notice inviting for a re-tender (e-tender) through the e-
Procurement system for providing the same service as that
the first tender and second re-tender were issued by the
respondent Nos.4 and 5 vide No. MCH/2024/948 dated
09.01.2024 (hereinafter referred to as the impugned third
tender).
5. It is the specific case of the petitioner that,
having noted the aforesaid advertisement in the newspaper
on 10.01.2024, the petitioner participated in the said
tender process. The proforma respondent No.7 also
participated along with the petitioner. Thereafter, the
technical bids of the two bidders were opened, and upon
being duly qualified, their financial bids were also opened.
However, though the petitioner was found to be the lowest
bidder, notice inviting tenders for the same services as that
of the first tender, second re-tender, and the third
impugned re-tenders were issued in the portal of
Government e-Market (hereinafter referred to as the GeM)
by Bid Document No. GEM/2024/B/4755482 dated
08.03.2024.
6. Aggrieved by the aforesaid issuance of a fresh
tender against the same services for which the petitioner
had been duly qualified as the lowest tenderer, the present
writ petition has been filed.
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7. Mr. S. Sarma, learned senior counsel appearing
for the petitioner, submits that the manner in which the
tender for the subject work has been re-tendered one after
the other despite there being participants and qualified
technical bids itself goes to show the arbitrariness involved
in the decision making process. He further submits that
though the petitioner in the third re-tender was the lowest
tenderer, the authorities, for reasons best known to them,
instead of settling the tender with the petitioner, issued a
fresh tender for the same work through GeM. He further
submits that under the relevant Procurement Act and
Rules, the authorities are bound to communicate the
decision of cancelling the tender and the reasons thereof to
the petitioner, and since the same has not been done, the
respondent No.4 has acted in a mala fide and illegal
manner. He further submits that the communication of
reasons is a facet of principles of natural justice.
8. He further submits that it appears from the
affidavit and subsequent documents placed by the State
Government that after the technical bids of the third re-
tender were opened and scrutinized, the petitioner as well
as the proforma respondent No.7 were found to be
qualified, and the tender committee had specifically taken
the decision that since the two bidders have been found
technically qualified and the tender has already been re-
tendered thrice, to open the financial bid of the qualified
tenderers. He further submits that accordingly the financial
bid of the petitioner as well as the proforma respondent
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No.7 were open; however, instead of settling the tender
with the petitioner, who's bid was the lowest, the
respondent authorities decided to issue fresh tender for the
same work.
9. He further submits that under the Procurement
Act and Rules, the decision for cancellation or for issuance
of a fresh tender has to be made by the procurement
authority i.e. respondent Nos.4 (Principal-cum-Chief
Superintendent, AMCH). However, it is evident from the
affidavit as well as the documents placed by the state
government that the respondent No.4 has merely endorsed
the decision of the tendering committee without any
independent application of mind as required under the
statute. He further submits that it is also evident that the
respondent No.4 in his affidavit-in-opposition filed before
this court and in the additional affidavit filed during the
course of the hearing, has taken a contradictory stand.
10. In support of the aforesaid submission as regards
the communication of reasons, he relies upon the following
decisions of the Apex Court:-
i) Ajantha industries Vs. Central Board of Direct
Taxes reported in (1976) 1 SCC 1001.
ii) C.B. Gautam Vs. Union of India reported in (1993)
1 SCC 78.
11. He further submits that the Office Memorandum
dated 08.01.2024 cannot overrule the provisions of the
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Procurement Act and Rules. He further submits that the
respondent authorities have not followed the provision of
the aforesaid Procurement Act and Rules while taking the
decision of fresh tender by ignoring the lowest bid of the
petitioner in the third re-tender. He further submits that
the impugned office memorandum is also not in
accordance with the provision of the applicable
Procurement Act and Rules. Accordingly, he submits that
the decision to issue a fresh tender for the same work is
totally illegal and arbitrary.
12. In support of his submission that when power is
provided to do a certain thing in a certain way, it should be
done in that way or not at all, he relies upon the following
decisions:-
i) Nazir Ahmad Vs. King-Emperor reported in (1935-
36) 63 IA 372.
ii) Dipak Babaria Vs. State of Gujarat reported in
(2014) 3 SCC 502.
13. In support of his submission that executive
instructions cannot override statutory provision, he relies
upon the following decisions:-
i) B. Srinivasa Reddy Vs. Karnataka Urban Water
Supply & Drainage Board Employees' Assn. and
others reported in (2006) 11 SCC 731 (II).
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ii) Rajasthan State Industrial Development &
Investment Corpn. Vs. Subhash Sindhi
Cooperative Housing Society & Ors reported in
(2013) 5 SCC 427.
14. In support of his submission that the filing of
affidavits is not an empty formality and contradictions
contained therein cannot be left unexplained by the
deponents, he relies upon the following decisions:-
i) Assam Company India Ltd. Vs. Bank of New
York Mellon, London reported in (2014) 5 GauLR
197.
ii) Greater Guwahati United Motor Transport
Association Vs. Gauhati Municipal Corporation &
2 Ors. reported in (1996) 2 GauLR 473.
15. Per contra, Mr. B. Gogoi, learned Additional
Advocate General appearing for the State respondent,
submits that the authorities, in view of the mandatory
requirement of procuring supply of the subject tender
through GeM, cancelled the third re-tender and issued the
fresh tender for the subject work by GeM. He further
submits that the aforesaid decision, having been taken as
per the endorsement of the tender committee as regards
the mandatory requirement of tender through GeM, which
is in accordance with the office memorandum issued under
the Procurement Act dated 08.01.2024, the said decision
ought not to be faulted. He further submits that the
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aforesaid decision being taken in the public interest, this
court ought not interfere with the issuance of the fresh
tender for the subject work.
16. He further submits that though the financial bid of
the selected bidders, i.e., the petitioner and the proforma
respondent No.7 in the third e-Tender, was opened,
however, in view of the decision of the tendering
committee to not go ahead and instead call a fresh tender
through mandatory GeM requirement, the respondent
authorities did not upload the result of the financial bid in
the portal.
17. In support of his aforesaid submissions, he relies
upon the following decisions:-
i) Ramchandra Murarilal Bhatted & Ors. Vs.
State of Maharashtra & Ors. reported in (2007) 2
SCC 588.
ii) Master Marine Services (P) Ltd. Vs. Metcalfe &
Hodgkinson (P) Ltd. & Anr. reported in (2005) 6 SCC
138.
iii) Jagdish Mandal Vs. State of Orissa & Ors. reported
in (2007) 14 SCC 517.
iv) Silppi Constructions Contractors Vs. Union of
India & Anr. reported in (2020) 16 SCC 489.
18. I have given my prudent consideration to the
arguments advanced by the learned senior counsel for the
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petitioner as well as the learned Additional Advocate
General for the state respondents and have perused the
material available on record. I have also considered the
citations cited at the bar.
19. It appears that for the subject work, i.e., the
annual job contract of dietary services to the patient
admitted to the Assam Medical College Hospital, Dibrugarh,
initially three tenders were issued: first on 03.10.2023,
second re-tender on 16.11.2023, and third re-tender on
09.01.2024. It appears that in respect of the first tender,
there were three bidders who participated; in the second
re-tender, there were four bidders who participated; and in
the third re-tender, there were two bidders who
participated.
20. It further appears that in respect of the first
tender, only one bid was found to be technically qualified,
and therefore, it was suggested for re-tendering. It further
appears that, in respect of the second tender, no bidders
were found qualified, and therefore, for the third time, a
re-tender had to be called for the subject work. The issue
involved in this writ petition being non-selection of the
petitioner despite being qualified and the lowest tenderer
in the third re-tender, I shall now look into the decision
making process as regards the third re-tender.
21. Apt at this stage to refer to the provisions of the
Assam Public Procurement Act, 2017 (hereinafter referred
to as the Procurement Act).
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22. Section 2(g) of the Procurement Act defines "e-
Procurement" as the electronic process wherein the
physical tendering activity is carried out online using the
internet and associated technologies. Section 2(q) of the
said Act defines "notification" as a notification published
in the official gazette. Section 2(r) of the said Act defines
"prescribed" as prescribed by rules made under the said
Act. Section 2(x) of the said Act defines "procuring
entity" to mean an entity referred to in subsection (2) of
Section 3. Section 3 of the said Act reads as under:-
"3. Application.-(1) This Act shall apply to all procuring
entities referred to in sub-section (2).
