Gauhati High Court
WP(C)/2066/2020 on 21 January, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/38
GAHC010065922020
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WP(C) 2066 of 2020
1) VEDANG RADIO TECHNOLOGY PVT. LTD.
308, EVERSHINE MALL, CHINCHOLI BUNDER,
MIND SPACE, LINK ROAD, MALAD (WEST),
MUMBAI- 700064. A PRIVATE LIMITED COMPANY
REP. BY ITS HEAD OF SALES AND BUSINESS DEVELOPMENT
MR. PARTHA PRATIM DAS, ADDRESS- 308, EVERSHINE MALL, CHINCHOLI BUNDER,
MIND SPACE, LINK ROAD, MALAD (WEST), MUMBAI- 400064
2) PARTHA PRATIM DAS
S/O- LT. AKSHOY KUMAR DAS
ADDRESS- 308, EVERSHINE MALL
CHINCHOLI BUNDER, MIND SPACE, LINK ROAD
MALAD (WEST), MUMBAI- 40
.................. Petitioners
-Versus-
1) THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
HOME AND POLITICAL DEPTT., DISPUR, GHY.- 781006.
2) DIRECTOR GENERAL OF POLICE
ASSAM, ULUBARI, GUWAHATI
DIST- KAMRUP(M), ASSAM. PIN- 781007
3) ADDL. DIRECTOR GENERAL OF POLICE (COMMUNICATION)
ASSAM, ULUBARI, GUWAHATI
DIST- KAMRUP(M), PIN- 781007
4) DIRECTOR OF POLICE (COMMN.)
ASSAM, ULUBARI, GUWAHATI
DIST- KAMRUP(M), PIN- 781007
Page No.# 2/38
5) TRIGYN TECHNOLOGIES LTD.
27, SDF-1 SEEPZ-SEZ, ANDHERI (EAST)
MUMBAI- 400096
REP. BY R. GANAPATHI, CHAIRMAN AND EXECUTIVE DIRECTOR
...................Respondents
Advocate for the Petitioners : Mr. U.K. Nair, Sr. Advocate Advocate for the Respondent no. 5 : Mr. D. Baruah Advocate for the Respondent nos. 1 to 4 : Mr. G. Pegu, Jr. Govt. Advocate Date of Hearing : 10.12.2020 Date of Judgment : 21.01.2021 BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER (CAV) The present writ petition under Article 226 of the Constitution of India has been preferred by the petitioners on being aggrieved by the impugned communication bearing no. RE/457(VC)/PT-II/2019-20/80 dated 11.03.2020 whereby the petitioners had been informed that the Technical Evaluation Committee had rejected the bid of the petitioners upon examination of the Qualification Criteria of the bids received in response to a Request for Proposal dated 04.01.2020. By this writ petition, the petitioners have sought for setting aside of the impugned communication dated 11.03.2020 and also for a direction to allow the petitioners' bid for further consideration on merits.
2. The impugned communication is relatable to a Request for Proposal ('RFP', for short) published by the office of the respondent no. 3 i.e. the Additional Director General of Police (Communication), Assam [ADGP(C), Assam, for short] on 04.01.2020 for "Selection of a Page No.# 3/38 System Integrator for Supply, Installation, Testing and Commissioning of Video Conferencing Equipments up to Police Stations level in Assam".
3. It is the case of the petitioners that the petitioner no. 1 company (hereinafter referred to as 'the petitioner company', for easy reference) is involved in the business of design, development, manufacturing of RF and MW products and provides services in telecom and IT infrastructure including video conferencing and the petitioner no. 2 is the authorized official of the petitioner no. 1 company. As under the RFP submission of bid was permitted to be filed by a Consortium it intended to participate in the competitive bidding process initiated by the said RFP as a Consortium with the petitioner company as the Prime Bidder and one M/s Millennium Automation & Systems Ltd. as the Consortium partner and accordingly, it obtained the bidding document.
4. As per the original RFP published on 04.01.2020, the date of issuance of RFP was started from 07.01.2020 and the last date for submission of queries for clarification to be sent through e-mail was 23.01.2020. The said RFP had also mentioned that a Pre-Bid Meeting would be held on 27.01.2020. The last date and time for submission of bid including its hard copy was up to 3-00 p.m., 13.02.2020.
5. The RFP document had laid down certain Qualification Criteria. According to the petitioners company, Clause-3.II of Qualification Criteria is of import as it mentioned about experience of similar assignments. When the RFP was published on 04.01.2020, the Qualification Criteria mentioned in Clause 3.II with regard to experience of similar nature were as follows : - (a) the Bidder/Prime Bidder in case of Consortium should have executed atleast two projects on Video Conferencing of similar nature in the Government Department (Centre, State, PSU, Public Sector Banks) in last 5 (five) years; and (b) the Bidder/Prime Bidder in case of Consortium should have executed atleast one project on Video Conferencing of similar nature in the Government Department (Centre, State, PSU, Public Sector Banks) in last 5 (five) years covering minimum 50 full HD Video Conferencing end points.
6. It was further mentioned in the RFP that the bidder as supporting evidence had to Page No.# 4/38 provide completion certificates or relevant work orders from competent authority listing type of services offered. In the RFP, Form-1 had provided for a Compliance Sheet for Pre- Qualification Format wherein it was stipulated that the Pre-Qualification Proposal should comprise of the basic requirements provided therein and the documents mentioned in the compliance sheet along with Format-1 needed to be a part of the Pre-Qualification Proposal.
7. The Pre-Bid Meeting was held with the participation of the intending bidders on 27.01.2020, as scheduled, wherein a number of queries were raised and discussed. A meeting of the Technical Evaluation Committee in connection with the RFP dated 04.01.2020 was thereafter convened and the said Technical Evaluation Committee after discussion on the queries raised in the Pre-Bid Meeting held on 27.01.2020, recommended certain amendments in the original RFP dated 04.01.2020, more particularly, in respect of Clause 3 :
Qualification Criteria (II. Experience of similar assignments); Clause 4.15.3. Technical Score (B. Relevant past experience); and Clause 9.1. Form-1 : Compliance sheet for Pre- Qualification format (Sr. No. 15 : Experience of similar assignments), for which a Corrigendum came to be published on 03.02.2020 and the same are issues about which the present adjudication is connected.
8. Thereafter, the office of the respondent no. 3 by a notice dated 18.02.2020 had extended the last date of submission of bids up to 5-00 p.m., 24.02.2020 and the time and date of opening of the bids was mentioned as 11-00 a.m. on 25.02.2020. The petitioner company along with its Consortium partner, M/s Millennium Automation & Systems Limited participated in the said competitive bidding process as a Consortium with the petitioner company as the Prime Bidder, considering themselves to be eligible, experienced and qualified in terms of the RFP dated 04.01.2020 and the Corrigendum dated 03.02.2020 by submitting its on-line bid on 24.02.2020.
9. The technical bids of the respective bidders were opened on 25.02.2020. While the petitioner company was waiting and expecting for a positive outcome of its bid the impugned communication dated 11.03.2020 was received from the office of the ADGP(C), Assam through e-mail intimating that the Technical Evaluation Committee had rejected its bid for the following reason :-
Page No.# 5/38 "As per RFP clause, the prime bidder shall have past experience of implementation of atleast one project in VC. The order issued upto 31-03-2019 shall be considered for past experience as stated in the RFP clause 9.3 Form 2 and clause 9.5 Form 2B. The prime bidder M/s Vedang Radio submitted one order copy as past experience. On scrutiny, it was found that the order was received through GeM for supply of one VC point only, on 13-02-2020. Thus the bidder did not comply to RFP pre-qualification clause in respect of past experience and hence found not qualified."
10. Heard Mr. U.K. Nair, learned Senior Counsel for the petitioners. Also heard Mr. G. Pegu, learned Junior Government Advocate, Assam appearing for the respondent nos. 1 to 4 and Mr. D. Baruah, learned counsel for the respondent no. 5.
