Gauhati High Court
WA/213/2022 on 9 November, 2022
Author: Soumitra Saikia
Bench: R.M. Chhaya, Soumitra Saikia
GAHC010119272022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT APPEAL NO. 213 OF 2022
B. K. Construction,
N.S. Avenue, Vidyasagar Sarani,
Silchar- 788 005, District- Cachar, Assam,
Represented by Shri Kumarjit Deb,
Son of Late Kaliranjan Deb,
resident of N.S. Avenue, Vidyasagar Sarani,
Silchar- 788 005, District- Cachar, Assam
........Appellant
-Versus-
1. Managing Director,
National Health Mission, Assam,
Saikia Commercial Complex,
Christian Basti, Guwahati- 05.
2. Technical Evaluation Committee,
Office of the Mission Director,
Saikia Commercial Complex,
Christian Basti, Guwahati- 05.
3. M/S K. K. Enterprise,
Uzanbazar, Sati Radhika Road,
P.O.- Uzanbazar, Dist- Kamrup(M), Assam.
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........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON'BLE MR. JUSTICE SOUMITRA SAIKIA For the Appellant : Mr. U. K. Nair, Sr. Advocate : Mr. A. K. Sharma, Advocate.
For the Respondents : Mr. D. Saikia, AG, Assam, : Mr. B. Gogoi, SC, NHM.
Date of Hearing : 12.09.2022
Date of Judgment & Order : 09.11.2022
JUDGMENT & ORDER (CAV)
(Soumitra Saikia, J)
This writ appeal is directed against the Judgment and Order dated 06.06.2022 passed in WP(C) No. 4044/2021.
2. The Office of the Mission Director, NHM, Assam, floated a National Competitive Bidding (NCB) inviting bids for the work; "Up-gradation of existing Tangla CHC TO SDCH in Udalguri District under NHM, Assam on Turnkey Basis". The dates notified for download of tender through website and the annual bids preparation and submission dates were notified from 25.05.2021 (12:00 Hrs.) to 15.06.2021 (14:00 Page | 2 Hrs.). The last date and time for manual submission was shown as 15.06.2021 upto 14:00 Hrs. The date of technical bids opening was 16.06.2021 (16:30 Hrs). The place for opening the bids was the Office of the Mission Director, NHM, Assam. The estimated cost of the project was Rs. 14,38,10,315/-(Rupees Fourteen Crores Thirty Eight Lakhs Ten Thousand Three Hundred Fifteen) and the period of completion from the date of issue of work order is 24 (Twenty Four) months.
3. The criteria to be fulfilled by bidder/contractor is prescribed under Clause 4.5. The said clause inter alia prescribes that the contractor should possess required valid electrical license, Anti-termite license for execution of building electrification works and should have executed similar electrical works for a minimum amount as indicated in Appendix- I of the ITB in any one year.
4. As per the instructions to the bidder, the information and documents required to be included with their bids to be submitted are prescribed under Clause 4.3. As per clause 4.4, bids from joint ventures are not acceptable to qualify for the award of the contract, bidders will have to fulfill the criteria prescribed under Clause 4.5 A of the ITB.
5. The appellant and the private respondent had participated in the tender process and the respondent No. 3 was found to be lowest bidder. The appellant challenged the Page | 3 Tender Evalution Committee decision whereby the bid offered by the respondent No. 3 was found to be the lowest bidder, on the ground that the respondent No. 3 did not have a valid license for executing electrical works as prescribed under the tender conditions. According to the shortcoming on the part of the respondent No. 3 was sought to be made up by engaging a sub-contractor, namely, M/s Solitaire Enterprise, though the name of the said sub-contractor was never mentioned by the respondent No. 3 in the bid documents submitted as prescribed under the tender conditions. It was submitted by the appellant before the learned Single Judge that although the document pertaining to the sub-contractor may have been submitted by the respondent No. 3 at a later stage, yet the respondent No. 3 could not have been considered to be a valid tenderer in the absence of non- fulfillment of the requirement as per the ITB and submission of relevant documents relating to the sub-contractor sought to be engaged and, therefore, the NHM authorities could not have considered the respondent No. 3 to be a valid tenderer let alone be considered as the lowest bidder.