(2) For the purposes of this Act, "procuring entity" means,-
(a) any department of the State Government or its
attached or subordinate office;
(b) any State Public Sector Enterprise owned or
controlled by the State Government;
(c) any entity established or constituted by the
Constitution of India whose expenditure is met from
the Consolidated Fund of the State,
(d) any entity or board or corporation or authority or
society or trust or autonomous entity (by whatever
name called) established or constituted by an Act of
the State Legislature or an entity owned or controlled
by the State Government;
(e) any other entity which the State Government may,
by notification, specify to be a procuring entity for the
purpose of this Act, being an entity that receives
substantial financial assistance from the State
Government in so far as the utilization of such
assistance towards procurement is concerned.
(f) any procurement support agency or procurement
agent or procurement consultant involved in
procurement on behalf of the procuring entities
specified in clauses (a) to (e) above.
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(3) The State Government may, by notification, permit the
procuring entities to carry out procurement, financed
under the assistance from the multilateral development
banks, bilateral development agencies, or foreign
governments or pursuant to an inter-governmental
agreement, in accordance with the procurement
procedures stipulated in terms of such assistance or
agreement:
Provided that before granting permission, the State
Government shall satisfy itself that the procurement
procedures stipulated in terms of such assistance or
agreement, are in consonance with the basic norms of
public procurement specified in sub-section (1) of Section
4.
4) Subject to such rules as may be made in this behalf
consistent with the provisions of Sections 4 and 11, the
provisions of Chapters II and III shall not apply to,-
(a) any procurement the estimated cost or value of
which is less than the threshold value as Finance
Department of the State Government may, by
notification, specify for different classes or
categories of procurements or procuring entities;
(b) emergency procurement necessary for the
management of any disaster, as defined in clause
(d) of Section 2 of the Disaster Management Act,
2005 (Central Act No. 53 of 2005);
(c) the procurement under Assembly and
Parliamentary election urgency;
(d) procurement for the purposes of security or on
strategic considerations that the State Government
may, by general or special order, specify;
(e) procurement by a procuring entity under clause
(b) to clause (e) of sub-section (2) of Section 3 from
its subsidiary company or joint venture company in
which such procuring entity has more than fifty
percent share;
(f) any other procurement, as may be notified by
Finance Department.
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23. Reading Section 3 of the Procurement Act, it is
clear that the procuring entity means, among others, any
department of the state government or its attached or
subordinate office. In the present case, admittedly, the
respondent No.4 i.e the principal-cum-superintendent, is
the procuring entity.
24. Section 26 of the Procurement Act, which
provides cancellation of the procurement process, reads as
under:-
"26. Cancellation of the procurement process. (1) A
procuring entity may, for reasons to be recorded in
writing, cancel the process of procurement initiated by it,-
(a) at any time prior to the acceptance of the
successful bid; or
(b) after the successful bid is accepted in accordance
with sub-sections (4) and (5).
(2) The procuring entity shall not open any bids or
proposals after taking a decision to cancel the procurement
and shall return such unopened bids or proposals.
(3) The decision of the procuring entity to cancel the
procurement and reasons for such decision shall be
immediately communicated to all bidders that participated
in the procurement process.
(4) If the bidder whose bid has been accepted as
successful fails to sign any written procurement contract
as required, or fails to provide any required security for the
performance of the contract, the procuring entity may
cancel the procurement process after forfeiting the bid
security provided by the bidder to the State Government.
(5) If a bidder is convicted of any offence under this
Act, the procuring entity may,-
(a) cancel the relevant procurement process if the
bid of the convicted bidder has been declared as
successful but no procurement contract has been
entered into;
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(b) rescind the relevant contract or forfeit the
payment of all or a part of the contract value if the
procurement contract has been entered into
between the procuring entity and the convicted
bidder."
25. Reading the aforesaid provision, it is clear that
the procuring entity is empowered under the provision of
the Procurement Act to cancel the procurement process;
however, under subsection 3 of Section 26, the decision of
the procuring entity to cancel the procurement and the
reasons for such decision are required to be communicated
to all bidders that participated in the procurement process
immediately.
26. Section 28 provides the methods of procurement,
which reads as under:-
"28. Methods of procurement.-(1) Subject to the
provisions of this Act and the rules made thereunder, a
procuring entity may procure a subject-matter of
procurement by means of any of the following methods,
namely:-
(a) Open Competitive Bidding; or
(b) Limited Bidding; or
(c) Two stage Bidding; or
(d) Single Source Procurement; or
(e) Electronic Reverse Auction; or
(f) Request for Quotations; or
(g) Spot Purchase; or
(h) Competitive negotiations; or
(i) Rate Contract or Government E-Market (GeM);
(j) Framework agreement; or
(k) e-commerce; or
(l) community procurement for community driven
schemes; or
(m) Swiss Challenge; or
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(n) any other method of procurement notified by the
State Government satisfying the principles of
procurement contained in this Act and which the
State Government considers necessary in public
interest.
(2) The State Government may, by notification, declare
adoption of electronic procurement as compulsory for
different stages and types of procurement, and on such
declaration, every requirement for written communication
under this Act shall be deemed to have been satisfied if it
were done by electronic means.
(3) In procuring a subject-matter of procurement, every
procuring entity shall follow the detailed procedure in
respect of the relevant method of procurement as may be
prescribed in the Rules made under this Act."
27. Reading the aforesaid provision, it is clear that
under subsection 1 of Section 28, the methods of
procurement, inter-alia, are open competitive bidding, rate
contract, or GeM. Subsection 2 of Section 28 provides that
the state government may, by notification, declare
adoption of electronic procurement as compulsory for
different stages and types of procurement, and on such
declaration, every requirement for written communication
under this act shall be deemed to have been satisfied if it
were done by electronic means. Admittedly, in the case in
hand, the subject procurement is done by way of electronic
means. Further, it is clear that under subsection 3 of
Section 28 of the said Act, every procuring entity shall
follow the detailed procedure in respect of the relevant
method of procurement as may be prescribed in the rules
made under this Act.
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28. Section 29 of the Procurement Act provides the
manner in which the open competitive bidding is done,
which reads as under:-
"29. Open competitive bidding.-(1) Every
procuring entity shall prefer the open competitive
bidding as the most preferred method of
procurement to be followed.
(2) Open competitive bidding may also be
followed in case of two stage bidding in terms of
Section 32, electronic reverse auction in terms of
Section 33 and rate contract in terms of, Section
36.
(3) The procuring entity may follow the pre-
qualification procedure specified in Section 18 and
invite bids from pre-qualified bidders only.
(4) Where the procuring entity chooses a
method of procurement other than the open
competitive bidding, it shall record the reasons and
circumstances thereof.
(5) In case of an open competitive bidding,
the procuring entity shall invite bids by publishing
an invitation to bid on the State Public Procurement
Portal and in at least one such other manner as
may be prescribed."
29. Reading the aforesaid provision, it is clear that
opening competitive bidding is the most preferred method
of procurement to be followed by every procuring entity.
However, if the procuring entity wants to adopt any other
method as provided under Section 28 of the said Act, it is
required to record the reasons and circumstances thereof.
30. Sections 36 of the Procurement Act provides the
manner in which the rate contract and GeM are done,
which reads as under:-
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"36. Rate contract and Government E-Market (GeM).
(1) Rate Contract:
(a) A procuring entity may choose to engage in a rate
contract procedure in accordance with the rules as
may be made in this behalf, under this Act where it
determines that
(i) the need for the subject-matter of procurement
is expected to arise on an indefinite or repeated
basis during a given period of time;
(ii) by virtue of the nature of the subject-matter of
procurement, the need for it may arise during a
given period of time.
(b) A procuring entity may award a rate contract on
the basis of open competitive bidding or by means of
other procurement methods in accordance with the
provisions of this Act.
(c) Subject to the rules as may be made in this behalf,
the procedure for rate contract shall include the
following, namely:-
(i) the manner in which rate contract is to be
entered into, including selection of the method of
bidding to be followed; and
(ii) the manner in which a procurement contract
has to be entered into using rate contract
procedure.