11. Mr. Nair, learned Senior Counsel has submitted that it is the case of the petitioner company that it submitted duly filled-in bid document along with all the relevant documents which were asked to be submitted along with the bid in terms of the RFP dated 04.01.2020, as amended. Amongst the documents so submitted, the petitioner company enclosed one purchase order dated 13.02.2020 as a proof of performing a project in video conferencing which was stipulated in the Pre-Qualification Criteria in the RFP, as amended, and an installation certificate in relation thereto, showing the date of execution of the said assignment as 15.02.2020.
11.1. The primary ground of rejection of its bid is non-fulfilment of the criteria regarding past experience of the Prime Bidder with respect of implementation of at least one project in Video Conferencing. The tendering authority had found fault with the document submitted by the petitioner company as the Prime Bidder in respect of its past experience with the observation that the petitioner company was not found qualified in respect of its past experience in implementing at least one project in Video Conferencing prior to 31.03.2019.
11.2. By referring to (a) Clause 9.1. Form-1 : Compliance Sheet for Pre-Qualification Format;
(b) Clause 9.3. Form-2 : Compliance Sheet for Technical-Qualification Proposal; and (c) Page No.# 6/38 Clause 9.5. Form-2B : Relevant Past Experience, it has been contended that while Form-1 pertains to the stage of examination of Pre-Qualification Criteria, Fprm-2 and Form-2B were required for examination and evaluation of the Technical Qualification Proposal of the bidders. At the stage of examination of Pre-Qualification Criteria, the tendering authority was required to scrutinize the documents which were asked to be submitted by the bidders in support of their Pre-Qualification Proposal and as per Form-1, as many as 15 (fifteen) nos. of documents were required to be submitted by a bidder and at the stage of Pre- Qualification, the question of evaluation of Clause 9.3. Form-2 and Clause 9.5. Form-2B as well as the documents submitted in support of the Technical Qualification Proposal was not required to be gone into. But the tendering authority while examining the Pre-Qualification Proposal of the petitioner company's Consortium bid, had gone a step ahead by evaluating the Technical-Qualification Proposal of the petitioner company's Consortium bid.
11.3. It is the further contention that with the issuance of the Corrigendum the criteria regarding experience of executing project on Video Conferencing as well as the nature of such project had been vastly changed. The petitioner company claims to have fulfilled such criteria regarding experience. As the last date of bid submission was 24.02.2020 and the petitioner company as the Prime Bidder in the Consortium had the experience of executing one project on Video Conferencing prior to the last date of submission, the decision to disqualify its bid vide the impugned communication dated 11.03.2020 is unjustified and arbitrary.
11.4. Mr. Nair had submitted that when the aforesaid facts were brought to the notice of the tendering authority by the petitioner company through its representation dated 12.03.2020, the tendering authority responded by a communication dated 18.03.2020. The tendering authority had misdirected itself to hold that as per the Pre-Qualification Criteria stated in Clause 3 and Clause 9.1. Form-1 of the RFP, the Prime Bidder shall have past experience of implementation of at least one project in Video Conferencing prior to 31.03.2019 but the petitioner company as the Prime Bidder had submitted an order copy dated 13.02.2020 which did not comply with the Pre-Qualification Clause in respect of the past experience mentioned in the RFP and the experience of the petitioner company as the Prime Bidder did not meet the requisite qualification criteria as per the RFP.
Page No.# 7/38 11.5. It is also the contention of the petitioners that the petitioner company's bid fulfilled each of the criteria prescribed in the RFP, as amended, and despite such fulfilment, its bid had been arbitrarily and unjustifiably rejected. But, at the same time, the defective bid of the respondent no. 5 has been found to be responsive at the pre-Qualification stage in spite of the fact that the respondent no. 5 did not fulfil a mandatory condition stipulated in Clause 12 of the Compliance Sheet for Pre-Qualification of the RFP by not enclosing its trade licence.
12. Mr. Pegu, learned State counsel appearing for the State respondents has submitted that Video Conferencing was not included in the field of business of the petitioner company prior to the RFP dated 04.01.2020. The supply order submitted by the petitioner company was of 13.02.2020, that too, only for a single end point Video Conferencing installation for an amount of Rs. 5,00,000/-. Even though the petitioner company submitted the supply order dated 13.02.2020 but it also submitted a letter dated 14.02.2020 to omit the cut-off date of 31.03.2019 with regard to past experience. The said request was again made vide another request letter dated 18.02.2020 which goes to show that the petitioner company was conscious of the fact that supply order dated 13.02.2020 which task it had completed on 15.02.2020, would not be sufficient towards past experience.
12.1. He has further submitted that the RFP has envisaged a two-stage bidding process - one was for the Qualification and Technical Bid and the other for the Commercial Bid. The terms and conditions stated in the Qualification and Technical Bid needed to be considered together for both pre-qualification criteria as well as for technical evaluation. Therefore, only the work orders issued up to 31.03.2019 were required to be considered towards relevant past experience, as stated in Form 2 and Form 2B in respect of qualification criteria for necessary technical evaluation. As the documents submitted with the petitioner company's Consortium bid did not comply with the pre-qualification criteria laid down in the RFP which was a mandatory clause, the bid did not qualify for technical evaluation and was rejected. By referring to the stand taken in the pleadings in the affidavit-in-opposition filed by the respondent no. 4., he has submitted that such disqualification could not have happened in case the RFP comprised of a three-stage bidding system - pre-qualification bid; technical bid Page No.# 8/38 and commercial bid - with different and separate terms and conditions in respect of all the three bids.
12.2. It has been submitted by him that the Technical Evaluation Committee comprised of highly qualified resource professionals who were experts in their respective fields, apart from high level officials in the department for evaluation of the bids and the Committee only after having gone through the terms and conditions of the RFP, had rejected the bid of the petitioners. Thus, no interference is called for in the present case.
13. By referring to the various terms and conditions mentioned in the RFP, Mr. Baruah, learned counsel for the respondent no. 5 has submitted that a Pre-Bid Meeting was held on 27.01.2020 wherein the petitioner company had also participated. Extensive discussion took place between the intending bidders and the tendering authority with regard to the terms and conditions in the original RFP dated 04.01.2020 and by taking into consideration the various points raised by the intending bidders and the queries received from other stakeholders, the Technical Evaluation Committee had recorded its recommendations on a number of points and recommended for issuance of a Corrigendum. Accordingly, a Corrigendum was published on 03.02.2020 wherein certain clauses of the original RFP came to be amended.
13.1. The essential conditions as regards past experience prescribed in 9.3. Form-2 and 9.5. Form-2B had not been amended. As such, each of the bidders had to fulfill such eligibility criteria prescribed therein, more particularly, in respect of the past qualification prior to 31.03.2019 as per the RFP r/w the Corrigendum. It is further submitted by him that the petitioner company was well aware about the amended clauses in the RFP published vide the Corrigendum on 03.02.2020 and being conscious of the fact that the petitioner company as the Prime Bidder did not fulfill the criteria regarding past experience, had represented before the State respondent authorities by way of a number of representations wherein it requested to omit the Clause 9.3. Form-2 and Clause 9.5. Form-2B wherein it was mentioned that the bidders towards relevant past experience had to submit orders issued only up to 31.03.2019.
Page No.# 9/38 13.2. From a look at the contents of the representations, he submits, it is very much evident that the petitioner company had impliedly acknowledged the fact that it did not fulfil the relevant experience criteria and being conscious of the said fact, they had represented to omit the clauses which were very much part of the amended RFP and to accept any supply order executed within the last 5 years from the Government department. Thus, there is suppression of material fact on the part of the petitioners as they had not disclosed the fact that they submitted the representations to omit the clause regarding past experience prior to 31.03.2019 after the Corrigendum dated 03.02.2020 was issued. He has submitted that the petitioner company had submitted its bid thereafter without challenging the clauses in the RFP which, according to it, are offending and prejudicial to the responsiveness of their bid. Now, after having participated in the competitive bidding process without challenging those clauses, the petitioner company is precluded from challenging the rejection of its bid and demanding to allow consideration of its bid on merits.
