Calcutta High Court (Appellete Side)
Pg (Usha Ranjan Sarkar vs The State Of West Bengal on 28 January, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
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110 28.01.2014 W.P.752(W) of 2014
pg (Usha Ranjan Sarkar vs. The State of West Bengal
& Ors.)
With
W.P.2277(W) of 2014
(Classic Builders and Traders vs. The State of
West Bengal & Ors.)
Mr. Kishore Dutta
Mr. Indranil Roy
Mr. Sabyasachi Sen
..........for the petitioner in
W.P.752(W) of 2014
and the respondent no.4
in W.P.2277(W) of 2014 Mr. Amitava Ghosh Mr. Navojit Mukherjee ..........for the petitioner in W.P.2277(W) of 2014 and the respondent no.4 in W.P.752(W) of 2014 Mr. Ashok Kumar Banerjee, Ld. Government Pleader Mr. Susovan Sengupta ..........for the State in both the writ petitions
1. These two writ petitions have been heard together since they relate to the same tender process and are being disposed of by this common order.
2. Notice Inviting Tender No. IW/SE/M(EX)/NBFCC/ NIT-1(e)/2013-2014 was issued from the office of the Superintending Engineer & Member (Ex), North Bengal Flood Control Commission (hereafter the 'NBFCC') for, inter alia, "extension of segregating embankment of river 2 Teesta and Karala" in the district of Jalpaiguri (Phase-I).
3. Eight bidders responded to such notice. Upon consideration of their financial bids, Mackintosh Burn Limited (hereafter 'MBL') was found to be the sole qualified bidder. Its quoted rate was -15.11%. Since MBL was the sole qualified bidder, it was decided to proceed for a second call and hence Notice Inviting Tender No. IW/SE/M(EX)/NBFCC/NIT-3(e)/2013- 14 was issued. Neo Build Corporation (hereafter 'NBC'), the proprietorship firm of Usha Ranjan Sarkar (hereafter 'Usha') [the petitioner in W.P. 752 (W) of 2014], Classic Builders and Traders (hereafter 'Classic') [the petitioner in W.P. 2277 (W) of 2014] and two others responded to such notice. Upon examining their technical bids, NBC and Classic were found to have qualified for opening of the financial bids. Such decision was uploaded on December 18, 2013. The financial bids of MBL, NBC and Classic were opened on December 24, 2013 and the position that emerged is as follows:
Name of Bidder Quoted Percentage Rank
Classic -19.19% L-1
NBC -18.72% L-2
MBL -15.11% L-3
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4. The Tender Evaluation Committee in the
combined financial bid opening sheet recorded prima facie satisfaction that the papers uploaded by the above bidders were satisfactory and that financial bid evaluation result would be uploaded after acceptance of comparative statement by the competent authority.
5. The papers submitted by the bidders were thereafter uploaded. Usha found serious discrepancies in the papers furnished by Classic which, according to him, ought to have resulted in summary rejection of Classic's candidature.
6. Incorporating such discrepancies, Usha lodged separate objections, both dated December 27, 2013, before the Superintending Engineer & Member (Ex), NBFCC and the Chief Engineer, Teesta Barrage project.
7. Alleging that the objections were not attended to and further alleging that the official respondents, instead of canceling the candidature of Classic and awarding the work order in favour of NBC were contemplating cancellation of the tender process in respect of the said work to enable Classic to participate in the fresh tender process by curing the defects and/or removing the discrepancies, W.P.752(W) of 2014 was presented by Usha 4 before this Court on January 09, 2014 seeking inter alia order(s) directing the official respondents:
i) not to cancel the tender process initiated pursuant to the notices inviting tender referred to above;
ii) to rescind/withdraw decision, if any, to cancel the tender process initiated pursuant to the notices inviting tender referred to above;
iii) to forthwith cancel the candidature of Classic and;
iv) to declare NBC as the lowest bidder and to award the work order in its favour.
8. Usha's writ petition was considered by me on January 21, 2014. In course of hearing, Mr. Sengupta, learned advocate for the official respondents produced the decision taken by the Technical Evaluation Committee in a review meeting held on December 31, 2013. The decision revealed that the objections lodged by Usha vide representations dated December 27, 2013 were looked into and the following relevant observations were made:
" It is observed that in case of Classic Builders & Traders, the Form-1 & Form-IV, uploaded by the said bidder do not tally with the work for which the tender was invited.