6. The learned Single Judge declined to issue any interim order but issuance of the work order was made subject to the outcome of the writ petition. The appellant being aggrieved came up before the Appellate Court challenging the order of the learned Single Judge declining to issue interim order. The Appellate Court arrived at a finding that Page | 4 the Tender Committee had clearly observed that as regards Clause 7 Part I GCC relating to the furnishing of the names of the sub-contractor in respect of the respondent No. 3 it was found to be Nil. It was observed that the Tender Committee also noted that the respondent No. 3 did not mention in the bid documents any sub-contractor as required under Clause- 7 of Part- I GCC. The Appellate Court was of the view that the issue before the Court is that non-mentioning of sub- contractors in the bid documents of respondent No. 3 renders his bid documents non-responsive and perhaps consideration of his price bid in order to award contract in his favour will raise serious issues about the validity of the award of the contract. The matter was accordingly remanded to the learned Single Judge to re-consider this issue as to whether in spite of not being non-responsive on the ground as alleged by the writ appellant as discussed above, the work can still be awarded to the respondent No. 3. The matter was remanded to the learned Single Judge to re-consider this aspect and pass fresh orders by assigning proper reasons thereof.
7. The learned Single Judge heard the matter and upon consideration of the submissions made and upon perusal of the pleadings, came to a finding that although the respondent No. 3 did not have electrical license but it did have a tie-up with one M/s Solitaire Enterprise and which tie- up was accepted by the Tender Evalution Committee as Page | 5 satisfactory as per the ITB. The learned Single Judge held that the employer had accepted tie-ups with third party when the bidders did not have valid Anti-termite license and electrical license and such relaxation was granted uniformly to all the bidders. The learned Single Judge held that the appellant was also a beneficiary of such a relaxation. Though the appellant did not have Anti-termite license, its tie-up with Sri Abbas Shubhan as a sub-contractor was accepted by the Technical Evaluation Committee. The learned Single Judge held that the requirements under Clause 4.5, Clause 4.5(f) and 4.3(xi) are separate and distinct. It was held that the employer has the autonomy to fix the terms and conditions and the power to grant relaxation to tender conditions without any discrimination by permitting tie ups for the purpose of fulfillment of the conditions of Clause 4.5.7(a) and such benefit has also been accrued to the appellant. Accordingly, the learned Single Judge dismissed the writ petition declining to interfere with the findings of the Tender Committee considering the respondent No. 3 to be the L-1. The learned Single Judge did not find any illegality in the decision making process and accordingly the writ petition was dismissed. Being aggrieved, the present appeal is preferred assailing the impugned Judgment and Order dated 06.06.2022 passed in WP(C) No. 4044/2021. The appeal has been preferred on the following grounds:-
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1. For that, the Impugned Judgment dated 06/06/2022 is bad in law as well as in facts.
2. For that, the materials on record do not contain anything which has prompted the Learned Single Judge in recording the impugned finding.
3. For that, the Learned Single Judge erred in holding that the private respondent having projected M/S Solitaire Enterprise as its subcontractor for executing the electrical component of the same being rejected, tie-up with M/S Solitaire for use of electrical license can be allowed, for the reason that the shape of proposal and non acceptance of such proposal on the ground of non-furnishing of the documents as per table 10 shall not invalidate the tie-up under clause 4.5(a).(f).
4. For that, the Learned Single Judge erred in appreciating the note given by the Technical bid him because he had failed to furnish required details of sub- contractor.
5. For that, the Learned Single Judge erred in holding that the sub-contract can be treated as tie up without express willingness of Respondent.