13.3. What terms and conditions are to be incorporated in the tender document is within the domain of the tendering authority and the experts involved in the process of preparation of the tender document keeping in view of their requirements and as such, he submits, the Court in exercise of its discretionary jurisdiction of judicial review under Article 226 of the Constitution of India is not required to enter into such arena. He has, thus, submitted that the petitioner company has failed to identify any valid cause against the rejection of its bid. In such view of the matter, the instant writ petition is liable for rejection.
13.4. In so far as the allegation of the petitioners made against the respondent no. 5 is concerned, he has submitted that there was no violation of any condition with regard to the Compliance Sheet for Pre-Qualification of the RFP on the part of the respondent no. 5 with regard to trade licence. The document as per Serial no. 12 of Clause 9.1. Form-1 required the Bidder/Prime Bidder in case of Consortium to submit a trade licence/valid certificate. He submits that the said requirement has to be read conjointly with Clause 4.24 of the RFP which required the successful Bidder/Prime Bidder in case of a Consortium to set up an office in Guwahati within 15 (fifteen) days from the date of signing the contract agreement. In compliance of the said criterion for Pre-Qualification, the respondent no. 5 had submitted its certificate of incorporation along with the technical bid which was sufficient, as the Page No.# 10/38 respondent no. 5 is a company not having its registered office within the State of Assam. A meaningful reading of the conditions in the RFP goes to show that it is only after a Bidder/Prime Bidder in case of a Consortium becomes successful it has to set up an office in Guwahati and to obtain a trade licence from the Municipal Corporation to run the business in Guwahati. He submits that, therefore, the allegation made against the respondent no. 5 is misconceived and its arraignment has been made unjustifiably to project a picture of discriminatory treatment which is not in existence.
13.5. He has further submitted that the petitioner company submitted its bid as a Consortium with the petitioner company as the Prime Bidder and another company as its Consortium member. But while preferring the present writ petition, both the members of the Consortium have not joined as petitioners. It is only the petitioner company who has challenged the rejection of the bid of the Consortium. With the other member of the Consortium not a party before this Court, he submits, the present petition is not maintainable.
13.6. It is further submitted by him that the bid of the petitioner company's Consortium was rejected at the stage of technical evaluation where the bid of the respondent no. 5 and two other bidders are found to be technically qualified. But the petitioner has chosen to implead only the respondent no. 5, that is, only one of the 3 (three) remaining bidders whose bids are found technically responsive. Due to non-impleadment of the other two technically responsive bidders as party respondents in the present writ petition, the writ petition is also not sustainable on that count.
13.7. In support of his submissions, Mr. Baruah has relied on the decisions of the Hon'ble Supreme Court of India in Raunaq International Limited vs. I.V.R. Construction Limited and others [(1999) 1 SCC 492]; the Bharat Coking Coal Limited and others vs. AMR Dev Prabha and others (MANU/SC/0317/2020); Central Coalfields Limited vs. SLL-SML (Joint Venture Consortium) [(2016) 8 SCC 622]; Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation [(2016) 16 SCC 818] and Civil Appeal No. 4107/2020 [Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs. New J.K. Roadways, Fleet Owners and Transport Contractors and others], decided on 18.12.2020.
Page No.# 11/38 13.8. The learned counsel for the parties have also referred to the Manual for Procurement of Works 2019 published by the Ministry of Finance, Department of Expenditure, Government of India in respect of setting the pre-qualification criteria, reference about which would be made hereinunder at an appropriate stage.
14. Replying to the submissions advanced by the respondents, the learned Senior Counsel for the petitioners has briefly reiterated his submissions already noted above. He has further submitted that the respondent no. 5 has been impleaded only to highlight the fact that adherence to the terms and conditions to the bid document was not made strictly in respect of the respondent no. 5 while going beyond the terms and conditions of the RFP, as amended, in respect of the bid of the petitioner company's Consortium. For the said reason, there is no prayer in the writ petition for rejection of the bid of the respondent no. 5, he submits. In so far the representations are concerned, he has submitted that those were in respect of Clause 9.3 and Clause 9.5 which are not related to the Pre-Qualification Criteria. He has submitted that with regard to its assertion regarding compliance of Clause 9.3. Form- 2 and Clause 9.5. Form-2B the petitioner company by way of its communication dated 12.03.2020 had already brought to the notice of the ADGP(C), Assam to the fact that the Consortium's bid had the necessary documentation about execution of many projects on Video Conferencing including order copies about implementation of such projects of more than 50 end points.
15. I have duly considered the submissions advanced by the learned counsel for the parties and also perused the materials brought on record by the parties through their respective pleadings. I have also considered the decisions cited by the learned counsel for the parties in support of their contentions.
16. The RFP being RFP no. RE/457(VC)/2019-20/44 dated 04.01.2020, was published for "Selection of a System Integrator for Supply, Installation, Testing and Commissioning of Video Conferencing Equipments up to Police Stations level in Assam" by the office of the ADGP(C), Assam.
Page No.# 12/38
17. An overview of the working of the work has been highlighted in the Introduction part of the RFP. The Government of Assam has launched MOITRI Scheme (Mission for Overall Improvement of Thana for Responsive Image) with the aim to implement a Mission Mode Thana based system reform programme to ensure SMART policing for enhancing efficiency and providing citizen friendly services while maintaining high degree of transparency in the policing system. As a part of MOITRI Scheme, the Government of Assam has envisaged to set up Video Conferencing Facility at Police Stations, SDPO office, District HQ, Range HQ and Police Organizations in Guwahati along with CMO, Home and AP HQ. Installation of the proposed state-of-the-art Video Conferencing mechanism for every police station and SDPO office will enable the District and State administration to remain in visual contact with OCs, CIs and SDPOs as and when required minimizing the physical movement. The RFP proposed to implement Video Conferencing system at 414 locations in one phase and to provide 95 nos. of Video IP phones and 686 nos. of IP phones at 480 locations.
18. The RFP in Clause 2.2 has further highlighted the Project Objectives as under :
2.2. Project Objectives 2.2.1. Supply, Installation, Testing and Commissioning of Video Conferencing System with comprehensive maintenance for a period of 8 (eight) years from the date of acceptance of the network (CAPEX for 3 years and OPEX for 5 years). 2.2.2.VC equipments to be installed at PS, SDPO office, District HQ, Range HQ, Police Organisations at Guwahati, CS, CMO offices.
2.2.3.It is proposed to set-up End point Video conferencing system bundled with HD Camera, Microphone, remote control with automatic tracking, LED TV 43"/70" at all other VC points at 480 locations.
2.2.4.The Central Media Control Unit will be installed at APRO HQ along with required network & security infrastructure. Initially MCU will have capacity of video conferencing upto 25 concurrent call at a time an 200+200 ports on listening mode with scalability. MCU will be based on open standard protocol having interoperability with existing VC network provided by NIC in the state. 2.2.5. The VC network will be controlled by a Central Server with adequate storage.
Page No.# 13/38 2.2.6.IP telephony at all 480 locations (video IP for Senior officers level). 2.2.7. The entire hardware & software requirement will be procured from the System Integrator.