As such the members unanimously decided that Classic Builders & Traders has failed to submit the 5 requisite Form No.1 & Form-IV and the tenders as submitted by the said bidders on-line has summarily been rejected.
The status of the bidders of Messes ABG Construction, New Built Corporation & Kar Construction Co. remained unchanged as decision made in the meeting of TEC held on 18.12.2013."
9. It was further submitted by Mr. Sengupta that the decision to cancel the tender process initiated by the notices inviting tender referred to above had in fact been taken pursuant to an opinion rendered by the learned Government Pleader, Jalpaiguri, since approved by the learned Legal Remembrancer, and fresh notice inviting tender has already been issued.
10. The decision to cancel the tender process in its entirety, prima facie, was viewed by me to have been taken unlawfully and, therefore, the process was stayed.
11. During the pendency of Usha's writ petition, Classic presented W.P.2277(W) of 2014 on January 21, 2014 itself and by order dated January 22, 2014, both the writ petitions were directed to be heard together on January 24, 2014.
12. In its writ petition, Classic has challenged the decision adopted in the review meeting of the Tender Evaluation Committee dated December 31, 2013 declaring 6 Classic as not qualified to participate in the tender process and for a consequential direction upon the official respondents to award the work order in its favour, treating it to be the lowest bidder.
13. The parties have since been heard at length. I have not considered it necessary to call upon the parties to exchange their affidavits since all the facts necessary for being looked into are on record of the respective writ petitions and the documents that have been placed by Mr. Ashoke Kumar Banerjee, learned Government Pleader have not been disputed by the learned advocates appearing for Usha and Classic.
14. Mr. Ghosh, learned advocate appearing for Classic contends that the Tender Evaluation Committee had no power of reviewing its earlier decision and Usha did not exercise the right of appeal that was provided by clause 8.4 of the tender notice. Relying on the decision of the Supreme Court reported in (1971) 3 SCC 844, it has been urged that the decision on review is a nullity. He also submits that NBC should have also been disqualified because in Form-I it had mentioned 'second call' although it was not the requirement; there was nothing on record to suggest that Usha is the proprietor of NBC; 7 and, completion certificate was not separately annexed by NBC.
15. Clause 8.4, to the extent relevant, reads as follows:
8.4 Provision for appeal and its disposal i Intending tenderer not satisfied with the decision of the Tender Evaluation Committee (TEC) may prefer an appeal to the concerned Chief Engineer & Chairman, N.B.F.C.C. of the Irrigation & Waterways Directorate in writing (through facsimile/e-mail or speed post) within two working days after the date of uploading of the summary list of the successful tenderers. Copy of such appeal should also be sent to the Tender Inviting Authority of the Irrigation & Waterways Directorate.
ii The Appellate Authority, i.e. the concerned Chief Engineer & Chairman, N.B.F.C.C. of the Irrigation & Waterways Directorate will dispose of such appeals by hearing the aggrieved tenderers as well as consulting the Tender Evaluation Committee within next three working days and the tenderer will be communicated accordingly."
16. Since Usha did not approach the appellate authority within the time mentioned in sub-clause (i) of clause 8.4, the objections that he had raised could not at all have been looked into by the Tender Evaluation Committee on review. The said objections could not also have been looked into by the learned Government Pleader, Jalpaiguri. Reliance placed by Mr. Ghosh on the decision of the Supreme Court reported in (1971) 3 SCC 8 844 appears to be apt. Usha, thus, cannot derive any advantage out of the decision taken in the review meeting as well as the opinion of the learned Government Pleader, Jalpaiguri to the effect that Classic was not qualified to participate in the tender process.
17. However, does it mean that the Court cannot lift the veil and examine as to whether Classic could have been regarded as qualified in view of the particulars mentioned by it in its bid? The answer, in my opinion, must be in the affirmative.
18. Mr. Dutta, learned advocate for Usha has pointed out discrepancies in the technical bid of Classic. It was required to provide particulars in respect of annual turnovers for the years 2010-11, 2011-12 and 2012-13, duly certified by its auditor. Instead of furnishing figures for the year 2010-11, the figures for 2013-14 were furnished, without certification by the auditor.