(2) Government E-Market (GeM):
(a) Director-General Supplies and Disposal
(DGS&D) hosts an online Government e-Market
Place (GeM) on pilot basis, for common use goods
and services. The electronic and online
procurement process on GeM is end to end from
placement of supply order to payment to suppliers.
(b) Government Procuring Entities (including State
Government entities) at their option may view,
compare and directly purchase online, the Products
and services offered by various suppliers on GeM
under such conditions, as may be prescribed by
the Government.
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(c) The procedure and details of procurement thru
the GeM shall be such as may be prescribed by the
Government.
31. Reading the aforesaid provision, it is clear that a
procuring entity is also empowered to adopt a rate contract
procedure, which can be on the basis of open competitive
bidding or by means of other procurement methods as
provided under the said Act. It is further clear that the
procedure for the rate contract is required to be laid down
in the rules. It is further clear that the GeM is also adopted
by Director General Supplies and Disposal on pilot basis for
common use of goods and services and such electronic and
online procurement process on GeM is end to end from
placement of supply order to payment to suppliers. It is
further clear that it is the discretion of the procuring entity
to view, compare, and directly purchase online the
products and services offered by various suppliers on GeM.
It is further clear that the procedure and details of such
procurement shall be prescribed by the government.
32. Section 55 of the Procurement Act provides the
power of the state government to make rules, inter-alia,
for providing the procedure in respect of various methods
of procurement under Section 28 of the said Act. That
apart, it appears that under Section 56 of the said Act, the
state government is also empowered to issue guidelines
giving details of procedure or general forms or standard
specifications and manuals required for giving effect to the
provisions of this Act and the Rules made thereunder.
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33. Apt also to refer to the relevant rules of the
Assam Public Procurement Rules, 2020 (hereinafter
referred to as Procurement Rules). Rule 24 of the said
rules reads as under:-
"24. Methods of procurement and procedures
thereof.- Every procuring entity shall follow the
procedure in respect of the chosen methods of
procurement as mentioned in sub-section (1) of
Section 28 of the Act for a particular procurement.
A procuring entity, may choose different methods of
procurement specified in sub-section (1) of Section
28 of the Act, if deemed more advantageous and
appropriate after recording the specific reasons
and circumstances in writing for so choosing in
exception to the preferred method i.e. Open
Competitive Bidding method in terms of sub-section
(4) of Section 29 of the Act, such specific reasons
and circumstances shall be recorded in the case
file and clearly noted in the procurement register
indicating the name and designation of the
procurement entity making the decision.
Procedures to be followed for various methods of
procurement are as follows:-
(A) Procedure for Open Competitive Bidding :-
(i) Subject to the provisions in the Act and the
general principles of procurement, the procedure
laid down under these rules shall be followed by
all procuring entities in cases of all procurement
through Open Competitive Bidding.
(ii) There shall be no restriction on participation of
eligible bidders in Open Competitive Bidding. This
shall include eligible bidders not registered with
the procuring entity as well as foreign bidders
bidding in Indian rupees. If bidders are required to
be pre-qualified, the procedure for pre-qualification
of bidders prescribed under these rules shall be
followed.
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(iii) The date for opening of bids shall be fixed after
at least twenty one clear days counted from the
date of publication of the latest advertisement
inviting bids.
(iv) Open Competitive Bidding at global level, i.e.
International Competitive Bidding (ICB), with
provisions to bid in the currencies under the
notified Basket of Currencies of the Reserve Bank
of India, shall be resorted to in cases where :-
(a) The required specifications, quality of the
subject-matter are not available within the nation,
and alternatives available in the nation are not
suitable for the purpose;
(b) There is requirement for compliance to specific
inter- national standards in technical specifications
and sufficient number of competent domestic
bidders that are likely to comply with these
required technical specifications and quality are
not available;
(c) There is a suspected anti-competitive behaviour
attracting provisions of Competition Act, 2002
(Central Act 12 of 2003) as amended among
indigenous bidders;
(d) Any other reason for which International
Competitive Bidding is considered to be
appropriate by the procuring entity or the
concerned Administrative Department :
Provided that date for opening of bids shall be
fixed after at least forty-five clear days counted
from the date of publication of the latest
advertisement inviting bids in case of International
Competitive Bidding.
(B).....
(C).....
.........
(H)......
(I) Rate contract and Government E-Market (GeM) :-
(1) Rate Contract :-
(i) Subject to the satisfactions of the conditions contained in clause (a) of sub-section (1) of Section 36 of the Act, a procuring entity may engage in a Page 20 of 60 rate contract procedure in accordance with the provisions laid down herein below.
(ii) The procedure for concluding rate contracts and for procurement in the rate contract method shall consist of two phases. In the first phase, the rate contracts, including parallel rate contracts, where required, shall be concluded through Open Competitive Bidding without any commitment of quantum of procurement. In the second phase, procurement of the particular subject-matter in the required quantities, as essential and necessary to satisfy the public need, may be made from time to time by issue of supply or work orders at those rates during the period of the rate contract.
(iii) In the first phase, single envelope or two envelope bids, in terms of Section 13 of the Act, shall be invited by issuing Notice Inviting Bids as in the Open Competitive Bidding method and incorporating the following conditions in the bid documents :
(a) In the Bidding Documents, including NIB, approximate quantities of the requirement estimated on the basis of the annual off take shall be indicated along with the specifications thereof wherein it shall also be specifically mentioned that no minimum quantity of procurement is guaranteed;
[(b) The period of the rate contract shall be clearly indicated in the Notice Inviting Bids and the other Bidding Documents. The period of rate contracts shall normally be one year from the date of contract but may be shorter if the procurement entity arrives at a reasoned conclusion that market prices would fall significantly in the short term. A shorter period may be selected and specified in the bidding documents by the procuring entity after recording the reasons thereof in writing in the case file which shall form part of the procurement records;] Page 21 of 60
(c) The terms and conditions of the rate contract, including provision for liquidated damages, shall be similar to those prescribed for procurement by Open Competitive Bidding;
(d) A clause to the effect that the procuring entity or the rate contractor are both entitled to withdraw or cancel the rate contract by serving due notice on such other giving not less than fifteen (15) days' time;
(e) A clause to the effect that the procuring entity reserves its right to renegotiate the price with the rate contract holders during the validity of the rate contract;
(f) The rate contract shall be entered into for price, without commitment for quantity and time of supply of the subject-matter of procurement, with the bidder of the lowest riced bid or most advantageous bid fulfilling the laid down eligibility and qualification criteria including past performance against such rate contract, availability of ISI mark or service centres across the State and such other criteria as required and these conditions as applicable shall be specified in the bidding documents;
(g) The procuring entity shall also reserve its right to conclude parallel rate contacts with different bidders, in addition to the responsive bidder submitting the lowest priced bid or most advantageous bid, but at the rates of such bidder;
(h) That, in case the price quoted by the lowest responsive bidder is not reasonable or found to be high, the price may be negotiated with lowest responsive bidder with whom the rate contract may be concluded consequent only upon lowering of the bid price to the desired level. If otherwise, fresh bids shall be invited;
(i) The prices under a rate contract shall be invariably subject to 'price fall clause' and this shall be specified in the bidding documents. A Page 22 of 60 clause regarding price fall shall be incorporated in the terms and conditions of rate contract:
Explanation I: A price fall clause is a price safety mechanism in rate contracts which provides that if the original rate contract holder quotes a lesser price or reduces its price to render similar goods, works or services of a price lower than the rate contract price to anyone in the State, at any time, during the validity of the rate contract, the rate contract price shall be automatically lowered or reduced accordingly to such lesser or reduced price quoted for the subject-matter of procurement with effect from the date of such quoting or reducing, and the rate contacts shall also be amended accordingly.
