Gauhati High Court
M/S. G.B.Chaudhury Holdings Pvt. Ltd vs Food Corporation Of India And Anr on 17 January, 2019
Equivalent citations: AIR 2019 (NOC) 439 (GAU.), AIRONLINE 2019 GAU 485, (2019) 5 GAU LR 311
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/12
GAHC010245182017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7988/2017
1:M/S. G.B.CHAUDHURY HOLDINGS PVT. LTD.
A COMPANY REGD. UNDER THE COMPANIES ACT 1956 REP. BY SMT.
SUJATA RURUNG CHOUDHURY, DIRECTOR, CHOUDHURY TILLA,
OPPOSITE DISPUR, CAPITAL COMPLEX, G.S. ROAD, GUWAHATI-06.
VERSUS
1:FOOD CORPORATION OF INDIA and ANR.
REP. BY ITS CHAIRMAN CUM MANAGING DIRECTOR, BARAKHAMBA
ROAD, NEW DELHI-06.
2:GENERAL MANAGER REGION
FOOD CORPORATION OF INDIA
REGIONAL OFFICE
ASSAM REGION
PALTAN BAZAR
GUWAHATI-781008
Advocate for the Petitioner : MR.B CHAKRABORTY
Advocate for the Respondent : SC, F C I
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
JUDGMENT
Date : 17-01-2019 Heard Mr. B. Chakraborty, the learned counsel for the petitioner as well as Mr. P.K. Roy, the learned Standing Counsel for the respondents.
2) The re-tender of the work of transportation of food grains/ sugar/ allied materials Page No.# 2/12 from Railway Siding/ FSD Gossaigaon to FCI FSD Balajan via Weighbridge is the subject matter of challenge in the present writ petition filed under Article 226 of the Constitution of India.
3) The case projected by the petitioner in this writ petition is that the distance between Railway Siding/ FSD Gossaigaon to FCI FSD Balajan via Weighbridge is 58 km. In respect of the same transportation work, the FCI authorities had earlier issued a NIT on 03.12.2015. In the said tender process, the contract was awarded to M/s. Sagar Basumatary for a period of 2 years at the quoted rate of Rs.902/- per MT. However, after about 6 (six) months from the commencement of the contract work, on the ground that the route of 58 km was not pliable, the FCI authorities had paid the said contractor charges at the rate of Rs.1771.84as against the contract rate of Rs.902/- per MT per KM. for the remaining 14 months out of total contract period of 22 months. The respondents had thereafter issued another NIT for the same work bearing No. S&C/1993/Assam/2017 dated 30.10.2017 for a period of 2 years without mentioning the distance of the route. The petitioner along with 2 (two) others, including the previous contractor had participated in the bidding process. The bid of one M/s. Radhika Express Service, though lowest, was found not technically responsive and the valid bid of the petitioner stood at second lowest i.e. L-2 at Rs.1,025/- per MT., followed by the L-3 bid of M/s. Sagar Basumatary at Rs.1,045/- per MT.
4) However, by assigning administrative reasons, the said NIT process was cancelled on 12.12.2017 by the respondent No.2. Thereafter, by a forwarding letter dated 13.12.2017, the earnest money of the petitioner was refunded on the ground that the petitioner was unsuccessful/ could not participate in the tender. However, in the meanwhile, on 12.12.2017 itself, the respondents had issued a fresh NIT for same work bearing No. S&C/1882/AP/Assam/2017 dated 12.12.2017, bearing similar terms and conditions as contained in the previously scrapped NIT dated 30.10.2017, once again without mentioning the distance for the said work. While the petitioner had participated in the said tender process, but on 16.12.2017, the present writ petition was filed for (i) quashing and setting aside the order dated 12.12.2017, canceling the earlier tender process initiated vide NIT dated 30.10.2017, (ii) for quashing and setting aside the NIT dated 12.12.2017, and (iii) for a further direction to the respondents to award the said contract to the petitioner.