19. In terms of clause 7.2 of the tender terms and conditions, the technical file (statutory cover) ought to have contained, inter alia, the summary statement of overall annual turnover, incorporated in Form-2. The note stipulated that if any item in the statutory cover is missing, the tender would be liable to be summarily 9 rejected. Only on this ground, Classic's candidature ought to have been rejected at the inception. The members of the Tender Evaluation Committee erred in the exercise of their jurisdiction in not declaring Classic as dis-qualified on December 18, 2013. Since this fact has come to the notice of the Court, Classic cannot claim any benefit pursuant to the combined financial bid opening sheet appearing at page 234 of Usha's writ petition.
20. The next question that arises for decision is whether NBC could have been declared qualified to participate in the tender process. My attention has been drawn to clause 7.4.1 of the notice inviting tender dealing with completion certificate. The relevant two clauses are quoted hereinbelow:
"7.4.1 Completion Certificate i Completion Certificates for fully (100%) completed works during the current year and last five financial years will only be accepted. Certificates issued for partly completed works will not be considered.
ii Such Certificates are to be countersigned by the concerned Executive Engineers of the Irrigation & Waterways Department, if these are issued by some other Authorities."
21. According to Mr. Banerjee, the completion certificate furnished by NBC was required to be 10 countersigned by the concerned Executive Engineer of the Irrigation & Waterways Department, since the same had been issued by an authority not connected with such Department. Referring to the completion certificate given in Form-3 at pages 98-99 of Usha's writ petition, it was submitted that the Tender Evaluation Committee was remiss in not rejecting the bid of NBC.
22. Countering such argument, Mr. Dutta refers to Form-3 and submits that such form does not provide for countersigning by anyone and since NBC had substantially complied with the requirement of clause 7.4.1, it had qualified in all respects.
23. I am of the view that Form-3 cannot be read dehors the contents of clause 7.4.1. If the Court were to hold against the requirement of countersignature by an Executive Engineer, sub-clause (2) would lose its relevance and be rendered redundant. A document has to be read as a whole and no part of it should be read in a manner so as to render another part meaningless. If there be any ambiguity, Usha ought to have obtained a clarification. Although this glaring defect committed by Usha was not noticed by the Tender Evaluation Committee, I cannot allow such glaring error to escape 11 notice. NBC should have also been declared not qualified to participate in the process.
24. The decision of the official respondents to cancel the earlier process and to initiate fresh process, as noticed above, is based on the opinions of the learned Government Pleader, Jalpaiguri dated December 30, 2013 and the learned Legal Remembrancer dated January 18, 2014. The learned Legal Remembrancer did not give any independent reason and simply endorsed the view of the learned Government Pleader. In his note dated December 30, 2012, the learned Government Pleader proceeded to record as follows:
"It appears from the documents placed before the undersigned that in the first call of the instant tender only one agency viz, Mackintosh Burn Ltd had been qualified by the Tender Evaluation Committee. Subsequently second call was held and in the second call the number of participants was four out of which two number of participants viz, (i) Neo Build Corporation, Kolkata and (ii)Classic Builders and Traders, Silliguri had been technically qualified by the Tender Evaluation Committee on 18.12.2013. The undersigned has also carefully gone through the legal notice issued by Mr. Kanchan Singha (Advocate) on 27.12.2013 to the Superintending Engineer & Member (Ex), North Bengal Flood Control Commission, Club Road, Jalpaiguri.
The application for tender under Form 1 and the declaration against common interest in Form 4 submitted by Classic Builders & Traders have been discovered erroneous abinitio but surprisingly the Tender Evaluation Committee on 18.12.2013 had technically qualified the said agency which is an error 12 apparent on the face of the record.
Now, considering the all pros and cons and the law declared by the Apex Court of the country, the undersigned do hereby firmly opine that the tender process in connection with NIT No. IW/M/(Ex)/NBFCC/NIT-3 (e)/2013-14 invited by the Superintending Engineer & Member (Ex), North Bengal Flood Control Commission, Club Road, Jalpaiguri ought to be cancelled at once and accordingly, fresh process ought to be initiated to avoid any future legal complication."