6. For that the Learned Single Judge erred in holding that irregularities if occurred then it can be cured by giving benefit to others arising out of this irregularities.
7. For that the Learned Single Judge failed to conceive that it is a public bid for the interest of the common people at large at the expense of the state exchequer.
Any infirmity or deformity shall affect the interest of the common people, along with it will infringe the legal right of the appellant in getting the due work order while Respondent No. 3 will get undue benefit from the public authority in acquiring the same.
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8. For that, the Learned Single Judge erred in appreciating the fact that the respondent no-3 had mislead the tender committee to become a qualified bidder by not mentioning the details of sub contractor as required by the bid.
9. For that, Learned Single Judge has failed appreciating the fact that the condition of not allowing sub contracting as the respondent no.3 furnished mismatched details is nothing but undue favour shown to a unqualified bidder. required electrical license as required by the bid as per clause 4.5.A.f.
11. For that, Learned Single Judge has failed in appreciating the fact that the clause 4.5.A.f of the bid specifically mentioned that "the contractor should posses required valid electrical license, anti termite license for the executing the building electrification works and should have executed similar electrical works for a minimum amount as indicated in Appendix-I in any one year. "the Respondent-3 having not satisfied the said requirement his bid was non-responsive and there arose no occasion for opening of his Financial bid.
12. For that, Learned Single Judge has failed in appreciating the fact that acceptance of non responsive bid will amount to prejudice to other bidders and the contract work will be sub standard.
13. For that, Learned Single Judge has failed in appreciating the fact that the tender committee has adopted a unreasonable and illegal procedure to evaluate the technical bid of the respondent no.-3 with mala-fide intention.
14. For that, as per the bid documents, contractor should have license for conducting electrical and anti termite work. The respondent no. 3 does not possess Page | 8 the same hence he decided to do the work by sub contracting and to this effect he has available it is found that the respondent -3 did not furnish any electrical license and anti termite license of his own which are mandatory documents to be acquired by the bidder, as per the bid.
The relevant portion of the bid, clause 4.5.A.f, says:
"the contractor should posses required valid electrical license, anti termite license for the executing the building electrification works and should have executed similar electrical works for a minimum amount as indicated in Appendix-I in anyone year."
While the tender committee has accepted the technical bid of the respondent-3 put a condition that the respondent-3 will not be given the facility of sub contracting, resulting In that the licenses of the sub contractor submitted by the respondent-3 will not be counted. Now the respondent-3 is responsible to do the whole contract work on his own. Since respondent-3 did not furnish electrical and anti termite license of his own hence the bid of respondent-3 is non responsive. If the contractor is awarded the tendered work, who is a non responsive bidder, it will be illegal and fatal to the justice and the common public will be the sufferer. As such, sub contracting having been bared, the bid of the Respondent-3 having not met the eligibility criteria as mentioned in the clause.
8. Before this Court, the only question which was urged by the appellant is that in terms of Clause 4.5A, of the ITB, the particulars of the sub-contractor engaged by the respondent No. 3 for execution of electrical works was not submitted Page | 9 along with the bid documents. According to the appellant, non-furnishing of the particulars of the electrical sub- contractor is in total deviation of the prescription mandated under the ITB. Such deficiency which is noted by the Tender Evalution Committee, renders the bid of respondent No. 3 as non-responsive. Under such circumstances, short listing of responding No. 3 as the lowest bidder/L-1 for being awarded the contract is totally opposed to the prescription and the scheme of the ITB and also opposed to public policy. It is contended that the learned Single Judge erred in law and on facts in dismissing the writ petition preferred by the appellant and refusing to interfere with the Tender Evalution Committee findings whereby the respondent No. 3 was held to be L-1. It was further urged that the learned Single Judge in arriving at a conclusion that any irregularity which may have occurred can be cured by giving same benefit to others is erroneous and contrary to law. Accordingly, it is urged that permitting the bid of respondent No. 3 to be accepted in spite of the aforesaid disqualification will amount to undue favour being shown to a bidder who is otherwise qualified in terms of the ITB.