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5) The respondents had contested this writ petition by filing their affidavit-in- opposition, wherein by providing some calculations, the respondents had disclosed that in the re-tender process, M/s. Sagar Basumatary turned out to be the L-1 bidder by giving his bid of Rs.981/- per MT and accordingly, the respondents would be saving public money amounting to about Rs.14,75,000/- in the 2 year contract period. It was further stated that by the shortest route of DK Road -Tamarhat -Paglahat, the distance between Railway Siding/ FSD Gossaigaon to FCIFSD, Balajan via weighbridge, as per NIT, was 58 kms., as such, the transportation cost worked out to be Rs.15.55 per MTper KM. However, as the said road was not in a pliable condition, the contractor had to take the route via Sarfangury-Dotma- Fakiragram-Beltoli-Gauripur Road (alternative road), which was 112.73 KM,the transportation cost of which worked out to Rs.1,753/- per MTper KM. It is also projected that, in view of the said road condition, in the cancelled tender dated 30.10.2017 as well as in the re-tender process dated 12.12.2017, the distance was not shown as such, the selected bidder would be paid at the rate of Rs.981/- per MT for the whole of contract period of 2 years irrespective of the distance travelled. It was also stated that as the rate quoted by the petitioner in the earlier round of bidding in tender process dated 30.10.2017, was high, the said tender process was cancelled for administrative reasons.
6) The petitioner Company, in its affidavit-in-reply, had stated that the for the period of 2015-16, M/s. Sagar Basumatary was the selected transporter who was awarded the work at the rate of Rs.805/- per MT and that for the year 2016-18, the bid of the same bidder, namely, M/s. Sagar Basumatary was Rs.902/- per MT. which was 11.93% higher and as per the NIT dated 30.10.2017 the rate of Rs.1,025/- quoted by the petitioner was 13.63% higher than the previous rate but 30% below the market rate, whereas, M/s. Sagar Basumatary had quoted a rate of Rs.1,045/- per MT. However, in the re-tender process vide NIT dated 12.12.2017, the petitioner had quoted the same rate of Rs.1,025/- per MT., but M/s. Sagar Basumatary had submitted a lower bid of Rs.981/- per MT. Nonetheless, the respondents had paid M/s. Sagar Basumatary transportation charges at the rate of Rs.1,771.84 for 14 months against his quoted rate of Rs.902/- per MT in the previous tender for 2015-17, the respondents had caused extra payment to the tune of Rs.1,14,27,353/- to the said contractor.
7) The learned counsel for the petitioner has submitted that the tender dated Page No.# 4/12 30.10.2017 was cancelled by citing administrative reasons, which was an eye wash, because the respondents, after favouring the same contractor with excess payment, was seeking to award the same work to the same contractor for a further two year term. It was submitted that after the rate quoted by the petitioner was disclosed in connection with previous tender dated 30.10.2017, in the re-tender process of 12.12.2017, the existing contractor had quoted a lower price, who though on an earlier occasion had quoted a rate of Rs.902/- per MT., but was paid transportation cost of Rs.1,771.84 per MT.
8) It is also submitted that while in the tender process dated 30.10.2017, the L-1 bid of the petitioner was about 30% below the market rate and only about 1.7% higher than the previous enhancement rate, the cancellation of the bid of the petitioner was arbitrary and only to facilitate the existing contractor to bring down his rate from Rs.1045/- per MT to Rs.981/- per MT after the rate quoted by the petitioner got exposed. It is also submitted that the respondents had taken into an account a hidden and/or un-disclosed criteria for cancelling the previous NIT process dated 30.10.2017in a non-transparent and unfair manner because if the intention of the respondents was to provide a higher cap for the transportation rate at a particular level, the NIT dated 12.12.2017 should have specially spelt out the said criteria. By comparing the terms and conditions of both the NIT process dated 30.10.2017 and 12.12.2017, it is submitted that both the tenderers were almost similarly worded without providing the cap/limit of the rates to be quoted by the tenderers, the re-tender was only to give one more chance to the existing contractor after the rates quoted by the petitioner was exposed in the NIT process dated 30.10.2017. In support of his submissions, the learned advocate for the petitioner has relied on the case of Dutta Associates Pvt. Ltd. Vs. Indo Merchantiles Pvt. Ltd. & ors., (1997) 1 SCC 53.