25. In this regard, I cannot help but adverting to a particular aspect that I noticed after the arguments were over. Apart from the several errors committed by the Tender Evaluation Committee, one other serious error appears to have been committed. The fact that Classic was not qualified to have its financial bid opened and considered was detected after Usha's objections were looked into in the review meeting held on December 31, 2013. Surprisingly enough, the learned Government Pleader, Jalpaiguri opined on December 30, 2013 to the same effect, based on the same reasons for which the Technical Evaluation Committee in its review meeting declared Classic as not qualified. If indeed what the dates suggest is correct, the opinion of the learned Government Pleader, Jalpaiguri preceded the decision taken by the Technical Evaluation Committee on review. It is unheard 13 of that a decision regarding qualification which in ordinary circumstances would have to be taken by the experts comprising the Technical Evaluation Committee had been left to the wisdom of the learned Government Pleader, Jalpaiguri, a non-technical man. Be that as it may.
26. Although the learned Government Pleader referred to the pros and cons and the law declared by the Supreme Court while being inclined in favour of cancellation of the tender process and initiation of a fresh process, the particular reasons and the specific judgment that weighed in his mind are conspicuous by its absence. The conclusion, however, has been sought to be supported by Mr. Banerjee by referring to the amendments effected in rule 47 of the West Bengal Financial Rules, Volume-1.
27. Although Mr. Dutta has urged that the amendments have no application to execution of a work of the present nature for which the notices inviting tender were issued, and that the said amendments apply only to purchase of materials/ equipments, I am not minded to agree with him. Note 1 of rule 47(8) stipulates, inter alia, as follows:
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"In case of invitation of tender under two-bid system, if the number of tenderers/bidders qualified in the technical bid is less than three, tender should be invited afresh."
28. It has not been disputed before me that the two bid system was resorted to by the official respondents. Consequently, at least three qualified bidders were necessary to take the process to its logical conclusion. If the number of qualified bidders falls below three, the official respondents may proceed for a re-tender and no exception can be taken. The point requiring my consideration is what would be the stage when a re-tender could be ordered. If a glaring error in respect of a bidder striking at the root of its candidature (like Classic) goes unnoticed at the time of considering the technical bids and it is noticed only after the financial bids are opened, can the tender issuing authority not disqualify him at that stage? This answer also, in my opinion, cannot but be in the affirmative. In such event, the act of disqualifying would relate back to the date on which the technical bids were considered. If the number of qualified bidders after such exercise is less than three, a re-tender may be resorted to.
29. If Mr. Datta's contention that Classic had not 15 submitted the essential particulars and its candidature should have been rejected at the inception were to be accepted, there would be only two qualified bidders (NBC and MBL) left in the fray necessitating a re-tender. Nothing would turn in favour of Usha by reason of late detection of Classic's disqualification to participate in the tender process. A litigant ought not to be granted benefit of an erroneous act of a public authority, unless the principle of estoppel is attracted.
30. A writ court interferes if it is equitable to do so, is settled law. The apprehension of Usha that Classic was sought to be unduly favoured cannot be brushed aside as wholly misplaced. At the same time, it cannot also be lost sight of that NBC itself was the beneficiary of an erroneous decision making process. The decision to go for re-tender would allow both NBC and Classic to submit error-free bids for consideration. It is also likely to throw up opportunity for MBL and others, if qualified, to quote better rates and thereby reduce the cost factor. Circumstances demand that in a situation like the present one, the Court should adopt a 'hands-off' approach.
31. In the result, for reasons different from those 16 that persuaded the official respondents to decide in favour of a re-tender, I hold such decision to be unexceptionable, not warranting any interference in exercise of writ jurisdiction.
32. The writ petitions stand disposed of with a direction upon the official respondents to conclude the tender process in accordance with law. Since NBC has not submitted its offer in pursuance of the fresh tender notice on the ground that its writ petition was pending, I grant NBC liberty to submit all its documents by 12.00 noon of Thursday (30.01.2014).
33. There shall be no order as to costs.
34. At this stage, Mr. Dutta prays for stay of operation of the order. The prayer is opposed by Mr. Ghosh. Considering the submissions made by them, operation of this order is stayed till Monday next (03.02.2014).
35. Photocopy of this order, duly counter-signed by the Assistant Court Officer shall be retained with the records of W.P. No. 2277 (W) of 2014.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously. 17
(DIPANKAR DATTA, J.)