Explanation II: In such cases, the firms holding parallel rate contracts shall also be given opportunity to reduce their price by notifying the lowered or reduced price allowing them fifteen days' time to intimate their acceptance to the revised price. Similarly, if a parallel rate contract holder firm reduces its price during the currency of the rate contract, its reduced price shall be conveyed to other parallel rate contract holders as well as the original rate contract holder for corresponding reduction in their prices. If any rate contract holders do not agree to the reduced price, further transaction with it shall not be conducted;
(iv) If, consequent to invitation of bids, only one bid is received, or consequent to technical evaluation, if only one bid is found eligible or qualified, such bid shall be termed as 'single bid' in respect of that subject-matter of procurement or item and in all cases where such single bid is received, bids may be handed on the lines of procedure laid down in sub-rule (20) of Rule 23.
(v) Rate contracts for Machine Tools, Information Technology Product, Original Equipment Manufacturer and Ancillary spares and other similar such products, where the design feature, performance parameters, etc., vary significantly among the products of different manufacturers and even between different models of the same Page 23 of 60 manufacturer and where equitable comparison of prices of such products or services is not feasible, may be finalised and concluded on the offered percentage of discount on Net Dealer Price (NDP) or discounted MRP basis, generally known as "Catalogue basis".
(vi) Parallel rate contracts :-
(a) If the quantity of the subject-matter of procurement required is beyond the capacity of the lowest bidder or the subject-matter of procurement is of a critical or vital nature, rate contracts may be entered with more than one bidder in the order of their standing in the final evaluation of bids but at the successful lowest bid rate as parallel rate contracts :
Provided that such provision for parallel rate contracts is specified in the bidding documents.
(b) Where parallel rate contracts are needed though the price of lowest responsive bidder is reasonable, the rate contract shall first be awarded to such lowest responsive bidder. Thereafter, the price of such lowest bidder shall be counter- offered to the responsive bidder quoting the next higher rate, or rates in case more than one parallel rate contractors are needed, with intimation to the lowest bidder, asking them if they so desire to reduce their price and send revised bids accordingly in sealed covers or on e-procurement platform, to be opened in public at a specified place, date and time as per the prescribed procedure. Bidders who accept the counter-offered rate or rate lower than it shall be awarded parallel rate contracts. If the lowest bidder also lowers its rate in its revised offer, the same may also be accepted with effect from that date and its rate contract amended accordingly. All such parallel rate contracts shall be awarded simultaneously for the sake of transparency.
(c) In cases where parallel rate contracts are necessary, and where even the bid quoted by the Page 24 of 60 lowest responsive bidder is not reasonable, price negotiation shall be conducted with that bidder in the first instance. The rate contract may be concluded if that bidder agrees to bring down the price to the desired level and that price may be counter offered to other responsive bidders for further action in identical manner as prescribed in clause (b) above. If however, the lowest bidder does not agree to reduce its price in the first instance itself, then the price which has been decided as reasonable may be counter offered to all the other responsive bidders who had quoted higher price and also to the lowest bidder for further action as in clause (b) above.
(vii) In the second stage, the supply or work order shall be placed to the rate contractor as and when needed at the contracted price for supply or execution of the required quantity of the subject-
matter of procurement mentioning the place of supply or execution and the delivery schedule.
[(viii) The procuring entities shall ensure new rate contracts become operative right after the expiry of the existing rate contracts without any gap. In case it is not possible to conclude the new rate contracts due to unavoidable reasons, the existing rate contracts may be extended at the same rates, terms and conditions for a further period not exceeding another one year after ascertaining that the wholesale market prices of the subject-matter of procurement or its constituents have not fallen during the period.]
(ix) Except as otherwise provided for in this rule, all other provisions of these rules shall, mutatis mutandis, apply to procurement by rate contracts.
[(x) For procurements using rate Contract, if it is estimated that the value of procurement shall exceed beyond the e- procurement threshold in a Financial Year, then the Rate Contract has to be done mandatorily through the e-procurement mode. For Rate Contracts done through offline mode, the procuring entity should ensure that the e-
Page 25 of 60procurement threshold is not crossed during the entirety of the contract period and extension (if any).] (2) Government E-Marketplace (GeM) :-
(i) Procuring entities may, as appropriate in the public need and interest, utilise the Government E-
Marketplace (GeM) facility for purchase of their essential common use needs determined as available therein, subject to the provisions of the Act, the guidelines that may be notified in this regard by the State Government, and, without exception, the condition that the rates for the items offered by suppliers the GeM or the total cost involved thereof are not higher than the prevailing wholesale market prices in the State or the discounted rates of authorised dealers in the State or applicable.
(ii) The procuring entities shall fulfil the requirements of the GeM portal pertaining in publication of their annual requirements for the common use goods and services on GeM within thirty days of approval of the annual budget. The demand for such goods and services shall not be divided into small quantities to make piecemeal purchases for avoiding procurement through L-1 buying or bidding or reverse auction of the GeM.
(iii) All such procurements through GeM shall be subject to the prior sanction of the concerned compounding authority with reference to the relevant Delegation of Financial Power Rules in respect of the subject-matter and value of the procurement.
(iv) The State Government in Finance Department shall notify the detailed guidelines for such on-line procurement through GeM, together wit the mode and procedure for making payments to the registered suppliers thereof, and may be also prescribe financial ceiling or any other conditions for the purpose."
34. Reading the aforesaid Rules, it appears that the procuring entity may choose different methods of procuring specified in subsection 1 of Section 28 of the Page 26 of 60 Procurement Act if they are more advantageous and appropriate after recording the specific reasons and circumstances in writing for so choosing an exception to the preferred methods, i.e. the open competitive bidding method in terms of subsection 4 of Section 29 of the said Act, and that such specific reasons and circumstances shall be recorded in the case file and clearly noted in the procurement register, indicating the name and designation of the procuring entity making the decision. Thus, it is clear that it is the procuring entity that has been given the discretion under the statute to decide the procuring method to be adopted in respect of a particular procurement, which preferably shall be done by open competitive bidding; however, the procuring entity may differ from the said preferred method and instead choose any other method as mentioned in subsection 1 of Section 28 of the said Act. In such an event, it is imperative under the provision of the rule that, firstly, the procuring entity is satisfied that such adoption of a different method of procurement is more advantageous and appropriate, and secondly, such reasons and circumstances for choosing an exception to the preferred method of open competitive bidding are specifically recorded in writing. It is further clear that such reasons and circumstances have to be recorded clearly in the case file and the procurement register with the name and designation of the procuring entity making the decision. It further appears that the procuring entities, in the larger interest of the public may utilize the GeM for the purchase of their essential common-
Page 27 of 60use needs determined as available therein; however, in strict compliance with the provision of the Act and the Rules made thereof, and the guidelines that may be notified in this regard by the state government.
35. What transpires thus from the above is that under the Procurement Act and Rules, the procuring entity in the larger public interest has the power to procure essential common use needs through the GeM. However, while taking the decision of availing the facility of the GeM for the purchase of such essential services and commodities, the procuring entity is bound by the provisions of the Procurement Act and Rules made thereof, and the guidelines that may be notified in this regard, and all such procurement through GeM shall be subject to the prior sanction of the concerned compounding authority, and also the state government in the Finance Department is required to notify.
36. Turning back to the facts of the instant case, it appears from the records pertaining to the subject tender made available to the court by the learned Additional Advocate General that the tender committee, in their minutes of the tender financial bid opening meeting held on 12.02.2024, were of the opinion that since there were only two bidders participating in the process, in order to have better participation and involvement of more numbers of bidders to ensure the quality, fresh tender be resorted. Accordingly, the committee members recommended the Page 28 of 60 respondent No.4 to float a fresh tender through the GeM portal. The short question is thus whether the procurement entity, i.e., respondent No.4, who is the competent authority under the provision of the Procurement Act has taken a decision to choose the GeM method for the subject procurement, by cancelling the third re-tender done by the preferred method of open competitive bidding, in accordance with the provisions of the Procurement Act and Rules made thereof as discussed above or not, and in the event such a decision has been taken in accordance with the Act and Rules, whether the decision making process is free from the vice of arbitrariness.
