Calcutta High Court (Appellete Side)
Meghdoot Ghosh vs The State Of West Bengal & Ors on 17 December, 2018
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W.P. No. 1172 (W) of 2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Meghdoot Ghosh
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Joy Saha, Sr. Advocate
Mr. Avishek Guha, Advocate
Ms. Rimi Aich, Advocate
For the State : Mr. Samrat Sen, Sr. Advocate
Ms. Amrita Panja Moulick
Hearing concluded on : December 11, 2018
Judgment on : December 17, 2018
DEBANGSU BASAK, J.:-
The petitioner has assailed the rejection of his technical
bid.
Learned Senior Advocate appearing for the petitioner has
submitted that, not only the rejection of the technical bid of
the petitioner was incorrect, but also, the tender evaluation
process was not in accordance with the terms and conditions
of the tender. The petitioner participated in the notice inviting
e-tender issued by the Irrigation and Waterways Directorate
for special repair of drainage channel of Nalipara at Barakar
under Asansol Municipal Corporation. The prequalification
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work credential requirement of the tender requires a
participant to have undertaken major item as described in
protection work (Type A) of the tender conditions of a value of
Rs. 38.23 lakhs for an individual and Rs. 76.45 lakhs for
consortium/ joint venture. According to him, the petitioner
undertook protection work (Type A) as described in the tender
conditions at least in two projects of value far in excess of
Rs. 38.23 lakhs. Learned Senior Advocate appearing for the
petitioner has referred to, the documents submitted by the
petitioner in the tender process. He has submitted that, the
authorities wrongfully and illegally did not take into
consideration at least three items of work in one of the
projects executed by the petitioner, and at least two items of
work in the other project. The non considered items of work by
themselves qualified the value prescribed in the tender
process, let alone the entirety of the value of the work
undertaken by the petitioner, in such projects. Therefore,
according to him, the rejection of the technical bid by the
authorities was incorrect.
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Referring to the general terms and conditions of the
tender process, he has submitted that, the tender conditions
prescribed the schedule of important dates of the e-tenders.
Under such schedule, the authorities are required to provide
clear four working days between the date of the opening of the
technical bid and the opening of the financial bid for disposal
of complaints and obtaining of decision from appellate
authority. In the present case, such schedule was not adhered
to. Non-adherence with such schedule caused immense
prejudice to the petitioner as the petitioner could not approach
the appellate authority to urge his complaints. He has drawn
the attention of the Court to the tender summary report
appearing at page 101 of the writ petition and has submitted
that, the technical bid was claimed to be opened on January
5, 2018 which was later updated on January 11, 2018. The
financial bid was opened on January 11, 2018 itself.
Therefore, four clear days were not provided between the
opening of the technical bid and the financial bid. In such
circumstances, the rejection of the technical bid of the
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petitioner should be held to be bad. The petitioner held to be
qualified in the tender process.
Learned Assistant Additional Advocate General appearing
for the State has submitted that, the technical bid of the
petitioner was evaluated in accordance with the tender
conditions. There are no infirmities or irregularities in such
evaluation process warranting an interference by a Writ Court.
He has relied upon 2016 Volume 16 Supreme Court Cases
page 818 (Afcons Infrastructure Limited v. Nagpur Metro
Rail Corporation Limited & Anr.) and has submitted that,
the Courts should be slow in interfering with the decision
making process in accepting or rejecting a bid. In the present
case, the decision making process does not suffer from any
mala fides. It has not been substantiated that, the decision
was intended to favour someone. It has also not been
substantiated that, the decision is arbitrary or irrational or
such that no responsible authority acting reasonably and in
accordance with law could have reached such a decision.
Learned Assistant Additional Advocate General has
referred to the terms and conditions of the e-tender, and
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submitted that, it is open to the employer to interpret the
tender conditions in a particular way. The Tender Evaluation
Committee had considered the documents submitted by the
petitioner and arrived at a finding that, the petitioner was not
qualified. Such a decision cannot be said to be perverse. A
Writ Court need not sit in appeal over such decision of the
Tender Evaluation Committee.
Referring to the terms and conditions of the e-tender,
learned Assistant Additional Advocate General has submitted
that, the petitioner did not qualify the essential criteria laid
down in the tender process. The petitioner did not have the
requisite technical qualification to have its financial bid
opened. Moreover, more than four working days were afforded
to the parties between the date of opening of the technical bid
and the financial bid as will appear from page 101 of the writ
petition being the tender summary report. Therefore,
according to him, no interference is called for in the present
writ petition.
The Superintending Engineer, Irrigation and Waterways
Directorate of the State of West Bengal, floated a notice
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inviting e-tender for special repair of drainage channel of
Nalipara at Barakar under Asansol Municipal Corporation.