9. Referring to the tender conditions, it is submitted by the learned senior counsel for the appellant that the provisions for sub-contracting some component of the work is permissible provided the bidder declares the qualification and experience of identified sub-contractor in the relevant field Page | 10 along with the bid. Referring to Clause 4.5(a), it is submitted that in terms of the said clause the contractor must possess valid electrical license and Anti-termite license. It is further submitted that except to the extent as provided under Clause 4.5(i) in the tender documents, the sub-contractors experience and resources shall not be taken into account towards determining the bidder's compliance. The learned senior counsel for the appellant submits that the sub- contractor of the respondent No. 3 was projected to be one M/s Solitaire Enterprise and a notarized affidavit has presented in support thereof. However, Mr. Nair, learned senior counsel referring to the technical committee decision submits that there is a finding by the Technical Committee that the respondent No. 3 had failed to furnish details of sub- contractor as per the mandatory requirement under Clause- 7 of Part-III of the GCC. It is further submitted that the Technical Evaluation committe findings reveals that the information furnished by the respondent No. 3 relating to sub-contractor is mismatched and sufficient data was not available for evaluating the sub-contracting value. It is further submitted that the technical committee earlier rejected the proposal of the projected sub-contractor, namely, M/s Solitaire Enterprise but the said technical committee however permitted the respondent No. 3 to use the electrical license of M/s Solitaire Enterprise as a tie-up based on the documents furnished by respondent No. 3. It is Page | 11 submitted that once a document is rejected by the Technical Evaluation Committee, the same cannot be allowed to be used as tie-up and the documents belonging to M/s Solitaire Enterprise including the electric license cannot be relied upon by the technical committee to make the bid of respondent No. 3 valid as the lowest responsive bidder. It is submitted that these tender conditions are essential conditions and the same must therefore be strictly adhered to. However, despite such defects and shortcoming on the part of the respondent No. 3 and the findings recorded to that effect by the technical committee, the respondent No. 3 was declared as the most responsive bidder. Such action of the NHM, Assam is absolutely illegal and violative of the tender conditions and therefore arbitrary. The same ought to be interfered with and the matter be remanded back for a fresh decision by the NHM, Assam and the Judgment and Order of the learned Single Judge impugned in the present proceedings be accordingly interfered with and set aside.
10. Per contra, Mr. B. Gogoi, learned standing counsel, NHM, Assam submits that the respondent No. 3 had submitted declaration that M/s Solitaire Enterprise would be engaged as a sub-contractor. However, the required Table i.e. "Table-10" in which format the details of the sub- contractor was required to be submitted by the respondent No. 3, was not found. As such, the technical committee recorded a finding that the Table- 10 data was mismatched Page | 12 and sufficient data was not available as required and accordingly the technical committed decided to reject the proposal of sub-contracting made by the respondent No. 3. However, the electric license of M/s Solitaire Enterprise was permitted to be used for the work in question by treating it to be a tie-up. Such tie-ups were allowed in respect of all the bidders including the appellant. It is submitted that the appellant did not have any Anti-termite license and he submitted a proposal to use the license of one M/s Sunrise Enterprise. Similarly, a tie-up was permitted in respect of another bidder, namely, NA Enterprise and one Manaranjan Brahma, besides the respondent No. 3.
11. Mr. Gogoi, learned standing counsel in all fairness submitted that there is no provision for tie-up in the contract document, however, such a practice existed in the organization while considering such bids. Accordingly, the same procedure was followed in the present proceeding. It is submitted that the benefit accrued to respondent No. 3 was also granted in favour of all the bidders including the appellant. None of the bidders including the appellant raised any objection in respect of such benefits granted during Tender Evaluation Process. Merely because, the respondent No. 3 has been declared as the most responsive bidder, the appellant cannot be permitted to assail the said evaluation process declaring respondent No. 3 to be most responsive bidder, when the appellant himself is a beneficiary of the "tie-
Page | 13 up" which benefit was also granted in favour of the all other bidders including respondent No. 3.