37. The principles of judicial review in respect of contractual methods are well settled, and the same are applicable only in order to prevent arbitrariness or favoritism. Undoubtedly, the government being the guardian of the finances of the state, it is expected from the government to protect the financial interests of the state. Hence, the right to refuse the lowest or any other tender is always available to the government; however, the same cannot be done contrary to law and/or in an arbitrary manner. The public authorities are governed by the rule of law, and therefore, such authorities are constitutionally obligated to maintain complete fairness and transparency during the entire process of tender and in taking decisions thereof. Thus, it is not the merit of the decision that a writ court is concerned with but the decision making process. In short, the power of judicial review is not an appeal from Page 29 of 60 the decision. The writ court, while exercising judicial review in reviewing the decision making process, is concerned as whether a decision making authority exceeded its power, committed an error of law, committed a breach of rules of natural justice, reached a decision that no reasonable tribunal would have reached, or, abused its powers. In other words, the writ court is not determining whether a particular policy or particular decision adopted by the government is fair but is only concerned with whether the manner in which such decisions have been taken. The Apex Court in the case of M/s Star Enterprises and Ors. Vs. City and Industrial Development Corporation of Maharashtra Ltd. and Ors., reported in (1990) 3 SCC 280 emphatically laid down the necessity of judicial review of the administrative actions and decisions in relation to the commercial field as under:-
"10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process.Page 30 of 60
The submission of Mr Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communica-ted to the concerned parties unless there be any specific justification not to do so."
38. The grounds upon which an administrative action is subject to control by judicial review have been subsequently laid down by the Apex Court in the decision of the Apex Court in the case of Tata Cellular Vs. Union of India, reported in 1994 6 SCC 651 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, Wednessbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority property directing itself on the relevant law and acting reasonably could have reached it.
(iii) Procedural impropriety."
39. Relevant paragraphs of the said judgment of the Apex Court are reproduced hereunder for ready reference:-
"77. The duty of the court is to confine itself to the question of legality. Its concern should be:Page 31 of 60
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 fulfilment 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, Wednessbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority property directing itself on the relevant law and acting reasonably could have reached it.
(iii) Procedural impropriety.
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 28, 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 Page 32 of 60 should, "consider whether something has gone wrong of a nature and degree which requires its intervention.
78....
79....
....
93...
94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
40. Reading the aforesaid judgment, it is clear that the authorities have to be very cautious while exercising Page 33 of 60 their discretion in the said administrative actions and decisions.
41. In the case of Union of India and Ors. Vs Dinesh Engineering Corporation and Anr., reported in (2001) 8 SCC 491, the Apex Court has explained the manner in which the public authorities are obligated to use their above-mentioned discretionary power as under:-
"16. But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law, especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year 1992, and during all this while, we are told the Railways are making purchases without any tender on a proprietary basis only from EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non-application of mind, hence, it has to be quashed as has been done by the High Court."Page 34 of 60
42. Viewed thus, it is clear that the state authorities have a discretionary power to award government contracts to the successful bidder/tender if he/they have substantially complied with the essential conditions of the tender document issued by such authority and/or cancel the tender and if required, go for a fresh tender. True that, the said power is not unfettered; however, the same must be exercised by the state authorities within the four corners of Article 14 of the Constitution. In other words, the judicial power of review is exercised to rein in any unbridled executive function. Meaning thereby, the "tender jurisdiction" is vested in this court under Article 226 of the Constitution so as to ensure greater accountability, credibility, and transparency on the part of such authorities. However, the same is limited; that is to say, only if the said administrative action and/or decision of the state authority under consideration is arbitrary, biased, irrational, mala fide, or unreasonable. Procedural irregularities or errors in assessment, which may be trumped by the consideration of public interest, are no grounds for such interference. Therefore, this court ought not to embark upon making a technical analysis of the tender document, as the same falls within the exclusive domain of the author thereof. The test is thus to find the right balance between the administrative discretion to decide contractual matters vis-à-vis arbitrariness and unfairness, which are essentially not justiciable, and the Page 35 of 60 need to remedy any such arbitrariness and unfairness. That being so, the duty of the court is to confine itself to the question of the legality of the tender process on the touchstone of Article 14 of the Constitution of India. In short, arbitrariness and unfairness are set right by the writ court by exercising judicial review.
43. Keeping the aforesaid principles in mind, I shall now judicially review the decision of the respondent No.4 in choosing the GeM method over the open competitive method by cancelling the third re-tender.
44. Apt at the outset to refer to the affidavit-in- opposition filed on behalf of the respondent No.4 on 13.08.2024 to ascertain the manner in which the respondent No.4 has taken the decision to cancel the subject third re-tender and initiate a fresh tender. The relevant paragraph of the affidavit in opposition reads as hereunder:-
"4. That with regard to the statements made in paragraph 2 of the writ petition, the deponent begs to deny the averments made by the writ petitioner and further begs to submit that there is no arbitrary, illegal nor malafide, unreasonable, unconstitutional and high handed action on part of the respondent authorities.
The deponent further begs to submit that only two bidders participated after the third bidding. In the first tender bid, three bidders participated. However, in the second time, four bidders participated and in the third time, two bidders participated. Further, the Government of Assam vide its Office Memorandum dated January 2024 No. ECF No. 327632 made it mandatory for GeM for all procuring entities for procurement of all Goods and Services that are available in GeM.Page 36 of 60
9. That with regard to the statements made in paragraph 14 of the writ petition, the deponent begs to deny the averments made by the writ petitioner and further begs to submit that no illegal and arbitrary manner has been acted upon, as per Government Notification bearing No. ECG No. 327632 dated January 2024, GeM is mandatory. As such, a fresh tender was invited through Government e-Marketplace (GeM)
10. That with regard to the statements made in paragraph 15 of the writ petition, the deponent begs to deny the averments made by the writ petitioner and further begs to submit that no illegal and arbitrary steps have been initiated through GeM inviting fresh tender.
11. That with regard to the statements made in paragraph 16 of the writ petition, the deponent has no comments so far as the same are matters of record. However, anything beyond the records are denied and disputed by the answering respondent.
Further, the deponent begs to submit that in the first bid, only one party qualified which was not acceptable. In the second instance, it was rejected as no bidders qualified and in the third instance, only two bidders qualified, but GeM is mandatory and participation of more bidders is required.
45. Reading the aforesaid paragraphs, it is clear that the stand of the respondent authorities is that since GeM is mandatory in terms of the Office Memorandum dated 08.01.2024 and participation of more bidders is required, a fresh tender for the subject work was issued. It further appears that, except for the aforesaid bold defence, nothing further is discernible from the said affidavit-in- opposition filed by the respondent No.4. That apart, the respondent No.4 is also silent as regards the manner in which the impugned decision has been taken. Apropos Page 37 of 60 thus, to refer to the said Office Memorandum dated 08.01.2024, which reads as under:-
"OFFICE MEMORANDUM For Procurement of items from GeM and Assam Tenders Portal ECF/No.327632 Dated Dispur January 2024 In supersession of all previous notification related to e-Procurement (IT.69/2011/363 dated 15th October 2014, FEB(eGU).03/2015/3 dated 17th March 2015, FEB(eGU).03/2015/61 dated 5th August 2015, FEB (eGU) 03/2015/62 dated 23rd November 2016, FEB (eGU) 03/2015/109 dated 13th July 2018, FEB,366/2016/pt/XXV/250 dated 16th December 2021, and eCFNo.311119 dated 9th May 2023) and GeM notification (No.FEB.224/2021/5 dated 28 January 2022), th the Finance Department hereby directs all the procuring entity specified in Sub-Section (2) of Section 3 of Assam Public Procurement Act, 2017 to adhere to the following:
A. For procurement of Goods & Services -
1. Government e-Marketplace (GeM) is mandatory for all procuring entities for procurement of all Goods & Services that are available in GeM (as per Rule 24(I)(2)(iv) of Assam Public Procurement Rules, 2020).
2. In the event that specific goods and services are not available in GeM, the procuring entity shall mandatorily procure the same on Assam Tenders Portal (https://assamtenders.gov.in) for value above INR 20 lakh.
3. Procurement of goods and services valued less than INR 20 lakh may also be procured through Assam Tenders Portal (https://assamtenders.gov.in) at the Page 38 of 60 discretion of the procuring entity (if and only if the goods and services are not available in GeM).
However, the following items shall remain exempted from the purview of this amendment.