9) Per contra, the learned Standing Counsel for the respondents has produced the records pertaining to NIT dated 30.10.2017 and 12.12.2017 and has provided photocopy of 30 (thirty) relevant pages, which are retained in therecord of this case. It is submitted that the allegations about over-payment being made to the previous contractor was imaginary because though the shortest route between Railway Siding/ FSD Gossaigaon to FCI FSD Balajan via weighbridge was 58 KM., but during the devastating flood of July, 2016, the Dhubri-Kachugaon Road near Kumarganj Bazar was washed away in several stretches and Page No.# 5/12 accordingly, the PWD authorities had informed the respondents that the road was in a very dilapidated condition and that there was no repairing and maintenance fund for the said road. Therefore, as the Dhubri Kachugaon Road was not fit for plying heavy loaded vehicles, as such, as per the tender condition of providing to the contractor transportation charges at the rate of Rs.902/- per MT per KM, a huge extra cost had to be borne by the respondents for transportation of food grains from Railway siding/ FSD Gossaigaon to FCI FSD Balajan through alternative road.
10) By referring to the note sheet of the file relating to the NIT process of 30.10.2017, it is submitted that after the tenders were evaluated, the Manager (Contract) was of the view that the rate of Rs.1,025/- per MT quoted by the petitioner was 13.63% higher than the existing/ outgoing contract rate for the same work and on comparing the rates with similar contract rate of Ex- RH Kokrajhar to Balajan, being Rs.912.56 per MT., it was observed that the L-1 rate was 12.32% higher, as such, the rate seemed to be 'somewhat inflationary'. Hence, the competent authorities, being the DGM(R), AGM(F) and Manager(F), had opined that the L-1 rate quoted by the petitioner was on a higher side and the authorities further opined that there was a possibility of obtaining a lower rate on re-tendering and accordingly, the previous tender process of 30.10.2017 was scrapped by floating a new NIT.It is also submitted that there was no fault in the re-tendering process because in the re-tendering process, a rate lower than the rate offered the petitioner was quoted by the successful bidder and therefore, huge public money would be saved in the new bidding process. It is submitted that in respect of the present tender process, it was a condition of the tender that the rate should be quoted as per the MT basis for the entire distance and not per MT per KM basis and, as such, it is submitted that this time, irrespective of the distance travelled, the transportation rate would be paid only on per MT basis. Hence, the learned Standing Counsel for the respondents had justified the tender process dated 12.12.2017, as it had fetched a lower rate than the NIT process dated 30.10.2017. It is also submitted that the decision making process was a transparent one and with an aim to reduce cost of transportation, which would be in greater public interest.
11) By referring to the case of Ma Binda Express Carrier & anr. Vs. North East Frontier Railway &ors., (2014) 3 SCC 760 , it is submitted that the authorities had the power and Page No.# 6/12 competence to scrap the tender process and that the NIT was merely a offer which states or its agencies are under no obligation to accept and, as such, the bidder participating in the NIT cannot insist that their bids/tenders should be accepted simply because a bid is the highest or lowest. By referring to the case of Air India Ltd. Vs. Cochin International Airport Ltd &ors., (2000) 2 SCC 617, it is submitted that only a decision making process and not the decision was amenable to judicial review and that it was open to the authorities not to accept a particular offer on a particular basis and it is also submitted that as per the ratio of the said case, it held therein that in a commercial transaction offer complex nature a lot of balancing work has to be done while weighing all the relevant factors and all the final decision has to be taken after taking an over-all view of the transaction and, as such, it is submitted that it was open to the respondents to choose its own method to arrive at a decision and the State can chose its method to arrive at a decision. It is further submitted that in the said case of Air India Ltd. (supra), it has been held that even when some defect is found in the decision making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point and that the Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not and only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere.
12) The records produced by the respondents discloses that in the present case the "Estimated Value Of Contract" (EVOC for short) was calculated on the basis of existing/ outgoing rate, being total quantity transported during one year x 2 x outgoing quantity rate = EVOC = 16767.621MT X 2 X Rs.902.05 PMT = Rs.3,02,50,465.04 and by providing for an escalation of 10%, EVOC = Rs.3,32,75,511.544, say Rs.3,33,00,000/-. Therefore, if compared to the EVOC, the NIT process dated 30.10.2017 had fetched anL-1 bid which was higher than the EVOC.