12. Mr. P. Nayak, learned counsel appearing on behalf of the respondent No. 3 adopts the arguments of Mr. B. Gogoi, learned standing counsel for the NHM, Assam. Further it is submitted that the said documents in question was uploaded along with the bid documents for the purpose of tie-up with M/s Solitaire Enterprise and not for the purpose of sub- contracting.
13. The learned counsels for the parties have been heard. Pleadings on record including the NIT enclosed have been carefully perused. The impugned Judgment and Order of the learned Single Judge has also been perused.
14. The NIT which was floated by the NHM for "Up- gradation of existing Tangla CHC TO SDCH in Udalguri District under NHM, Assam on Turnkey Basis works containing elaborate conditions which laid down the criteria to be fulfilled by the intending tenderers. That pursuant to the aforesaid NIT, total 8 bids were received in offline and online portal including that of the appellant and respondent no. 3. The technical bids were opened on 29.06.2021 and upon preliminary examination of the bids, it transpired that out of the 8 bids, 3 bidders failed to submit the requisite bid security in terms of the tender conditions and accordingly, technical bid evaluation committee proceeded to evaluate the Page | 14 bids of only five bidders including that of the appellant and respondent no. 3. That subsequent to the opening of the technical bid, three bids were found to be technically responsive including that of the appellant and the respondent no. 3 and accordingly, the financial bids were opened in respect of the said three bidders on 17.08.2021. The bid of respondent no. 3 was found to be the lowest responsive Bid at the quoted rate of Rs. 12,58,06,632.12. Accordingly, it was decided to allot the work in is favour, subject however to the condition that he would not be entitled to go for sub- contracting any portion of the work in terms of the Clause 4.3 (XI) of the ITB and Clause 7.1 of the GCC.
15. A reference to Clause 1.1 of the General Conditions of Contract (GCC) is necessary to understand the definition attributed to the various terms used in the Contract. A contractor has been defined under Clause 1.1 as under:-
"The contractor is a person or corporate body whose Bid to carry out the Works has been accepted by the Employer."
16. Similarly, a sub-contractor has been defined under the GCC as under:-
"A Sub-contractor is a person or corporate body who has a Contract with the Contractor to carry out a part of the work in the Contract, which includes work on the Site".
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17. Although, under Clause 4 of the ITB, more particularly, Clause 4.4, it is provided that bids from joint ventures are not acceptable, nowhere in the contract including the definitions furnished in GCC defines "Joint Ventures". There is also no definition with regard to "Tie-up". As per the ITB clause- 3 which prescribes for eligible bidders, it is seen that the invitation for bids is open to all bidders.
18. Under the instructions to bidders (ITB) in respect of qualification of the bidders, the conditions prescribed are extracted below:-
"(A) GENERAL Type of Bid:
The Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 (named in Appendix to ITB) invites bids for the work: - "Up-gradation of existing Tangla CHC to SDCH in Udalguri District under NHM, Assam on Turnkey Basis"
1.1 The Successful bidder will be expected to complete the works by the intended completion date specified in the Contract data.
1.2 Throughout this bidding document, the terms 'bid' and 'tender' and their derivatives (bidder/tenderer, bid/tender, bidding/tendering, etc.) are synonymous.
2. Source of Funds 2.1. The expenditure on this project will be met by NATIONAL HEALTH MISSION, Assam.
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3. Eligible Bidders 3.1. This Invitation for Bids Is open to all bidders. 3.2 Deleted
4. Qualification of the Bidder 4.1. All bidders shall provide in Section 2, Forms of Bid and Qualification, Information, a preliminary description of the proposed work method and schedule, including planning, charts, PERT & CPM diagram as necessary. The proposed methodology should include programme of construction backed with equipment planning and development duly supported with broad calculations and quality assurance procedures proposed to be adopted justifying their capability of execution and completion of work as per technical specifications, within stipulated period of completion.