I. All the "Emergency Procurement" and "Urgent Works" as defined in the Assam Public Procurement Act, 2017 and Assam Public Procurement Rules, 2020 II. The procurements in the ten statutory Autonomous Council viz Moran Autonomous Council, Kamatapur Autonomous Council, Bodo Kachari Welfare Autonomous Council, Matak Autonomous Council, Rabha Hasong Autonomous Council, Mising Autonomous Council, Tiwa Autonomous Council, Deori Autonomous Council, Thengal kachari Autonomous Council and Sonowal Kachari Autonomous Council.
III. Procurement done through spot purchase and Request for Quotation (RFQ) IV. Any items to be notified by the departments with due concurrence of the Finance Department.
B. For procurement of works:
1. Works valued above INR 20 lakh shall be procured through Assam Tenders Procurement Portal (https://assamtenders.gov.in).
2. Works valued less than INR 20 lakh may also be procured through Assam Tenders Portal (https://assamtenders.gov.in) at the discretion of the procuring entity.
3. Works valued above INR 50 Lakhs shall be mandatorily procured through Assam Tenders Portal (https://assamtenders.gov.in) for the following cases mentioned below:Page 39 of 60
I. All the 'Emergency Procurement' and 'Urgent Works' as defined in the Assam Public Procurement Act, 2017 and Assam Public Procurement Rules, 2020.
II. The procurements in the ten statutory Autonomous Council viz Moran Autonomous Council, Kamatapur Autonomous Council, Bodo Kachari Welfare Autonomous Council, Matak Autonomous Council, Rabha Hasong Autonomous Council, Mising Autonomous Council, Tiwa Autonomous Council, Deori Autonomous Council, Thengal kachari Autonomous Council and Sonowal Kachari Autonomous Council C. Nodal Officers All procuring entitles as defined under sub-section (2) of Section 3 of Assam Public Procurement Act, 2017 will nominate one senior officer as Nodal Officer for 'GeM and e-Procurement'.
The detalls of such officers, along with their contact detalls will be forwarded to the Chairperson, State Procurement Facilitation Cell (SPFC).
In case there is an Assam Finance Service (AFS) officer posted in that particular procuring entity, then such officers will be treated as the Nodal Officer for 'GeM and e-Procurement' by default. In cases where there are no AFS officers posted, the procuring entity may prefer to have the senior most officer handling accounts as the Nodal Officer.
This shall come into force with immediate effect.
(Jayant Narlikar, IAS) Commissioner & Secretary to the Govt. of Assam Finance Department"
Page 40 of 6046. Reading the aforesaid office memorandum, it appears that the Finance Department has directed all the procuring entities to procure goods and services available in GeM (as per Rule 24(I)(2)(iv) of the Procurement Rules) through GeM. In order to examine the decision making process in question, this court, by order dated 27.05.2025, directed Mr. Gogoi, learned Additional Advocate General for the state respondent, to place the relevant records relating to the decision of the respondent No.4 in connection with the subject third re-tender. Accordingly, the records of the tendering committee in relation to the first tender, second re-tender, and third re-tender for the subject work were placed before this court on 30.05.2025. Upon perusing the records, especially the third re-tender, it appears that the tender committee has opened both the technical and the financial bids of the bidders, and after opening the financial bids, though the petitioner's bid was the lowest, however, recommended the respondent No.4 to float a fresh tender through the GeM method.
47. Apt to refer to the minutes of the tender bid opening meeting held on 12.02.2024 in respect of the subject third re-tender by the tendering committee, which reads as hereunder:-
"MINUTES OF THE TENDER BID OPENING MEETING HELD ON 12.02.2024 AT 1.00 PM IN THE CONFERENCE HALL OF ASSAM MEDICAL COLLEGE HOSPITA DIBRUGARH FOR PROVIDING ANNUAL JOB CONTRACT OF DIETARY SERVICES Page 41 of 60 TO THE PATIENT ADMITTED IN ASSAM MEDICAL COLLEGE HOSPITAL, DIBRUGRH PUBLISHED VIDE RE-TENDER(e-Tender) NO. MCH/2024/948 DTD. 09.01.2024.
The meeting was presided by the Chairperson of the committee Prof, Tapan Gogoi, Prof & Head, Deptt. Of Ophthalmology, Assam Medical College & Hospital, Dibrugarh, in presence of the following members.
1. Dr. Tapan Gogoi ... Chairperson Prof. & Head of Ophthalmology, AMCH, Dibrugarh.
2. Dr. Dhruba Jyoti Bhuyan .... Member Assoc. Prof. & HOD I/CDeptt. Of Phychiatric AMCH, Dibrugarh.
3. Dr. Ramesh Sonowal .... Member Prof. of & G, AMCH, Dibrugarh
4. Sri Rubul Boruah .... Member Finance & Accounts Officer i/c DC,s Office, Dibrugarh
5. Mr. Bhaben Kuman .... Member Sub-Inspector, FCS & CA, Dibrugarh
6. Dr. S.K Bhagawati .... Member Deputy Superintendent, AMCH, Dibrugarh
7. Dr. Hitendra Sonowal, .... Member Deputy Superintendent, AMCH, Dibrugarh
8. Dr. P.K. Dutta ... Member Assoc. Prof. of Medicine, AMCH, Dibrugarh Page 42 of 60
9. Dr. R. Das .... Member Asstt. Prof. of Surgery, AMCH, Dibrugarh
10. Mr. Raktim Bhattacharjee
11.Mr. Ai Cheng Gohain .... Member F.A, AMCH, Dibrugarh
12. Mrs. Z Hussain .... Member Dietitian, AMCH, Dibrugarh The following Bidders/Authorized representatives were present in the tender bid opening meeting.
Sl Name of firm Name of Contact No.
No. bidder/authorized
representative
who present in
the tender bid
opening meeting
1 Axis Contractor Girish Baruah 9678723497
& Engineer
Pvt. Ltd.
2 M/S Ranjit Ranjit Baruah 9435034164
Baruah
Natun tekela
gaon P.O.
Mohhanaghat
Dist-Dibrugarh
The committee members opened the tender both online and offline mode and found 2 (two) Nos. of bidders were participating in the tender. The committee scrutinized technical bid documents of the above bidders. The details of which shown below.Page 43 of 60
Sl Name of firms
No Axis M/S Ranjit
Contractor & Baruah
Engineer Natun tekela
Pvt. Gaon P.O
Ltd. Mohanaghat
Dist-
Dibrugarh
1 Court Fee Stamp submitted
Rs.8.25(Rupees Eight
Twenty Five Paise) only
(for local bidders) or IPO of
Rs.10/-(Rupees
Ten) only (in case of
bidders from outside of
the State of Assam)
2 Tender Fees: Rs.6,000/- submitted submitted
(Rupees six Thousand only)
(Through online
mode only) online
acknowledge receipt
3 EMD: Rs.10,00,000/- submitted submitted
(Rupees Ten Lakhs Only)
(Through online
mode only) online
acknowledge receipt
4 Copy of constitution or legal submitted submitted
status of the bidder
manufacturer/sole
proprietorship/firm/agency
etc.
5 "The turnover for providing submitted submitted
dietary service in
Page 44 of 60
Hospital/Similar Health
Institution of the firm should
not be less than
Rs.5.00 Crore in the last
three financial year
i.e.2020-2021, 2021-2022,
2022-2023. Copies of profit
& loss account and balance
sheets duty
authenticated by a Govt.
Registered Chartered
Accountant for the last three
financial years i.e.
2020-2021, 2021-2022,
2022-2023 should be
enclosed."
6 Experience of similar nature submitted submitted
of work of 03 year or more.
Similar nature of work
means supplying diet
services in a
hospital/similar health
institution/PSU on daily
basis with a minimum
occupancy of 500 persons.
Necessary supporting
documents like
work orders, Satisfactory
work completion certificate,
etc. for last
three years to this effect
must be submitted along
with the offer
7 Copy of the income Tax submitted submitted
Page 45 of 60
Return Filed
Acknowledgements for last
three years i.e.2020-2021,
2021-2022, 2022-2023.
8 Copy of PAN Card/Service submitted submitted
Tax Registration
9 Copy of the Sales tax/GST submitted submitted
Registration certificate
10 "Brochures, original submitted submitted
Technical catalogue with
detailed specification and
picture with date & time
alongwith Venue of the
Services offered, if relevant.