13) However, although the learned Counsel for the parties had read over the contents of the NIT dated 30.10.2017 and 12.12.2017, the learned counsel for the respondents could not show before this Court any reference to any "viability range" in the said NIT. Therefore, it was not one of the tender conditions that if the rate quoted by the bidders was higher than Page No.# 7/12 the EVOC, the tender process would be cancelled. Therefore, assuming that in the NIT process dated 30.10.2017, the bid exceeding EVOC can be said to be a justifiable ground to cancel the tender process, the respondents were required to disclose to the bidders in the NIT dated 12.12.2017 about a "viability range" or the condition that if the bid amount exceeded the EVOC, such bids were liable to be rejected. Under such circumstances, it appears to this Court that the decision making process for scraping the tender process vide NIT dated 30.10.2017was not transparently disclosed either in the NIT dated 30.10.2017 or in the NIT dated 12.12.2017. Therefore, the rejection of the NIT process dated 30.10.2017 on the ground that the bid quoted by the L-1 tenderer i.e. the petitioner was on higher side amounts to fixing of a criteria akin to condition of having a "viability range" or a rate cap, by which a bid above the said range was liable to be rejected. Thus, an essential criterion seems to have been introduced by the respondents after the tender process dated 30.10.2017 had culminated. In the opinion of this Court once a previous tender dated 30.10.2017 was rejected on the ground that the rate quoted was excessive,it was the duty of the respondents to disclose in the NIT process initiated on 12.12.2017 that if a bid exceeded a particular range, than the bid and/or the tender process would be rejected. Therefore, the justification of cancellation of tender dated 30.10.2017 is a post facto justification, a condition which did not exist when the NIT was issued on 30.10.2017 and it is also not found to exist even in the re-tender process of 12.12.2017. This, in the considered opinion of this Court, is not in public interest, as it lacks transparency or fairness and smacks of high degree of arbitrariness.
14) It is seen that the facts involved in the case of Air India Ltd. (supra) was in a totally different footing. In the said case, the Cochin International Airport Ltd. (CIAL for short) had invited offers by writing letter to 8 reputed agencies to enable it to decide the best terms and conditions of awarding a contract and to select the best agencies and in the said context, Air India Ltd. was permitted to give a presentation, where it revised its offer, resulting in the contract being awarded in favour of Air India Ltd., and in the said context, the Hon'ble Supreme Court of India had held that the CIAL was not bound to award the contract by accepting the highest offer and, as such, the appeal was allowed. However, the distinguishable facts in the present case in hand are that the NIT dated 30.10.2017 and 12.12.2017 prohibits negotiation with any of the bidders who participate in the tender.
Page No.# 8/12 Moreover, on facts, the case of Ma Binda Express Carrier & anr. (supra), is distinguishable from the present case in hand. In the said case the tender process was cancelled on the ground that the Railway Administration had discovered a serious deficiency as the tender forms were issued without enclosing therewith the terms and conditions subject to which the contract could be allotted or awarded and more importantly penalty clause had not been incorporated in the tender documents and it is because of the said omissions and deficiencies, that the tender process was canceled to be followed by a fresh tender process in due course.
15) In the present case in hand, it is not the case of the respondents that the NIT dated 30.10.2017 was cancelled owing to any deficiencies or omissions in the tender dated 30.10.2017, but though the tender was stated to be cancelled due to administrative reasons, the records as produced by the respondents reveal that as the rate quoted by the petitioner was held to be higher the said NIT dated 30.10.2017 was cancelled. Nonetheless, in the re- tender dated 12.12.2017, the respondents did not make any effort to inform the bidders about existence of any "viability range', and/or a cap for the bid amount, beyond which the bids would be invalid. Moreover, the records produced by the learned Standing Counsel for the respondents clearly disclose that for calculating EVOC in tender dated 30.10.2017, the authorities had accepted a 10% escalation on the basis of existing/ outgoing range. Thus, the outgoing rate being Rs.902.05, escalation by 10% would make the EVOC to be Rs.992.255. Therefore, on the failure of the respondents to transparently disclose to the bidders that bid above EVOC or any particular range would be considered to be excessive, the decision making process for canceling the tender dated 30.10.2017 is vitiated by lack of transparency, which in the considered opinion of this Court cannot be accepted to be in public interest, as it leaves scope of arbitrariness at the hands of the authorities to invoke a hitherto hidden criteria to cancel a tender process by assigning a totally different reason like in this case, where reason assigned was "administrative reason", whereas the real reason as revealed from the records is "bid being high".