Documents showing Project organization (Flow Chart) Project Organization (Duties and Responsibilities), Methodology of Working, Test and Inspection Plan and Safety should also accompany the bid.
4.2. Deleted.
4.3 All bidders shall include the following information and documents with their bids in Section 2.
i) Copies of Original documents defining the constitution or legal status, place of registration, and principal place of business; written power of attorney of the signatory of the Bid to commit the bidder;
ii) Total monetary value of construction work performed for each of the last five years,;
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iii) Experience in works of a similar nature and size for each of the last five years, and details of works underway or contractually committed; and clients who may be contacted for further information on those contracts;
iv) Major items of construction equipment proposed to carry out the contract;
v) Qualifications and experience of key site management and technical personnel proposed for Contract;
vi) Reports on the financial standing of the Bidder, such as profit and loss statements auditor's reports for the past five years;
vii) Evidence of access to line (s) of credit and availability of other financial Resources facilities (1 of Contract Value), certified by the Bankers (Not more than 3 Months old);
viii) Undertaking that the bidder will be able to invest a minimum cash up to 25% of contract of work, during implementation of work;
ix) Authority ...eek references from the Bidder's Bankers; X) Information regarding any litigation, current or during the last five years in which the Bidder is involved, the parties concerned, and disputed amount;
xi) Proposals for subcontracting components of the Works amounting to more than 10% of the Bid Price (for each, the qualifications and experience of the identified sub-contractor in the relevant field should be annexed); and the sub contracting agencies, identified sub-contractor in the relevant field should be annexed); and the sub contracting agencies, idenfied will not be changed or droped without the approval of the Mission Director, NHM, Assam.
xii) The proposed methodology and programme of construction, backed with equipment planning and deployment, duly Page | 18 supported with broad calculations and quality control procedures proposed to be adopted, justifying their capability of execution and completion of the work as per Technical Specification within the stipulated period of completion. Milestones.
xiii) The Contractor having PAN Card/VAT Registration/Labour License registration under EPF & MP Act,1952 etc. are eligible to participate in the bid process 4.4 Bids from Joint ventures are not acceptable.
4.5 A. to qualify for award of the contract, each bidder in its name should have in the last five years as referred to in Appendix.
a. Achieved a minimum financial turnover (in all classes of civil engineering construction works only) amount indicated in Appendix- I in any one year;
b. The bidder should preferably be a profit making one for the last five years.
c. Satisfactorily completed, as stated in IFB page no.4. d. In case the evaluated Bid Amounts are equal, preference for allotment of the project will be given to the bidder who has completed Hospital Building works on earlier occasion.
e. Executed in any one year the minimum quantities of the following items of works as:
i. Cement Concrete (including RCC and PCC) ii. Brick Work.
iii. Steel Work (Reinforcement Steel) f. The contractor should possess required valid electrical license, Anti-termite license for executing the building electrification works and should have executed similar electrical works for a minimum amount as indicated in Appendix- I in any one year."
Page | 19 The contractor should possess required valid license for executing the water supply/sanitary engineering works and should have executed similar water supply/sanitary engineering works for a minimum amount as indicated in Appendix-I in any one year.
B...........................
C. to Qualify for the package of contracts made up of this contract for which bids are invited in the IFB, the bidder must demonstrate having experience and resources sufficiently to meet of the qualifying criteria for the contracts."
BID OPENING AND EVALUATION 23 Bid Opening ...................
24 ..............................
25 Clarification of Financial Bids 25.1 To assist in the examination, evaluation, and comparison of Bids, the Mission Director, NATIONAL HEALTH MISSION, Christianbastl, Guwahati-5 may, at his discretion, ask any Bidder for clarification of his bid, including breakdowns of unit rates. The request for clarification and the .response shall be in writing, but no change in the price or substance of the Bid shall be sought, offered, or permitted except as required to confirm the correction of arithmetic errors discovered by the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 in the evaluation of the Bids in accordance with Clause 27.