11 Banker of Company/Firm/ submitted submitted
agency with full address
(Attach certified copy of
statement of A/c for the last
one year) Telephone
Number of Banker
12 Copy of valid ESIC & EPF submitted submitted
registration certificate
13 Copy of the valid Labour submitted submitted
License Certificate
14 List of Labour with strength submitted submitted
on the date of
submission of the tender
(i.e Name of Labours)
15 Food License under the food submitted submitted
safety and Standard
Regulation 2011 (Attach
Attested copy)
16 Acceptance of terms & submitted submitted
conditions attached (Yes/
Page 46 of 60
No). Please sign each page
of terms and conditions as
token of the
acceptance and submit as
part of tender document.
17 A. Details of clients along A. Submitted A. Submitted
with address, telephone
and Fax numbers,
Amount of contract,
Duration of contract
(Attach a separate
sheet)
B. Have you previously B. Submitted B. Submitted
supplied these items
to any government/
private organization?
If yes, attach the
relevant proof.
C. Details of clients where C. Submitted C. Submitted
similar services are
presently provided by
the agency separated
for govt. and private
clients.
18 A. The concerned firm/ Submitted Submitted
company whose
product has been
declared as of spurious
or adulterated quality
and any criminal cases
is filled and is pending
in any court shall not
be eligible to
participate in the
Page 47 of 60
bidding process.
Convicted firms/
company shall also not
be eligible to
participate in the bid
B. Enclose an affidavit
duly certified by Submitted Submitted
(enclosed/Not
enclosed) the notary
at the location of the
Agencies/Head
quarters that the
bidder has never been
black listed or punished
by any court for any
criminal offence/breach
of contract.
19 Duly filled format of submitted submitted
Technical Bid as per
Annexure-I (Yes/No)
20 Bidders who come from submitted submitted
outside Assam must have
a branch office in Assam
at least period of one year.
After scrutiny all the bidders as stated above were found to be technically qualified. As the tender was called for 3rd time, the committee members have decided to opened the financial bids on 20.02.2024 at 2.00 p.m.
i) Sd/- ii) Sd/- iii) Sd/- iv) Sd/-
v) Sd/- vi) Sd/- vii) Sd/- viii) Sd/-Page 48 of 60
ix) Sd/- x) Sd/- xi) Sd/- xii) Sd/-"
48. Reading of the aforesaid minutes of the tendering committee, it appears that the committee scrutinized the technical bid documents of the two bidders, i.e., the writ petitioner and the respondent No.7, and upon scrutinizing, both were found to be technically qualified. It further appears that the tendering committee, upon considering the fact that the tender was called for the third time, decided to open the financial bid of the two qualified bidders on 20.02.2024 at 2 p.m.
49. Curiously, it appears that after the financial bid was opened and the petitioner's bid was found to be the lowest, the technical committee, instead of finalizing the same, recommended floating a fresh tender for the subject work through the mandatory GeM method for better participation.
50. Apt to refer to the tender financial bid opening meeting held on 20.02.2024, which reads as hereunder:-
"MINUTES OF THE TENDER FINANCIAL BID OPENING MEETING HELD ON 20.02.2024 AT 2.00 PM IN THE CONFERENCE HALL OF ASSAM MEDICAL COLLEGE HOSPITA DIBRUGARH FOR PROVIDING ANNUAL JOB CONTRACT OF DIETARY SERVICES TO THE PATIENT ADMITTED IN ASSAM MEDICAL COLLEGE HOSPITAL, DIBRUGRH PUBLISHED VIDE RE-TENDER (e- Tender) NO. MCH/2024/948 DTD. 09.01.2024.Page 49 of 60
The meeting was presided by the Chairperson of the committee Prof. Tapan Gogoi, Prof & Head, Deptt. Of Ophthalmology, Assam Medical College & Hospital, Dibrugarh, in presence of the following members.
1. Dr Tapan Gogoi ... Chairperson Prof. & Head of Ophthalmology, AMCH, Dibrugarh.
2. Dr Dhruba Jyoti Bhuyan .. Member Secretary Assoc. Prof. & Deptt. of Phychiatric AMCH, Dibrugarh.
3. Dr. Ramesh Sonowal .... Member Prof. of & G, AMCH, Dibrugarh
4. Sri Rubul Boruah .... Member Finance & Accounts Officer i/c DC,s Office, Dibrugarh
5. Mr. Bhaben Kumar .... Member Sub-Inspector, FCS & CA, Dibrugarh
6. Dr. S.K Bhagawati .... Member Deputy Superintendent, AMCH, Dibrugarh
7. Dr. Hitendra Sonowal, .... Member Deputy Superintendent, AMCH, Dibrugarh
8. Dr. P.K. Dutta ... Member Assoc. Prof. of Medicine, AMCH, Dibrugarh
9. Dr. R. Das .... Member Asstt. Prof. of Surgery, AMCH, Dibrugarh
10.Mr. Ai Cheng Gohain .... Member F.A, AMCH, Dibrugarh Page 50 of 60
11. Mrs. Z Hussain .... Member Dietitian, AMCH, Dibrugarh Since, there were only two bidders participating in the process, to have a better participation and involvement of more numbers of bidders to ensure the quality the committee members would like to recommend the Principal-cum-Chief Superintendent and Superintendent, AMCH, Dibrugarh to float a fresh tender through GeM Protal.
i) Sd/- ii) Sd/- iii) Sd/- iv) Sd/-
v) Sd/- vi) Sd/- vii) Sd/- viii) Sd/-
ix) Sd/- x) Sd/- xi) Sd/- "
51. Reading the aforesaid minutes of the financial bid opening, it is apparent that the financial bids of the two bidders were opened. What is surprising to note is that the tender committee at the time of opening the technical bid and upon scrutinizing the same was, though fully aware that there were two qualified technical bids, since the subject work was re-tendered for the third time, they decided to open the financial bid, and after opening the financial bid, instead of finalizing the same, they took a complete somersault and recommended the respondent No.4 to float a fresh tender through the GeM method for better participation.
52. It appears from the aforesaid records of the tendering committee in respect of the third re-tender that Page 51 of 60 by letter dated 02.03.2024, the tendering committee submitted the minutes of the tender committee (third re- tender) for the subject work to the respondent No.4. In the body of the aforesaid letter, it appears that at the top of the right hand corner, there is a note by hand, "as per committee suggestion, invite tender through GeM portal", purportedly signed by the respondent No.4 by inserting the date 02.03.2024. It is pertinent that neither the name nor the designation of the person signing the said note is recorded. That apart, no official seal is also appended against the signature in question. Further, the date inserted by hand appears to have also been overwritten. It is worthwhile to mention that except for the records of the tendering committee pertaining to the subject tender, second re-tender, and third re-tender, no other records regarding the decision of the respondent No.4 relating to the third re-tender have been placed despite the opportunity being given.
53. During the course of the hearing, Mr. B. Gogoi, learned Additional Advocate General, placed a letter dated 25.04.2025, issued by respondent No.4 to show that respondent No.4 had taken the decision of issuing a fresh tender for the subject work through the GeM portal, which was later placed by way of an additional affidavit filed on 03.06.2025, with a copy served to the other side. The said letter reads as under:-Page 52 of 60
"OFFICE OF THE SUPERINTENDENT::
ASSAM MEDICAL COLLEGE HOSPITAL
DIBRUGARH-786 002
Dated Dibrugarh the 25/4/2025
No MCH/2025/ 11347
To
Mr. Buddhadip Gogol
Standing Counsel, Health & Family Welfare
Departmant
Subject: W.P (C) No. 1597/2024(Shri Ranjit Baruah vs State of Assam & 5 ors) Ref. 1. Our letter bearing No.MCH/2024/8316 dtd. 04/04/2024
2. Your letter No.HD/DS/25 did. 21/04/2024 Sir We have informed you that the office of the undersigned has received your above referred letter, in compliance of the same we are handing over the process of the original tender documents available to us through the personnel messenger Sri Pitamber Reddy, Grade-IV (Peon), AMCH, Dibrugarh.