The relevant eligibility criteria to match the prequalification
work credential in terms of execution of similar previous work
contract prescribed in the tender process is as follows:-
"A Prequalification (PQ) Work Credential:
i. Gross notional value of Completion Certificate
(CC) of at least one 100% completed single project
works contract (defined at clause 6) during the
current FY and preceding five FY of similar
nature (defined at clause 7) to the particular
work in this e-NIT, for which the bidder intends
to participate.
ii. Gross notional value of that similar work cited by
bidder as PQ work credential calculated by
multiplying the gross final value of the work as
per the CC with a factor as stated under Clause
7 I(a), should not be less than 30% of the amount
put to tender of the work for which the bidder
chooses to participate. (The same shall be
minimum 60% for Consortium/JV)
iii. Finally, the PQ work criteria of 'similarity' will be
established, only if summation of values of any
one of the following conglomerate of items,
calculated from the uploaded BOQ of the bidders
PQ work credential and further multiplying the
sum by the factor stated in Clause 7 III and is
greater than the monetary value of the
corresponding conglomerate of items shown
below:
a. Major Item description in brief: Protection
work (Type A)
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b. Rs. 38.23 Lakh & for Consortium/Joint
Venture Rs. 76.45 Lakh"
The general terms and conditions of the subject e-tender
requires a participant in such e-tender to submit bill of
quantities along with work order/award of contract duly
authenticated by the competent authority under technical
order. The protection work (Type A) is described in Clause
7.II.f of the general terms and conditions of the e-tender. It is
as follows:-
"Protection work (Type A): CC blocks/cement
concrete lining / toe walls / boulders of all kind,
dry brick pitching / brick block pitching / loose
boulder apron / crated boulder dumping,
boulder/blocks in PP rope-gabions/ brick bat
dumping for sausage or aprons or under water,
scour hole depth filling by boulders / brick bats in
geo-bags, sand/earth filled geo-bags, laying of
inverted filters below pitching by conventional
brick bats / jhama bags or geo-jute or geo-
synthetics, including supply, carriage and laying
at site etc complete."
Clause 14.3 of the General Conditions of the e-tender
requires the Tender Evaluation Committee to evaluate the
technical bids. It requires the Tender Evaluation Committee to
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scrutinise the bids and upload the technical bid opening
summary sheet within a minimum of two working days with
reasons for preliminary rejection and a preliminary list of
eligible bidders/contractors whose technical proposals have
been considered for uploading in the web portal. Clause 14.4
of the general conditions permits an aggrieved bidder to seek
clarification/redressal/review from the Tender Evaluation
Committee within 24 hours of the uploading of the tender bid
opening summary sheet. Clause 14.5 of the general terms and
conditions of the e-tender allows opening and evaluation of
financial bid. It allows the Tender Evaluation Committee to
accept the tender if it finds it acceptable.
The petitioner had participated in the subject e-tender. It
had submitted its bids electronically. The Tender Evaluation
Committee had opened the technical bid of the petitioner on
January 5, 2018 as appearing from the tender summary
report at page 101 of the writ petition. The technical bids were
scrutinised and the result of such scrutiny was updated on
January 11, 2018.
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It is the contention of the petitioner that, two of the
earlier works executed by the petitioner brings the petitioner
within the technical qualification as laid down in the subject
tender conditions. The tender documents submitted by the
petitioner were evaluated by the Tender Evaluation
Committee. According to the petitioner, three bill of quantities
items in one of the works and two of the bill of quantity items
in the other work should have been taken into consideration
by the Tender Evaluation Committee. Not having done so, the
Tender Evaluation Committee erred in evaluating the technical
bid of the petitioner correctly.
Afcons Infrastructure Limited (supra) has held that,
the decision making process in accepting or rejecting a bid
should not be interfered with unless, it is substantiated that,
the decision making process suffers from mala fides or is
intended to favour someone or is arbitrary or irrational or
such that no reasonable authority acting reasonably in
accordance with law could have reached such decision. A
perversity of the decision making process can be enquired
into. A decision which is merely faulty or erroneous or
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incorrect should not be a ground for a Court to interfere. A
Constitutional Court is expected the exercise restraint in
interfering with administrative decision and ought not to
substitute its view for that of the administrative authority.
The fact that, a different view can be taken on the self-
same material, is not a valid ground for interference for a
Constitutional Court with an administrative decision, unless,
it is substantiated that, the decision is tainted with fraud or
mala fide or the decision is so erroneous that, no reasonable
authority could have arrived at such a conclusion.
In the facts of the present case, the Tender Evaluation
Committee evaluated the tender documents and did not take
into consideration three of the bill of quantity items in one of
the works executed by the petitioner and two bill of quantity
items in the other. At best, the Tender Evaluation Committee
can be said to have erred in not taking into consideration such
bill of quantities. There is no material placed on record to
suggest that, the impugned decision was taken in order to
favour someone or suffers from mala fides. It is the contention
of the petitioner that, the petitioner had quoted the rate which
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was 20% less than the initial quote of the private respondent.
Moreover, the authorities accepted the bid of the private respondent after a discount of 2%. Ultimately, the exchequer suffered 18% less for not having accepted the bid of the petitioner. That by itself, will not attribute mala fides in the decision making process nor can the decision arrived at by the Technical Evaluation Committee be said to be taken for the purpose of benefitting the private respondent. The fact that the financial bid of the petitioner was less than 20% of the rate quoted by the private respondent was not known to the Technical Evaluation Committee as the financial bid of the petitioner was not opened while considering the financial bid of the private respondent. Moreover, the petitioner had time since January 5, 2018 when, the technical bid opening summary was uploaded till January 11, 2018 when the financial bid was opened, for the petitioner to question the decision of the Technical Evaluation Committee in not considering the petitioner as technically qualified. Nothing is placed on record to suggest that, the petitioner attempted to do so within such time period.
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In such circumstances, I find no reason to interfere. W.P. No. 1172 (W) of 2018 is dismissed. No order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]