19. As per the disclaimer to the RFP document, the ADGP(C), Assam has reserved the right to change/modify/amend any or all of the provisions of the RFP document without any reason. Any such change is to be communicated to the bidders by post/e-mail or on the concerned website. Clause 4.6.1 of the RFP document has stated that amendments, if any, shall be made available on the website as provided in the RFP data sheet. It shall be the responsibility of the bidders to amend their proposals incorporating the amendments so communicated through the website. The ADGP(C), Assam shall not be responsible for any oversight or negligence on the part of the bidders on the amendments to the terms and conditions of the RFP document and notified through the website. Clause 4.6.4 of the RFP document has further mentioned that at any time prior to the last date for receipt of bids, the ADGP(C), Assam may, for any reason, whether at his own initiative or in response to a clarification requested by a prospective bidder, modify the RFP document by a Corrigendum. Clause 4.6.5 of the RFP document has mentioned that the Corrigendum, if any, and clarifications to the queries from all bidders would be posted on the website as given in the RFP data sheet and no separate communication either in writing or through e-mail would be made to any of the participants. It has been specifically made clear in Clause 4.6.6 of the RFP document that any such Corrigendum shall be deemed to be incorporated into the RFP.
20. In Clause 3 of the RFP under the head - Qualification Criteria, it is mentioned that the invitation for bids is open to all entities registered in India who fulfil the Pre-Qualification criteria specified therein. Submission of bid is permitted for a Consortium also and as per Clause 3.1 : Qualification Criteria (Organizational Strength/Capability), a maximum of 3 (three) members including Prime Bidder are allowed in case of Consortium. It is specifically stipulated that in case of a Consortium, the responsibility of successful execution of the entire project would be that of the defined Prime Bidder.
21. In the RFP, a Pre-Bid Meeting was scheduled to be held on 27.01.2020 and it was Page No.# 14/38 accordingly held. Prior to the said Pre-Bid Meeting, a Technical Evaluation Committee in respect of the RFP dated 04.01.2020 was constituted vide an order dated 24.01.2020. In the said Pre-Bid Meeting, a number of prospective bidders including the petitioner company, were present and a number of points were raised by the participants. A meeting of the Technical Evaluation Committee was, thereafter, held on 30.01.2020 wherein it discussed the points raised by the prospective bidders and the queries received from various Original Equipment Manufacturers (OEMs) and System Integrators. After discussion, the Technical Evaluation Committee was of the opinion that there was a need for issuance of a Corrigendum in respect of various technical points and to attract more OEMs and System Integrators. Accordingly, the Technical Evaluation Committee recommended amendments on a number of points in the RFP and for issuance of a Corrigendum. Thereafter, the Corrigendum came to be issued on 03.02.2020 making amendments to various clauses in the original RFP.
22. By a notice dated 18.02.2020 of the ADGP(C), Assam the last date of submission of bids was extended and the date of opening of bids was also notified. As per the said notice, the last date and time of submission of bids was up to 5-00 p.m., 24.02.2020 and the bids were to be opened at 11-00 a.m., 25.02.2020. It is submitted by Mr. Pegu, learned State counsel for the respondent authorities that a total of 5 (five) numbers of bids including that of the petitioner company's Consortium, were received in response to the RFP, as amended.
23. It may be iterated that Clause 3 of the RFP document has laid down the Qualification Criteria. With the issuance of the Corrigendum dated 03.02.2020, a number of changes/modifications came to be made in the Qualification Criteria. Since as per Clause 4.6.6 of the RFP document, any such Corrigendum shall be deemed to be incorporated into the RFP document, it is appropriate to extract the Clause 3 : Qualifying Criteria, as modified by the Corrigendum, in its entirety hereunder :-
3. Qualification Criteria The invitation for bids is open to all entities registered in India who fulfill prequalification criteria as specified below :
Page No.# 15/38 Qualification Criteria I Organizational Strength/Capability Supporting evidence to be provided a. The company/firm should be operational at least Valid Registration for the last 3 financial years (FY 16-17, FY 17-18 & Certificate FY 18-19).
b. The net worth of the Bidder/Prime Bidder in case CA certificate required of Consortium should be positive for the last 2 Financial Years (FY 17-18 & FY 18-19) and for other members of the Consortium the net worth for the financial year 2018-19 should be positive. c. In case of a Consortium, a MOU/Letter of MOU/Letter of Association amongst Consortium members must Association amongst be furnished with the Technical bid along with Consortium members agreement between Consortium members along with the roles and defining their roles and responsibilities for the responsibilities of each project. of the members.
For Consortium members:
Work orders/Contract Also, in case of a Consortium, the responsibility with scope of work for for successful execution of the entire project will relevant experience vis- be that of the defined Prime Bidder. à-vis their roles and responsibilities as stated in the MOU.
Work In case of Consortium, a maximum of 3 members orders/Certificates on including prime bidder are allowed, A member installation of VC/IT cannot be a part of more than one Consortium. projects by the members of the Consortium.
The Consortium members should have relevant Page No.# 16/38 experience of executing VC/IT related projects in last 3 (three) years.
d. The Bidder/Prime Bidder in case of a Consortium Audited Report/CA should have an average annual turnover of INR certified copy 35 Crores over last three Financial Years (FY 16-
17, FY 17-18 & FY 18-19).
e. The Bidder/Prime Bidder and Consortium An undertaking in the members (in case of a Consortium) should not be shape of Affidavit, to currently blacklisted/ineligible to participate for this effect, signed by bid due to corrupt/fraudulent or any other authorized signatory, unethical business practices. has to be submitted.
f. The Bidder/Prime Bidder and Consortium Copy required members (in Case of a Consortium) should have valid GST registration.
g. The Bidder/Prime bidder in case of Consortium, Copy of valid ISO 9000 must have a certification of ISO 9000 family Certificate or family/other widely accepted International other widely accepted Certification related to quality services. International Certification related to quality services.
h. The Bidder/Prime Bidder in case of Consortium Trade License/Valid
should have valid Trade license. Certificate
i. The OEM of Video Conferencing system selected Supporting evidence by the Bidder shall have the following :
i) Deleted
ii) The OEM should have a Technical Assistance Centre and Spare Depot in India.
iii)The OEM shall not have been blacklisted/debarred to participate in any Govt./PSU as on the date of bidding.
Undertaking should be provided by the OEM.
iv)The OEM should have installed/supplied Page No.# 17/38 Video Conferencing of similar nature through any of their System Integrator at least one project in Government Deptt. (Centre, State, PSU, Public Sector Banks) in last 5(five) years covering minimum 50 HD Video Conferencing end points.
j. OEM Authorization: Supporting evidence The bidder must attach Manufacturer's Authorization Certificate & Back-to-back letter from OEMs for providing Comprehensive Annual Maintenance Support for the supplied equipments covered under this RFP.
Both the bidder and his OEM should commit full professional services support and resources for the successful completion of the project. A documentary proof to the above effect signed by both the bidder and his OEM must be submitted along with the bid inclusive of the following:-
"Confirmed that the Equipment being quoted for the project in the RFP should not be declared as End of Sale/End of Support on the date of submission of the bid. Service/Support including spares, patches etc. for the quoted products shall be available for the complete duration of the project or 5 years whichever is higher from the date submission of bid."
II Experience of similar assignments. Supporting evidence a. The Bidder/Prime Bidder in case of Consortium Completion certificates should have executed atleast two projects on or relevant work orders video Conferencing or one project by Prime to be provided from bidder and another project by one Consortium competent authority member in the Government Deptt (Centre, State, listing type of services Page No.# 18/38 PSU, Public Sector Banks) in last 5(five) years. offered.
b. The Bidder/any Consortium member in case of Consortium should have executed atleast one project on Video Conferencing in the Government Deptt (Centre, State, PSU, Public sector banks) in last 5(five) years covering minimum 50 HD Video Conferencing end points.
24. As per Clause 9 : Proposal Formats, the bidders are required to submit the following formats for their selection under the RFP :-
(1) Form-1 : Compliance Sheet for Pre-Qualification Format. (2) Form-1A : Covering Letter on bidder's letterhead.
(3) Form-2 : Compliance Sheet for Technical - Qualification Proposal.
(4) Form-2A : Bidder Profile. (5) Form-2B : Relevant Past Experience. (6) Form-2C : Approach & Methodology and VC Solution. (7) Form-2D : Demonstration on Proof of Concept. (8) Form-2E : Certifications of the Bidder. (9) Form-3 : Commercial Proposal Cost Break Up.