16) Therefore, under the present fact situation, the ratio laid down in the case of Dutta Associates Pvt. Ltd.(supra) appears to be squarely applicable. Relevant paragraphs 4, 5 and 7are quoted herein below:-
Page No.# 9/12 "(4) After hearing the parties, we are of the opinion that the entire process leading to the acceptance of the appellant's tender is vitiated by more than one illegality. Firstly, the tender notice did not specify the "viability range" nor did it say that only the tenders coming within the viability range will be considered. More significantly, the tender notice did not even say that after receiving the tenders, the Commissioner/Government would first determine the "viability range" and would then call upon the lowest eligible tenderer to make a counter-offer. The exercise of determining the viability range and calling upon Dutta Associates to make a counter-offer on the alleged ground that he was the lowest tenderer among the eligible tenderers is outside the tender notice. Fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender. They did nothing of that sort. Secondly, we have not been able to understand the very concept of "viability range" though Shri Kapil Sibal, learned counsel for the appellant, and the learned counsel for the State of Assam tried to explain it to us. The learned counsel stated that because of the de-control of molasses, the price of rectified spirit fluctuates from time to time in the market and that, therefore, the viability range was determined keeping in view (1) distillery cost price; (2) export pass fees; (3) central sales tax; (4) transportation charges; (5) transit wastage 1%; and (6) warehouse operational wastage 1 1/2% -
vide the counter-affidavit filed by the secretary to Excise Department, government of Assam pursuant to this court's orders. Shri Sibal further explained that because of the possibility of the fluctuation, the tender notice contains clause (16) which reserves to the government the power to reduce or increase the contract rate depending upon the escalation or deceleration of the market price in the exporting States. We are still not able to understand. Clause (16) deals with post- contract situation, i.e., the situation during the currency of the contract and not with a situation at the inception of the contract. The tenderers are all hard-headed businessmen. They know their interest better. If they are prepared to supply rectified spirit at Rs.11.14 per LPL or so, it is inexplicable why should the government think that they would not be able to do so and still prescribe a far higher viability range. Not only the rate obtaining during the period when the tenders were called was Rs.11.05 per LPL, the more significant feature is that during the period of about more than two years pending the writ petition and writ appeal, the appellant has been supplying rectified spirit Rs.9.20 per LPL. If it was not possible for anyone to supply rectified spirit at a rate lower than Rs.14.72 (the lower figure of the viability range), how could the appellant have been supplying the same at such a low rate as Rs.9.20 for such a long period. It may be relevant to note at this stage the circumstances in which the appellant volunteered to supply at the said rate. Indo Mercantiles, the respondent herein, filed the writ petition and asked for an interim order. The learned Single Judge directed (vide Order dated 2-6-1994) that while Dutta Associates (appellant herein) shall not be given the contract, he "shall be allowed to execute the contract at the lowest quoted rate which is stated to be Rs.9.20 by the writ petitioner. Respondent 3 (Dutta Associates) states that the lowest quoted rate is Rs.11.14. If the lowest quoted rate is Rs.9.20, it is that rate at which the contract shall be given to Respondent 3". It is pursuant to the said order that the appellant-Dutta Associates has been supplying rectified spirit Rs.9.20 per LPL since June 1994 till October 1996. The said order did not compel the appellant (Respondent 3 in the writ petition) to supply at the rate of Rs. 9.20p. If that rate was not feasible or economic, he could well have said, 'sorry'. He did not say so but agreed to and has been supplying at that rate, till October 1996. It is equally significant to note that pursuant to the interim orders of this court (which directed the government to implement the orders of the Guwahati High court with respect to interim arrangement) negotiations were held with both the appellant and the first respondent herein; both offered to supply at Rs.9.20p. The Commissioner, of course, chose the first respondent, Indo Merchantiles, over the appellant, for reason given by him in his order dated 14-10-1996. The rate, Page No.# 10/12 however, remains Rs.9.20p and the appellant's counsel has been making a grievance of the Commissioner not accepting the appellant's offer. All these facts make the so-called "viability range"
and the very concept of "viability range" looks rather ridiculous - and we are not very far from the end of the three- year period for which the tenders were called for. Neither the interlocutory order of the learned Single Judge dated 2-6-1994 aforesaid nor does the order of the Commissioner dated 14-10-1996 passed pursuant to the interim orders of this court provide for any fluctuation in the rate of supply depending upon the fluctuation in the market rate in the exporting States, as provided by clause (16) of the Tender Conditions, which too appears rather unusual. The order of the learned Single Judge aforesaid does not also say that the rate specified therein is tentative and that it shall be subject to revision at the final hearing of the writ petition. As a matter of fact, no such revision was made either by the learned Single Judge or by the Division Bench. It is in these circumstances that, we said, we have not been able to understand or appreciate the concept of "viability range", its necessity and/ or its real purpose. Thirdly, the division bench states repeatedly in its judgment that having determined the "viability range", the government called upon only the appellant-Dutta Associates (third respondent in the writ petition/writ appeal) to make a counter- offer to come within the "viability range" and that his revised offer at the higher limit of the "viability range" (Rs 15.71) was accepted. The Division Bench has stressed that no such opportunity to make a counter-offer was given to any other tenderer including the first respondent. As the Division Bench has rightly pointed out, this is equally a vitiating factor.