25.2 Subject to sub-clause 25.1, no Bidders shall contact the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 on any matter relating to his bid from the time of the bid opening to the time the contract is awarded. If the Bidders wish to bring additional information Page | 20 to the notice of the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5, it should do so in writing.
25.3 Any effort by the Bidders to influence the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 in the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5's bid evaluation, bid comparisons or contract award decisions may result in the rejection of the Bidders' bid.
26. Examination of Bids and Determination of Responsiveness 26.1. During the detailed evaluation of "Technical Bids", the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 will determine whether each Bid
(a) meets the eligibility criteria defined in clause 3 and 4; (b) has been peroperly signed; (c) is accompanied by the requires securities and; (d) is subsequently responsive to the requirements of the Bidding documents. During the detailed evaluation of the "Financial Bid", the responsiveness of the bids will be further determined with respect to the remaining bid conditions, i.e. priced bill of quantities, technical specification, and drawings 26.2 A substantially responsive "Financial Bid" is one, which conforms to all the terms, conditions, and specifications of bidding documents, without material deviation. A material deviation or reservation is one (a) which affects in any substantial way the scope, quality, or performance of the Works; (b) which limits in any substantial way, inconsistent with the Bidding documents, the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5's right or the Page | 21 Bidder's obligations under the contract; or (c) whose rectification would affect unfairly the competitive position of other Bidders presenting substantially responsive Bids.
26.3 If a "Financial Bid" is not substantially responsive, it will be rejected by the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahatl-5, and may not Subsequently be made responsive by correction or withdrawals of the non-conforming deviation or reservation.
27. ..................................
28. ..................................
29. Evaluation and Comparison of Financial Bids 29.1 The Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 will evaluate and compare only the Bids determine to be substantially responsive In accordance with Sub-Clause 26.2.
29.2 In evaluating the Bids the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 will determine for each Bid the evaluated Bid Price by adjusting the Bid Price as follows:
(a) Making any correction for errors pursuant to Clause 27; or
(b) Making an appropriate adjustments for any other acceptable variations, deviations; and
(c) Making appropriate adjustments to reflect discounts or other price modifications offered in accordance with Sub-Clause 23.6.
29.3 The Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 reserves the right to Page | 22 accept or reject any variation or deviation. Variations and deviations and other factors, which are in excess of the requirements of the Bidding documents or otherwise results in unsolicited benefits for the Mission Director, NATIONAL HEALTH MISSION, Christianbasti, Guwahati-5 shall not be taken into account in Bid evaluation.
29.4 The estimated effect of the price adjustment conditions under Clause 47 of the Condition of Contract, during the period of implementation of the contract, will not be taken into account in Bid evaluation.
29.5. Deleted 26.6. If a bid contains several items in the Bill of Quantities, which are unrealistically priced low, and which cannot be substantiated satisfactorily by the bidder, may be rejected as non-responsive."
19. A careful perusal of these conditions along with other provisions of other clause of the NIT reveals that this NIT is open to all bidders except joint ventures. What, therefore, is not permitted under the conditions to the ITB is participation of joint ventures' bids. The admitted facts as have been presented before us is that there was a deficiency in furnishing the details of sub-contractors by respondent No. 3 in the prescribed format although the same is stated to be supported by a notarized affidavit. Although, from the facts urged it is revealed that the respondent No. 3 had submitted certain information projecting one M/s Solitaire Enterprise to Page | 23 be a sub-contractor, the same, however, was not found to be as per the prescription of the terms and condition under the NIT/ITB. Notwithstanding that the Technical Evaluation Committee considered the bid offered by the respondent No. 3 to be satisfactory by permitting the respondent No. 3 to tie- up with one M/s Solitaire Enterprise for the purposes of the electrical works. Accordingly, the question projected by the appellant is whether the said M/s Solitaire Enterprise who was initially projected to be a sub-contractor of respondent No. 3 and in view of the Technical Evaluation Committee findings that sub-contractor details have not been furnished as per the prescription of the NIT, whether the respondent No. 3 can be subsequently permitted to participate in the bid evaluation process by projecting M/s Solitaire Enterprise to a be tie-up and consequently whether respondent No. 3 be accepted as the L-1 bidder pursuant to Financial Evaluation Committee. The pleadings reveal that in response to the NIT there were initially 8(eight) bidders, namely,