25. The RFP document also contains the prescribed formats, as indicated in Clause 9 thereof. Clause 9.1 has provided for Form-1 as a Compliance Sheet for Pre-Qualification Format. Since by the issuance of the Corrigendum dated 03.02.2020, few changes/modifications were also made in Form-1 : Compliance Sheet for Pre-Qualification Format, it appears necessary to extract the Clause 9.1 Form-1 : Compliance Sheet for Pre-
Qualification Format, as modified by the Corrigendum, in its entirety hereunder :-
9.1 Form- 1 : Compliance Sheet for Pre-Qualification Format (The Pre-Qualification Proposal should comprise of the following basic requirements.
The documents mentioned in this compliance sheet along with this form, needs to be a Page No.# 19/38 part of the Pre-Qualification proposal) RFP Reference No. RE/457(VC)/2019/ dtd 07-10-2020 Sl Specific Requirement Documents Provided Ref & no Required (Yes/No) Page no.
. in the
proposal
1. RFP Document fees Rs. 20,000, should
be paid online
2. Special Power of Copy of Board
Attorney/Board Resolution Resolution/Power
of Attorney in the
name of the
Authorized
Signatory (in the
form of Notarized
Affidavit)
3. Bid Covering Letter As per Form 1A
4. EMD Rs. 70,00,000/-
(Rupees Seventy
Lacs) only as Online
payment
5. The company/firm should be Valid Registration
operational at least for the last 3 Certificate
financial years (FY 16-17, FY 17-
18 & FY 18-19).
6. The net worth of the CA certificate
Bidder/Prime bidder in case of required
consortium partners should be
positive for the last 2 financial
years (FY 17-18 & FY 18-19) and
for other members of the
Page No.# 20/38
Consortium the net worth for
the financial year 2018-19
should be positive.
7. In case of a Consortium, a MOU/Letter of
MOU/Letter of Association Association
amongst Consortium members amongst
must be furnished with the Consortium
Technical bid along with members along with
agreement between Consortium the roles and
members defining their roles responsibilities of
and responsibilities for the each of the
project. members.
Also, in case of a Consortium, For Consortium
the responsibility for successful members:
execution of the entire project Work
will be that of the defined prime orders/Contract
bidder. with scope of work
for relevant
experience vis-a-vis
their roles and
In case of Consortium, a responsibilities as
maximum of 3 members stated in the MOU.
including prime bidder are
allowed. A member cannot be a
part of more than one
Consortium.
The Consortium members
should have relevant experience
of executing VC/IT related
projects in last 3(three) years.
Page No.# 21/38
8. The Bidder/Prime Bidder in Audited Report/CA
case of a Consortium should certified copy
have an average annual
turnover of INR 35 Crores over
last three Financial years (FY
16-17, FY 17-18 & FY 18-19)
9. The Bidder/Prime Bidder and An undertaking in
consortium members (in Case the shape of
of a Consortium) should not be Affidavit, to this
currently blacklisted/ineligible effect, signed by
to participate for bid due to authorized
corrupt/fraudulent or any other signatory, has to be
unethical business practices. submitted.
10 The Bidder/Prime Bidder and Copy required
. consortium members (in Case
of a Consortium) should have
valid GST registration.
11. The Bidder/Prime Bidder in Copy of valid ISO
Case of Consortium, must have 9000 family
a certification of ISO 9000 Certificate or other
family/other widely accepted widely accepted
International Certification International
related to quality of services. Certification related
to quality of
services.
12 The Bidder/Prime Bidder in Trade License/Valid
. case of Consortium should have Certificate
valid Trade license.
13 The OEM of Video Conferencing Supporting evidence
. system selected by the Bidder
shall have the following:
i) Deleted
Page No.# 22/38
ii)The OEM should have a
Technical Assistance Centre and
Spare Depot in India
iii) The OEM shall not have
been blacklisted/debarred to
participate in any Govt./PSU as
on the date of bidding.
Undertaking should be provided
by the OEM.
iv)The OEM should have
installed/supplied Video
Conferencing through any of
their System Integrator at least
one project in Government
Deptt. (Centre, State, PSU,
Public sector banks) in last
5(five) years covering minimum
50 HD Video Conferencing end
points.
14 OEM Authorization :
. The bidder must attach
Manufactures Authorization
Certificate & Back-to-back
support letter from OEMs for
providing Comprehensive
Annual Maintenance Support
for the supplied equipments
covered under this RFP. Both
the bidder and his OEM should
commit full professional
services support and resources
for the successful completion of
Page No.# 23/38
the project. A documentary
proof to the above effect signed
by the bidder and his OEM
must be submitted along with
the bid inclusive of the
following:-
"Confirmed that the Equipment
being quoted for the project in
the RFP should not be declared
as End of Sale/End of Support
on the date of submission of the
bid. Service/Support including
spares, patches etc. for the
quoted products shall be
available for the complete
duration of the project or 5
years whichever is higher from
the date of submission of bid."
15 Experience of similar Supporting evidence
. assignments.
The Bidder/Prime Bidder in Completion
case of Consortium should have certificates or
executed atleast two projects on relevant work
video Conferencing or one orders to be
project by Prime bidder and provided from
another project by one competent authority
Consortium member in the
Government Deptt (Centre,
State, PSU, Public Sector
Banks) in last 5(five) years.
The Bidder/any Consortium
Page No.# 24/38
member in case of Consortium
should have executed atleast
one project on Video
Conferencing in the
Government Deptt (Centre,
State, PSU, Public Sector
Banks) in last 5(five) years.
26. Clause 4 of the RFP contains the Instruction to Bidders (ITB). The bidders were required to submit their tenders on-line as per the date and time of submission stipulated therefor and the bidders were also required to submit a hard copy of their Qualification and Technical bid to the ADGP (C), Assam on or before the last date and time of bid submission mentioned in the RFP data sheet. In terms of Clause 4.10.2, the 'Qualification and Technical Proposal' was, inter alia, required to be accompanied with the following documents :-
b. Following list of documents shall be submitted as part of Qualification proposal :
i. Form-1 : Compliance sheet for Qualification Proposal. ii. Form- 1A : Covering Letter on bidder's letterhead. iii. MOU/Letter of Association amongst Consortium members along with the roles and responsibilities of each of the members.
iv. In case of consortium members, Work orders/Contract with scope of work for relevant experience vis-a-vis their roles and responsibilities as stated in the MOU. c. Following list of documents shall be submitted as part of Technical Proposal :
i. Form- 2 : Compliance Sheet for Technical Proposal
ii. Form-2A : Bidder Profile
iii. Form-2B : Relevant Past Experience
iv. Form-2C : Approach & Methodology and VC Solution
v. Form-2D : Demonstration on Proof of concept
vi. Form-2E : Certifications of the Bidder
27. The disqualification Clause 4.11 has, inter alia, mentioned that a bid would entail disqualification if the bidder has submitted a proposal which is not accompanied by required Page No.# 25/38 documentation or is non-responsive.
28. As per Clause 4.14 : Bid Evaluation, a Consultative Evaluation Committee (CEC) would evaluate the proposals submitted by bidders and for evaluation of proposals, a two-stage process, as explained in the RFP, would be adopted. From a perusal of the clauses of the RFP, it is evident that the RFP has envisaged a two-stage evaluation : (a) Technical Evaluation and (b) Commercial Proposal Evaluation. A bidder should get minimum 70% marks for qualifying for the Commercial Bid opening. The Commercial Bids of only those bidders who get minimum 70% qualifying marks in Technical Bid Evaluation, would be opened on-line on the prescribed date.
29. Clause 4.15.3, as amended, has outlined the criteria how the Technical Scores of the bidders would be calculated. They are as follows :-
A. Bidder Profile (Total marks = 150 marks)
1. The Bidder/Prime Bidder in case of a Consortium should have an average annual turnover of INR 35 Crores over last three Financial Years i.e. FY 2016-17, FY 2017-18, FY 2018-19;
2. The Bidder/Prime Bidder in case of a Consortium should have average annual current positive net worth for the last two Financial Years i.e. FY 2017-18 and FY 2018-19.