(5) It is thus clear that the entire procedure followed by the Commissioner and the government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds 1 and 2, which we have indicated hereinabove, are more fundamental than the third ground upon which the High court has allowed the writ appeal .
(7) In the circumstances, we affirm the judgment of the Division Bench in writ appeal on the grounds stated above and direct that fresh tenders may be floated in the light of the observations made in this judgment. We reiterate that whatever procedure the government proposes to follow in accepting the tender must be clearly stated in the tender notice. The consideration of the tenders received and the procedure to be followed in the matter of acceptance of a tender should be transparent, fair and open. While a bona fide error or error of judgment would not certainly matter, any abuse of power for extraneous reasons, it is obvious, would expose the authorities concerned, whether it is the Minister for Excise or the Commissioner of Excise, to appropriate penalties at the hands of the courts, following the law laid down by this court in Shiv Sagar Tiwari v. Union of India, (1996) 6 SCC 558 and (1996) 6 SCC 599 (In re, Capt. Satish Sharma and Sheila Kaul)."
17) In view of the discussions above, as the NIT dated 30.10.2017 did not indicate as one of the conditions that if the rates were quoted beyond the particular limit/cap, it would entitle the respondents to cancel the tender process, the decision making process to cancel the tender dated 30.10.2017 is found to be vitiated by lack of transparency and fairness in respect of the NIT dated 30.10.2017.
18) This Court is of the further opinion that had the respondents fairly disclosed in the NIT dated 12.12.2017 that the bidders should not quote more than a particular "viability Page No.# 11/12 range", perhaps then the cancellation of the NIT dated 30.10.2017 would have been justified. However, having not done so, this Court is of considered opinion that the decision making process for cancellation of the NIT dated 30.10.2017 is vitiated by lack of transparency and for lack of fairness and full disclosure of the essential criteria that beyond a particular point, bids would be classified as exorbitant or excessive and the tender would be cancelled. This ground for cancellation is clearly an after- thought, which was not disclosed to the bidders at the time of submission of their respective bids, owing to which the cancellation of the NIT dated 30.10.2017 in tainted with unreasonableness.
19) Therefore, this Court has no hesitation in setting aside and quashing the E-tender No.S&C/1882/AP/Assam/2017/02 for road transport contract Ex-Railway Siding/FSD Gossaigaon to FCI FSD Balajan via weighbridge, contained in NIT
No.S&C/1882/AP/Assam/2017 dated 12.12.2017. Accordingly, to make the bid process to be transparent, fair and open, and to remove arbitrariness in the decision making process, it would be open to the respondents to put this particular work on a fresh tender, wherein it would be open to the respondents to disclose all essential criteria including "viability range"
or to clearly spell out a cap and/or upper limit of the bid amount, beyond which the respective bid and/or the whole tender process would be liable to be cancelled.
20) Taking note of the fact that in this tender process dated 12.12.2017, the bid value had come down, in public interest, this Court is not inclined to issue a direction to the respondents to accept the bid of the petitioner in the NIT dated 30.10.2017. Moreover, it is seen that the petitioner has not impleaded M/s. Sagar Basumatary as one of the respondents herein, this Court is not inclined to make any observations as regards allegations concerning the said party in their absence, as such, it is provided that the reference to the said party in this order shall not prejudice the said firm in any manner whatsoever.
21) Hence, this writ petition stands partly allowed. No cost.
JUDGE
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Comparing Assistant