1. M/s N.A. Enterprise,
2. Elite Agency,
3. M/s Nirman,
4. KK Enterprise,
5. SD Construction,
6. Manaranjan Brahma,
7. Ganesh Tamuli & B.K. Construction.
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20. As such, it is nobody's case that M/s Solitaire Enterprise had submitted its bid in response to the instant NIT as a independent bidder and having been rejected by the technical Evaluation Committee, it now seeks to operate as a sub-contractor of respondent No. 3. Although, in the bid documents submitted by the respondent No. 3, the details of the sub-contractor were not found in the prescribed format, there was no malice attributed to the NHM or to respondent No. 3 to suggest that the selection of respondent No. 3 as the lowest responsive bid was because of mala fide intention by the NHM. What is also noticed is that a similar benefit of tie-up has been permitted to the appellant also. The appellant has a tie-up with one M/s Sunrise Enterprise for execution of pest control work as the appellant did not possess a valid Anti-termite license, and which fact has also not been disputed by the appellant.
21. As have been held by the Apex Court in several Judgments that in matters of commercial contracts, the power of judicial review is extremely limited. Unless there is complete arbitrariness and/or mala fide projected towards the employer during the Tender Evaluation process, the Writ Courts are expected to refrain from interfering with the decision making process arrived at by the Tender Evaluation Committee and/or the employer. No such material has been brought before this Court to project that the sub-contractor and/or the tie-up sought to be entered into by the Page | 25 respondent No. 3 does not have the capacity to execute the work in hand. No such views are also expressed by the employer i.e. NHM. Under the circumstances, where the NHM is the author of the NIT floated and is also the employer, they are best suited to interpret the tender conditions as per their requirements. Further since, no mala fide or perversity has been attributed to the employer i.e. NHM, primacy is to be given to the interpretation of the authority/employer as regards the Tender Conditions and it's requirements thereunder. Consequently judicial review of the Tender Evaluation Committee decision and/or any interpretation of the tender decision qua the interpretation given by the employer are not called for in the facts of this case. The interpretation given by the authority to the tender conditions will prevail in the absence of any arbitrariness, mala fide and/or perversity. [(2017) 4 SCC 170 - JSW Infrastructure Limited and Another -VS- Kakinada Seaports Limited & Ors.]
22. The NIT conditions involving technical works are different from contract documents of other branches of law. The tender inviting authority is the best person to understand and appreciate its requirement and to interpret the tender document. As such there is a very limited scope of judicial review in such matters. [(2016) 15 SCC 272 - Montecarlo Limited -VS- NTPC Limited.].
23. Notwithstanding the finding of the Co-ordinate Bench in its order dated 10.09.2021 passed in WA No. 194/2021, in Page | 26 view of our finding as above and in view of the law laid down by the Apex Court as discussed above, no judicial review is called for to interfere with the findings of the Tender Evaluation Committee by holding the respondent No. 3 to be the responsive L-1 bidder.
24. In view of our findings, we find no ground to interfere with the learned Single Judge's Judgment and Order. The learned Single Judge's order is upheld as also the decision of the Tender Evaluation Committee. The authorities are at liberty to proceed with the work order, if so advised.
25. The Writ Appeal is accordingly, dismissed. No order as to cost.
JUDGE CHIEF JUSTICE
Comparing Assistant
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