B. Relevant Past Experience (Total marks = 250)
1. The Bidder/Consortium Members in case of Consortium should have executed at least two projects on Video Conferencing in the Government Deptt (Centre, State, PSU, Public Sector Banks) in last 5 (five) years;
2. The Bidder/any Consortium Member in case of Consortium should have executed at least one project on Video Conferencing in the Government Deptt (Centre, State, PSU, Public Sector Banks) in last 5 (five) years covering minimum 50 full HD Video Conferencing end point;
3. The OEM should have installed/supplied Video Conferencing covering minimum 50 HD Video Conferencing through any of their System Integrator at least one project in Government Deptt (Centre, State, PSU, Public Sector Banks) in last 5 (five) years.
C. Approach & Methodology & VC Solution (Total marks = 300) Page No.# 26/38
1. Understating of Project Objectives, requirements, scope of work, work break down schedule, challenges likely to be encountered and Risk Mitigation Plan;
2. The extent to which the proposed solution meets all the requirements of all the scope of work.
D. Demonstration on Proof of Concept (PoC) (Total marks = 200)
1. Demonstration of VC System at 3 locations in Guwahati;
2. Demonstration of various application, GUI, time required to set up VC etc.;
3. Demonstration of two types of IP phone.
E. Certifications of the Prime Bidder (Total marks = 100)
1. Points for various certification standards obtained.
Against the afore-mentioned criteria, in the RFP document as modified by the Corrigendum, marks have been allotted for having achieved different standards/benchmarks. As cited in the table above, maximum marks of 150 have been earmarked for the criteria :- 'Bidder Profile'. For example, if a Bidder/Prime Bidder has an average annual turnover of more than 150 crores over the last three Financial Years i.e. FY 2016-17, FY 2017-18, FY 2018-19, such bidder would be given 100 marks and if the said Bidder/Prime Bidder in case of a Consortium has an average annual current positive net worth for the last two Financial Years i.e. FY 2017-18 and FY 2018-19 of Rs. 5 Crores or more, he would be given 50 marks, meaning thereby, such a Bidder/Prime Bidder in case of the Consortium would fetch the entire 150 marks earmarked for the criteria :- 'Bidder Profile'. It further mentions the supporting documents required for each of the above criteria on the basis of which marks would be given and the technical score would be arrived at. It is made specific that a bidder should get minimum 70% mark for qualifying for the Commercial Bid opening.
30. Clause 4.16 has provided for the evaluation of the commercial proposal. As per Clause 4.16.1, the Commercial Bids of bidders who get minimum 70% qualifying marks in Technical Bid Evaluation would be opened on-line. The technically qualified bidder who has submitted the lowest total project Commercial Proposal (CP), shall be designated as the L1 Bidder and shall be awarded a Commercial Score of 100. On the basis of the said Commercial Score of 100 of L1, the Commercial Scores for the other technically qualified bidders would be calculated using a formula stated therein.
Page No.# 27/38
31. Thereafter, final evaluation is to be done on 'Quality Cost Based Selection' method mentioned in Clause 4.17 with the Technical Score (TS) having a weightage of 70% and the Commercial Score (CS) having a weightage of 30%. Thereafter, an Evaluated Bid Score (B) would be calculated for each responsive bid using a formula stated therein, which, according to the tendering authority, permits a comprehensive assessment of the bid price and the technical merits of each bid and the Final Composite Score would be arrived at by multiplying 'B' with 100. The Bidder with the highest Final Composite Score i.e. Bid Score shall be declared as the Successful Bidder and shall be called for further process leading to the award of the contract.
32. It has been sought to be highlighted by the learned State counsel that while considering a proposal of the bidder the RFP document has envisaged examination of experience of executing works of similar nature prior to 31.03.2019 by such bidder, even at the stage of examining Pre-Qualification Criteria. It has, therefore, become also necessary to take into consideration 'Clause 9.3. Form- 2: Compliance Sheet for Technical Proposal' and 'Clause 9.5. Form-2B: Relevant Past Experience', which clauses also found mentioned in the impugned communication dated 11.03.2020.
33. To appreciate such contention, the contents of 'Clause 9.3 Form- 2: Compliance Sheet for Technical Proposal' and 'Clause 9.5 Form-2B: Relevant Past Experience' are extracted hereunder :-
9.3. Form - 2 : Compliance Sheet for Technical - Qualification Proposal [The Technical qualification proposal should comprise of the following basic requirements. The documents mentioned in this compliance sheet along with this form, needs to be a part of the Technical Qualification proposal] Bid Reference No. :
Sl Specific Requirement Documents Provided Ref &
no. Required (Yes/No) Page no.
Page No.# 28/38
in the
proposal
1. Bidder profile Form 2A along
· Sales turnover with extracts of
· Net worth audit report/CA
certificate
2. Relevant past experience Form 2B along
with work order
Orders issued upto 31-03-
2019 shall be provided
3. Approach & Methodology & Form 2C
Solution
4. Demonstration on Proof of Form 2D
Concept
5. Certifications of the Bidder Form 2E
(emphasis supplied in bold)
9.5. Form - 2B : Relevant Past Experience
[For all the below details, the supply orders issued as on 31/03/2019 need to be provided (issued to the responding bidder by the respective client)] [Bidders are required to provide details of relevant experiences in the format given below, highlighting experience of implementing similar projects.] Use separate sheet for each citation.
Sl. No. Particular Details
1. Project Serial number 1
2. Name of Project
3. Name of Client
4. Address of Client
5. Contact person Name & Mobile/Telephone of Client
6. Total Project Overall Value (INR)
7. Project Start Date
Page No.# 29/38
8. Project End Date
9. Project Team Size
10. Brief narrative description of project with specified roles for a consortium member
11. Project credentials as per the criteria
34. As already indicated hereinabove, Clause 4.15 has specified the manner how the Evaluation Committee would evaluate the Qualification and Technical Proposals on the basis of the technical evaluation criteria :-
Sl. no Criteria Max. Marks A. Bidder Profile 150 B. Relevant past experience 250 C. Approach & Methodology and VC Solution 300 D. Demonstration on Proof of Concept 200 E. Certification of the Bidder 100 Total 1000
35. A plain reading of the RFP document along with the Corrigendum, more particularly,
(a) Clause 9.1. Form-1 : Compliance Sheet for Pre-Qualification Format; (b) Clause 9.3. Form-2 : Compliance Sheet for Technical-Qualification Proposal; and (c) Clause 9.5. Form-2B : Relevant Past Experience, goes to show that the Pre-Qualification Proposal is distinctly separate from the Technical-Qualification Proposal. Clause 3 : Qualification Criteria has clearly prescribed that if an entity fulfils the Pre-Qualification Criteria specified therein which can be supported by submission of the documents mentioned therein the participation of such an entity in the competitive bidding process initiated by the RFP, as amended by the Corrigendum, is open. It is further evident from a conjoint reading of Clause 3 : Qualification Criteria and Clause 9.1. Form-1 : Compliance Sheet for Pre-Qualification Format. The Pre- Qualification Proposal is required to comprise few basic requirements. Clause 9.1. Form-1 :
Compliance Sheet for Pre-Qualification Format has enlisted the documents which are required to be part of the Pre-Qualification Proposal. Neither in Clause 3 nor in Clause 9.1 there is any indication to the effect that the Prime Bidder in case of a Consortium should have the experience of executing one project on Video Conferencing prior to 31.03.2019. It Page No.# 30/38 has, however, been laid down that the Prime Bidder in case of Consortium should have the experience of executing one project on Video Conferencing but there is no timeline stipulation. Thus, it is clear that the Prime Bidder in case of a Consortium should have the experience of executing at least one project on Video Conferencing at the time of submission of the bid for the Consortium.