We would like further state that as per the minutes of the meeting held on 20/02/2024 at 2.00 PM in the Conference Hall of AMCH, Dibrugarh for providing annual job contract of dietary service to patients admitted in AMCH, Dibrugarh, it was clearly decided by the tender committee as per Govt. of Assam, Finance Department office memorandum No. ECF/No.327632 dtd. 08/01/2024 whereon it has been made mandatory by the Govt. of Assam under GeM Portal for all procuring entities for procurement of all goods and services that are available in GeM. According to the minutes of the tender financial bid although was opened through online mode Page 53 of 60 not signed and endorsed by any members of the tender committee. But in view of the aforesaid Govt. Notification the committee members recommended the Principal-cum- Chief Superintendent and Superintendent, Assam Medical College & Hospital, Dibrugarh to float a fresh tender through GeM portal. In the Assam Tender portal it is mentioned that financial covered to be opened (screenshot copy of the Assam Tender is enclosed herewith). As the matter was referred for fresh tender under GeM portal so the financial bid of the two selected bidders were not uploaded/submitted in Assam Tender Portal.
Be it mentioned that in the tender notice inviting e-Tender vide our office No.MCH/2024/948 dtd. 09/01/2024 it has been clearly mentioned that the Principal-cum-Chief Superintendent/Superintendent, AMCH, Dibrugarh reserves the right to reject all or any tender without assigning any reason.
This is for your kind information, record and doing needful Yours faithfully Principal-cum-Chief Superintendent Superintendent Assam Medical College Assam Medical College & Hospital, Dibrugarh"
Hospital, Dibrugarh
54. Reading the aforesaid letter, it is clear that according to the minutes of the tender financial bid, although the financial bid was opened through online mode, it was not signed and endorsed by any members of the tender committee. It is further clear that in view of the Office Memorandum dated 08.01.2024, since the committee members recommended the respondent No.4 to float a fresh tender in relation to the subject work through the GeM portal, the matter was referred for a fresh tender Page 54 of 60 under the GeM portal, and the financial bids of the two selected bidders were uploaded/submitted in the Assam Tender Portal. In fact, there is no document whatsoever available on record relating to the decision of the respondent No.4 except the note purportedly to have been signed by the respondent No.4 in the body of the letter dated 02.03.2024. That apart, the aforesaid letter dated 25.04.2025 written by the respondent No.4 to the Additional Advocate General, State, is at best an instruction to him and cannot be taken as the decision of the respondent No.4 in relation to the adoption of the GeM method in the subject tender and cancellation of the third re-tender.
55. Thus, the admitted position that unfolds from the above is that the third re-tender was issued on 09.01.2024, and the office memorandum relied on the tendering committee, which mandates the GeM method mandatory was issued on 08.01.2024, i.e., one day before the date of issuance of the third re-tender. As noted above, it is mandatory under the provision of the Procurement Act for a notification to be published in the official gazette before coming into effect. It is pertinent that during the course of the hearing on 30.05.2025, upon query being put to the learned Additional Advocate General as regards the publication of the said Office Memorandum dated 08.01.2024 in the official gazette, accommodation was sought for obtaining instruction thereof. Thereafter, by filing an additional affidavit on 03.06.2025, he clarified that Page 55 of 60 the said office memorandum is not published in the official gazette. Paragraph 4 of the said additional affidavit reads as under:-
"4. That as regards the Office Memorandum dated 08.01.2024 issued by the Commissioner and Secretary to the Government of Assam, Finance Department, the deponent begs to submit that on enquiry, in the Finance Department, it has been informed that in pursuance of Rule 24(I)(2)(iv) of the Assam Public Procurement Rules, 2020 relating to Government e-Marketplace, the Finance Establishment (B) Department issued a Gazette Notification vide No. FEB.224/2021/5 dated 28.01.2022 whereby it was directed that Government e-Marketplace (GeM) is mandatory for all procurement entities for procurement of all goods and services that are available in GeM except in cases specified therein. Thus, procurement of goods and services available in GeM was already made mandatory for the procurement entities by the above mentioned Gazette Notification dated 28.01.2022. Further, it has been informed that the Office Memorandum dated 08.01.2024 is an Administrative Order and as such, the same is not required to be Gazette notified."
56. Reading the aforesaid paragraph, it is clear that the stand of the respondent authority is that the Finance Establishment (B) Department, as per Rule 24(I)(2)(iv) of the rules, issued a gazette notification dated 28.01.2022, whereby it was directed that the Government e-Market (GeM) is mandatory for all procurement entities for procurement of all goods and services that are available in Page 56 of 60 GeM. It is thus contended on behalf of the state authorities that the mandatory requirement for procurement of subject work by the GeM method was already available vide the aforesaid gazette notification dated 28.01.2021. That apart, it is contended that the Office Memorandum dated 08.01.2024, being an administrative order, is not required to be gazette notified.
57. The aforesaid stand of the state respondent appears to be totally fallacious inasmuch as the Office Memorandum dated 08.01.2024 specifically mentions that the GeM notification dated 28.01.2022 stands superseded in view of the issuance of the Office Memorandum dated 08.01.2024. That apart, the tendering committee has referred to the Office Memorandum dated 08.01.2024 and not the GeM notification dated 28.01.2022, which is now sought to be relied on by the respondent authority. Such resort to adopt contrary stand before this court clearly demonstrates the desperate attempt of the respondent authority to justify their actions, which, on the face of it, appear, to be arbitrary and unreasonable. Apropos that, under the provisions of the Procurement Act and Rules made thereunder as extracted hereinabove, it is clear that detailed guideline for online procurement through GeM has to be notified by the state government in the Finance Department. It is also mandatory for such notification to be published in the official gazette. Undoubtedly, notification in common parlance is an instance of formal notifying or informing in writing. Similarly, an office memorandum is Page 57 of 60 primarily internal communication document used within an organization to transmit official information, instruction or announcement. Therefore, I have no doubt that the Office Memorandum dated 08.01.2024 relied by the tendering committee to adopt GeM procuring method for the subject procurement by cancelling the third re-tender is nothing but a notification which unless is published in the official gazette, the same shall not come into effect.
58. As a necessary corollary from the above, the admitted position is that the respondent No.4, who is the competent authority under the provisions of the Procurement Act and Rules made thereof to choose any other method other than the most preferred methods of open competitive bid, has not taken the decision in the subject third re-tender as required under the law. That apart, the tendering committee though was fully aware as regards the number of participation at the time of finalizing the technical bid, decided to open the financial bid and after opening the financial bid, suddenly was of the view that for better participation fresh tender be issued. It is not understood as why the tendering committee could not have taken this decision for fresh tender before opening the financial bid, since they were fully aware of the number of participation. It is further evident that though the office memorandum mandating GeM procurement method has not come into effect, the tendering committee insisted following the same, which was issued just one day prior to the issuance of the third re-tender. Such action of the Page 58 of 60 tendering committee as well as respondent No.4 does not inspire the confidence of this court. Moreover, the respondent No.4 has not communicated the grounds for not finalizing the subject third re-tender process. The decision making process is bound to be fully transparent and/or fair. Any decision making process which is not transparent and/or fair, suffers from the vice of arbitrariness. That apart, it is absolutely clear that the provisions of the Procurement Act and Rules made thereof has been totally violated and abused by the respondent No.4 while taking the impugned decision of issuing the fresh tender in the subject process. As such, I have no hesitation to hold that the subject decision making process is wholly arbitrary, discriminatory and unreasonable.
59. Viewed thus, from any angle, the impugned decision of the respondent No.4 in issuing the subject fresh tender cannot stand in the eye of law. That being so, the same is to be set right.
60. Hence, the writ petition succeeds.
61. Accordingly, the decision making process of the respondents in not finalizing the subject third e-Tender dated 09.01.2024 as well as the decision inviting fresh tender for the subject work through the GeM are hereby set aside and quashed.
62. Resultantly, the respondent authorities, more particularly the respondent Nos. 2, 3, 4 and 5 are directed Page 59 of 60 to finalize the subject third e-Tender process pertaining to e-Tender bearing No. MCH/2024/948 dated 09.01.2024 for the subject e-Procurement for providing annual job contract of dietary services to the patient admitted in Assam Medical College Hospital, Dibrugarh, in accordance with law.
63. With the above observations and directions, the writ petition stands allowed and disposed of.
Send back the case records.
JUDGE Comparing Assistant Page 60 of 60