36. With the issuance of the Corrigendum, the earlier stipulation, mentioned in the RFP dated 04.01.2020, regarding the Prime Bidder in case of Consortium to have the experience of executing at least one project on Video Conferencing of similar nature in Government Departments (Centre, State, PSU, Public Sector Banks) in last 5 (five) years covering minimum 50 full HD Video Conferencing end points had stood replaced by a new stipulation. As per the new stipulation, any Consortium Member in case of Consortium should have the experience of executing at least one project on Video Conferencing in Government Departments (Centre, state, PSU, Public sector banks) in last 5 (five) years covering minimum 50 HD Video Conferencing end points. As a result, it is not a stipulation anymore for the Prime Bidder to have the experience of executing at least one project on Video Conferencing of similar nature in Government Departments (Centre, State, PSU, Public Sector Banks) in last 5 (five) years covering minimum 50 full HD Video Conferencing end points. The amended Pre-Qualification Criterion of having the experience of executing atleast one project on Video Conferencing in Government Department (Centre, State, PSU, Public Sector Banks) in last 5 (five) years covering minimum 50 HD Video Conferencing end points can be met by any of the Consortium members. The impugned communication dated 11.03.2020 had recorded that the supply order dated 13.02.2020 which the petitioner company as the Prime Bidder had submitted in support of its experience was shown to be of one Video Conferencing end point only, and on that basis it was concluded that the bidder did not comply to the RFP Pre-Qualification Clause in respect of past experience. The impugned communication is silent as to whether the Consortium partner of the petitioner company had the experience of executing such project on Video Conferencing covering minimum 50 HD Video Conferencing end points or not.
37. The last date for submission of bids in the case in hand was 24.02.2020. After the Page No.# 31/38 issuance of the Corrigendum, the earlier condition for a Bidder or the Prime Bidder in case of a Consortium to have the experience of executing at least two projects on Video Conferencing of similar nature in the Government Department (Centre, State, PSU, Public Sector Banks) in the last 5 (five) years, has been modified. After modification, the Prime Bidder in case of a Consortium should have the experience of executing at least two projects on Video Conferencing or one project by the Prime Bidder and another project by one Consortium member. After the Corrigendum, it is not the requirement for the Prime Bidder in a Consortium anymore to have the experience of executing at least two projects on Video Conferencing of similar nature in Government Departments in the last 5 (five) year. As per the amended RFP, the said Pre-Qualification Criterion will be fulfilled if Prime Bidder in case of a Consortium has the experience of experience of executing one project on Video Conferencing and any Consortium member has the experience of executing another project on Video Conferencing with no timeline stipulation. The Corrigendum has also notably replaced the words 'Video Conferencing of similar nature' with only 'Video Conferencing' at the stage of Pre-Qualification. It is, thus, also not a condition for Pre-Qualification to have the experience of executing any work of similar nature. This Pre-Qualification criterion is albeit required to be satisfied prior to the last date of submission of the bids. Thus, it was not proper on the part of the tendering authority to disqualify the bid of the petitioner company's Consortium prior to the evaluation of the Technical-Qualification Proposal with the reasons cited. The experience of having executing works on Video Conferencing prior to 31.03.2019 would be countable only at the stage of evaluation of the Technical-Qualification Proposal but the same is not a requirement at the stage of examining the Pre-Qualification Proposals.
38. The above view is further fortified from a conjoint reading of Clause 4.15 :
Qualification and Technical Proposal Criteria & Evaluation; Clause 9.3. Form-2 : Compliance Sheet for Technical-Qualification Proposal and Clause 9.5. Form-2B : Relevant Past Experience. It is clearly decipherable from Clause 9.3. Form-2 : Compliance Sheet for Technical-Qualification Proposal that Clause 9.1. Form-1 : Compliance Sheet for Pre- Qualification Format is not a part of it whereas Clause 9.5. Form-2B : Relevant Past Experience is a part of it. It has been indicated in Clause 9.3. Form-2 : Compliance Sheet for Technical-Qualification Proposal clearly that the documents mentioned in the Compliance Page No.# 32/38 Sheet along with the form needed to be a part of the Technical-Qualification Proposal. It has been clearly accentuated that for the purpose of relevant past experience, only the orders issued up to 31.03.2019 are required to be provided in the form prescribed in Clause 9.5 Form-2B : Relevant Past Experience. A total of 250 marks out of the maximum marks of 1000 have been allotted for relevant past experience. Thus, it is clear that the supply order dated 13.02.2020 which the petitioner company had submitted in support of its experience, is relevant only for the purpose of the Pre-Qualification Proposal for examining its Pre- Qualification Criteria without bestowing any further significance to the date of the supply order and the same may not be countable at the time of evaluation of the Technical- Qualification Proposal of the Consortium's bid because of the stipulation of the period prior to 31.03.2019. In the above view of the matter and upon a plain and conjoint reading of the RFP document dated 04.01.2020 and the Corrigendum dated 03.02.2020, this Court is of the unhesitant view that the only conclusion that can be arrived at is that reference to and reliance upon Clause 9.3. Form-2 : Compliance Sheet for Technical-Qualification Proposal and Clause 9.5. Form-2B : Relevant Past Experience at the time of evaluation of Pre- Qualification Proposal of the petitioner company's Consortium bid is arbitrary, unjustified and irrelevant. As such, the disqualification of the petitioner company's Consortium bid on that count is found to be untenable and unsustainable.
39. At this stage, it is apt to refer to the decisions cited on behalf of the respondent no.
5. In Raunaq International Limited (supra), it has been observed that the award of a contract is essentially a commercial transaction and in arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. One such consideration is past experience of the bidder and whether the bidder has successfully completed similar work earlier. In a writ petition filed under Article 226 of the Constitution of India challenging award of a contract by a public authority or the State, the Court should not interfere in disputes between two rival tenderers unless it is satisfied that there is a substantial amount of public interest or the transaction is entered into mala fide. The Court should also be circumspect in passing interim orders. When an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding about the best offer. The Court should not substitute its own decision for the decision of an expert evaluation committee.
Page No.# 33/38 39.1. It has been observed in Central Coalfields Limited (supra) that the party issuing the tender (the employer) has the right to enforce the terms of the tender strictly. If a party approaches a Court for an order to restrain the employer from strict enforcement of the terms of the tender, the Court would decline to do so. The Courts shall not countenance interference with the decision of the employer at the behest of an unsuccessful bidder in respect of a technical or procedural violation. The decision in Jagdish Mandal vs. State of Orissa, (2007) 14 SCC 517, was referred to for the proposition that evaluating tenders and awarding contracts are essentially commercial functions and if the decisions relating to award of contract was bona fide and was in public interest, the Courts should not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer was made out. The power of judicial review is not to be exercised to protect private interest at the cost of public interest or to decide contractual dispute. Whether a term of NIT is essential or not is a decision to be taken by the employer which should be respected and the Courts should not take over the decision making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-write the arrangement. It has reemphasized the well settled principle that where the power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden, which principle should also be followed in respect of bid documents.
39.2. In Galaxy Transport Agencies (supra), it has been reiterated by referring to the earlier decisions in Afcons Infrastructure Limited (supra), Bharat Coking Coal Limited (supra), Jagdish Mandal (supra) and Montecarlo Limited vs. NTPC Limited, (2016) 15 SCC 272 that the authority who has authored the tender document, is the best person to understand and appreciate its requirements and interpret its documents. The Constitutional Court must defer to the said understanding and appreciation of the tender document and if two interpretations are possible then the interpretation of the author must be respected. In the competitive commercial field the technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts in order to ensure objectivity. A bidder's expertise and technical capability and capacity are assessed by the experts. It has, at the same time, been emphasized that it does not mean that the tenders will escape scrutiny of judicial review.
Page No.# 34/38 Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the Court should follow the principle of restraint. Technical evaluation or comparison by the Court would be impermissible.
40. There is absolutely no second opinion with the principles that are deducible from the aforesaid decisions and this Court wholly subscribes to the same. The issue raised herein does not, however, pertain to award of a contract at the end of a competitive bidding process pursuant to a notice inviting tender. The issue raised by the petitioner company also does not relate to technical evaluation of the bids submitted by the bidders pursuant to the RFP dated 04.01.2020, as amended by the Corrigendum dated 03.02.2020. The issue raised by the petitioner company herein is limited to the Pre-Qualification Criteria laid down by the RFP dated 04.01.2020 and the Corrigendum dated 03.02.2020 and its disqualification by the impugned communication dated 11.03.2020 for the reasons cited therein, which is at a stage anterior to the stage of evaluation of the Technical-Qualification Proposals. It has been urged on behalf of the petitioners that the decision to disqualify the bid of the petitioner company is not in consonance with the terms of the RFP dated 04.01.2020 and the Corrigendum dated 03.02.2020 and by this writ petition, the petitioner has rather called for strict enforcement of the terms.
41. In respect of pre-qualification criteria, it has been laid down in the Manual for Procurement of Works 2019 that the pre-qualification criteria should be unrestrictive enough so as not to leave out even one capable bidder which otherwise can lead to higher prices of procurement/works/services. At the same time, the pre-qualification criteria should be restrictive enough so as not to allow even one incapable bidder and thus, vitiate fair competition for capable bidders to the detriment of the employer's objectives. It has observed that a misjudgement in either direction might be detrimental. While framing certain guidelines for the pre-qualification criteria, it has been emphasized that due consideration should be given in framing the criteria in order to have adequacy of competition and the criteria should be carefully decided for each procurement by asking the Page No.# 35/38 bidders to submit authenticated document in support of eligibility criteria.
42. The pre-qualification criteria for the bidders in a competitive bidding process are ordinarily laid down in order to ensure that a bidder has the capacity and the resources to execute the work successfully if awarded to him. In a competitive bidding process terms and conditions are set forth also at the pre-qualification stage in order to provide certainty in the process and to enable the tendering authority to filter out unqualified, ineligible and inexperienced bidders so as to provide a level playing field for the competent bidders.
43. From the discussion made above, this Court has found on a scrutiny of the RFP and the Corrigendum together that two interpretations are not possible in respect of the Pre- Qualification Criteria laid down therein. As only one interpretation is possible, the tendering authority has left with no discretion to it to interpret the same in any other manner. The basic requirement of Article 14 of the Constitution of India is fairness in action by the State or its instrumentalities and it is settled that non-arbitrariness in essence and substance is the heartbeat of fair play. The said principle is also applicable also in a competitive bidding process. While it is true that the scope of judicial review in the matter of awarding contract is limited it is also true that the State or its instrumentalities are to act reasonably, fairly and in public interest in a tender process and consequently, in awarding contract. These actions are amenable to the judicial review only to the extent for examining as to whether the State or its instrumentalities have acted validly for a discernible reason and not in an irrational manner by deviating from the standards laid down by themselves in the basic document like the tender document. It is settled that the question whether the impugned action is arbitrary or not is to be decided finally on the facts and circumstances of a given case and the basic and obvious test to apply is to find out whether there is any discernible principle emerging from the impugned action and if yes, whether it satisfied the test of reasonableness. It is also settled that where a particular mode is prescribed for doing an act and there is no impediment to follow the same, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable, is to be termed as arbitrary.
44. A decision in the matter of evaluation of bids is to be arrived at by taking into account Page No.# 36/38 all relevant considerations while steering clear of all irrelevant considerations not required to be taken cognizance of at a particular stage of evaluation, which in the case in hand is the stage of pre-qualification. It is also settled that a bidder who has participated in a competitive bidding process atleast has a right to equality and fair treatment in the matter of evaluation of competitive bid offered by him in response to a notice inviting tender in a transparent manner and free from any hidden agenda and in that respect, he is entitled to be treated in a fair, equal and non-discriminatory manner in the matter of evaluation of his bid. A bidder has an enforceable right to that limited extent before the Court and the Court can definitely examine the issue as to whether the petitioner has been treated unfairly or discriminated against. Upon consideration of the issue raised in its entirety in the case in hand this Court has found that the tendering authority while arriving at a impugned decision contained in the Communication dated 11.03.2020 had got itself swayed by irrelevant considerations, as have been discussed above, and as a result, the impugned decision making process had got vitiated.
45. As the issue raised in this petition is limited to the matter of disqualification of the petitioner company's Consortium bid with regard to its Pre-Qualification Proposal qua the prescription laid down in that regard in the RFP dated 04.01.2020 and the Corrigendum dated 03.02.2020 and the interpretation sought to be made with no challenge to the qualification and eligibility of the other bidders whose bids are found responsive at the stage of Pre-Qualification Proposal the contention raised as regards not impleading all of them is found not acceptable for dismissal of the writ petition. Further, no prejudice is likely to be caused to any of the other bidders because of the nature of challenge made herein. Since as per the RFP document itself the responsibility for successful execution of the project lies on the part of the Prime Bidder in case of a Consortium and the petitioner company is the Prime Bidder who has preferred this writ petition, non-joining of the other Consortium partner in this petition is found not a good enough ground for not entertaining the present writ petition. As the challenge here is limited about enforcement or deviation from the terms and conditions set forth in the RFP dated 04.01.2020 and the Corrigendum dated 03.02.2020 for the stage of Pre-Qualification only the contention advanced on behalf of the respondents of not challenging the clauses in the bid document does not merit credence.
Page No.# 37/38
46. In the light of the above discussion and determination, the impugned disqualification on the ground of deficiency in experience with reference to Clause 9.3. Form-2 and Clause 9.5. Form-2B for not having the experience of executing one project on Video Conferencing covering minimum 50 HD Video Conferencing end points prior to 31.03.2019 at the stage of evaluation of Pre-Qualification Criteria is found unsustainable in law and facts being demonstratively arbitrary, unjustified and unreasonable. As a consequence, the impugned communication dated 11.03.2020 put to challenge herein is set aside. As a corollary, the Pre-Qualification Proposal submitted by the Consortium with the petitioner company as the Prime Bidder is to be revisited by the tendering authority by taking into consideration the observations made above. It is, however, made clear that the present adjudication is confined only to the issue of disqualification of the petitioner company's Consortium bid on the ground cited in the impugned communication dated 11.03.2020 and in no other aspect. It is, thus, made clear that this Court has not observed anything on merit with regard to meeting the other Pre-Qualification Criteria by the petitioner company's Consortium bid in terms of the RFP dated 04.01.2020 and the Corrigendum dated 03.02.2020. Resultantly, it is observed that the bid of the petitioner company's Consortium shall have be taken for further consideration in the context made above. The Consultative Evaluation Committee (CEC) consisting of experts is definitely going to play the decisive role at the stages of evaluation of the Technical-Qualification Proposal and the Commercial Proposal. The bidders' expertise and technical capability and capacity are to be assessed by the experts having the domain knowledge with the objective standards already put in place. Being conscious of the limitation this Court has not made any effort to enter into that arena.
47. This Court on 18.03.2020 while entertaining the writ petition, had directed the respondents to maintain status quo in respect of the bidding process initiated by the RFP dated 04.01.2020 as on that date until further order. By recalling the said interim order dated 18.03.2020, it is observed, in view of the determination made above, that the competitive bidding process shall be proceeded hereinafter as per the terms and conditions of the RFP dated 04.01.2020 and the Corrigendum dated 03.02.2020 by abiding the directions given above and in accordance with law and the same shall be taken to its logical conclusion as expeditiously as possible.
Page No.# 38/38
48. The writ petition stands allowed to the extent indicated above. In the facts and circumstances of the case, there shall, however, be no order as to costs.
JUDGE omparing Assistant