Gauhati High Court
Abci Infrastructures Pvt. Ltd vs The Union Of India And 3 Ors on 13 December, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/6
GAHC010254522022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7984/2022
ABCI INFRASTRUCTURES PVT. LTD.
A PVT. LTD. COMPANY REGISTERED UNDER THE PROVISIONS OF THE
COMPANIES ACT, 1956 HAVING ITS REGD. OFFICE AT KNWLEDGE HUB,
DN-23, 2ND FLOOR, SECTOR-V, SALT LAKE, KOLKATA-700091, REP. BY SRI
PAWAN BAID, ONE OF THE DIRECTOR OF THE PETITIONER COMPANY.
VERSUS
THE UNION OF INDIA AND 3 ORS.
REP. BY ITS CHAIRMAN AND CEO, MINISTRY OF RAILWAYS, RAILWAY
BOARDS, RAILWAY BHAWAN, AND NEW DELHI.
2:GENERAL MANAGER
CONSTRUCTION
NORTH EAST FRONTIER RAILWAY
(CONSTRUCTION ORGANIZATION) MALIGAON
GUWAHATI-781011.
3:CHIEF ADMINISTRATIVE OFFICER
CONSTRUCTION-III
NORTH EAST FRONTIER RAILWAY
(CONSTRUCTION ORGANIZATION) MALIGAON
GUWAHATI-781011.
4:CHIEF ENGINEERING
CONSTRUCTION-VIII
NORTH EAST FRONTIER RAILWAY
(CONSTRUCTION ORGANIZATION) MALIGAON
GUWAHATI-781011
Page No.# 2/6
Advocate for the Petitioner : DR. ASHOK SARAF
Advocate for the Respondent : SC, NF RLY
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
13.12.2022 Heard Mr. U.K. Nair, learned senior counsel for the petitioner and Mr. S. Borthakur, learned counsel appearing on behalf of Mr. S.S. Roy, learned standing counsel for the respondents.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the decision of the tender committee, conveyed by letter no. W/CE/CON/EPC/MP/ 2022-06 dated 07.12.2022, Chief Engineer/Con-8, NF Railway to the effect that the offer of the petitioner was not suitable by the Tender Committee, as well as for other consequential reliefs.
3. Issue notice returnable on 20.01.2023. Requisite extra copies of the writ petition be served on the learned counsel for the respondents within 2 (two) days.
4. The learned senior counsel for the petitioner has made a prayer for interim relief, which is opposed by the learned counsel appearing for the respondents.
5. The learned senior counsel for the petitioner had relied on the pleadings and documents annexed to the writ petition and statements made Page No.# 3/6 and documents annexed to the additional affidavit filed today and it has been submitted that the respondents has not disputed that the petitioner company did not have the requisite financial capability or was otherwise disqualified to participate in the bidding process. It was submitted that the bid of the petitioner was rejected on flimsy grounds, which had no nexus with the object sought to be achieved. It was submitted that the petitioner firm was disqualified on three grounds, viz., (i) List of bankers was not submitted, which is required as per instruction no. 6 of Annexure-III of "Request for Proposal"; (ii) Financial statement for financial year 2021-22 was not submitted and Certificate from Statutory Auditor, which was required as per clause 2.2.2.7(ii) of "Request for Proposal"; and (iii) the petitioner had not submitted Annexure-VI of "Request for Proposal" with the offer.
6. The learned senior counsel for the petitioner had made elaborate submissions to bring home the point that the bank details had no requirement other than to refund the earnest money, bid security, performance security, etc., and was not a yardstick to evaluate the financial capacity and ability to complete the work. Extensive submissions were made to bring home the point that as the period to have the accounts audited for the financial year 2021-22 was not over, as per clause 2.2.2.7 (ii) of the request for proposal, the petitioner had submitted audited report of five years preceding the year for which audited balance sheet is not provided. Moreover, it was submitted that as per clause 2.2.2.8 (i) of the Request for Proposal, the respondent authorities were provided with details of payment made by them to the petitioner, based on which they have already evaluated the financial capability of the petitioner and in respect of the same, there was no complaint or objection. Hence, it was submitted that the respondent authorities could have asked the petitioner to provide further Page No.# 4/6 documents, which would have prejudiced no one. It was submitted that the intention of inviting bids is to see that large number of persons submit their bid. However, in the present case, the rejection of the bid submitted by the petitioner on the ground that the petitioner was not suitable was unreasonable, arbitrary and curtailed competition to a limited few bidders. It was submitted that the petitioner has challenged the decision making process. In support of his submissions, the learned senior counsel for the petitioner has placed reliance on the case of Tata Cellular v. Union of India, (1994) 6 SCC 651 (para-77) , and Rashmi Metaliks Ltd. & Anr. v. Kolkata Metropolitan Development Authority, (2013) 10 SCC 95 (paras 17 to 19).
6. The learned counsel for the respondents has submitted that the petitioner has failed in the test of whether the bid is responsive, for which the Court should be slow in interfering with the tender process. In support of his submissions, the learned counsel for the respondents has placed reliance on the case of (i) Agmatel India Pvt. Ltd. v. Resoursys Telecom & Ors., (2022) 5 SCC 362 (para-24 to 26), (ii) Bharat Coking Coal Ltd. & Anr. v. AMR Dev Prabha & Ors., (2020) 10 SCC 759 (para-31 to 36), (iii) Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd. & Ors., (2019) 14 SCC 81 (para 37 to 39) , (iv) Central Coalfields Limited & Anr. v. SLL-SML-(Joint Venture Consortium) & Ors., (2016) 8 SCC 622 (para 38, 43, 48 and 49), (v) U.P. Financial Corpn. & Ors. v. Naini Oxygen & Acetylene Gas Ltd. & Anr., (1995) 2 SCC 754.
7. It is seen that clause 3.1.6 of the "Request for Proposal" provides for "test of responsiveness". It is provided that a technical bid shall be considered responsive only if it fulfilled conditions (a) to (g) of Clause 3.1.6.1. It is not the case of the petitioner that he had provided the certificate envisaged under Page No.# 5/6 clause 2.2.2.7 (ii) of the "Request for Proposal", which is required if the audited balance sheet of financial year 2021-22 was not submitted. Therefore, as the "Request for Proposal" provides that on non submission of the documents mentioned therein, the bidder would not qualify under "tests of responsiveness", the Court finds that the bidder can be declared to be non-responsive.
8. The learned senior counsel for the petitioner has forcefully urged that there is no dispute that the petitioner would have qualified if the petitioner would have submitted the audited report of a certificate from the Chartered Accountant.
9. Thus, when in the "Request for Proposal" the respondents had clearly provided the tests of responsiveness under clause 3.1.6 and 3.1.6.1 thereof, the Court would be a loath to hold for the purpose of prayer for interim relief that the clause 3.1.6.1 was not mandatory, which would amount to re-writing of the terms and conditions of tender and to hold that even if a document required to be provided in the tender is not submitted, the bid would be responsive. The Court finds that the terms and conditions of the "Request for Proposal" indicates the tests of non-responsiveness, under such circumstances, the Court cannot sit in appeal over the decision of the respondents to hold that the bid of the petitioner was not responsive. The decision cannot be held to be mala fide, arbitrary, irrational or unreasonable in any manner. Therefore, both the cases cited by the learned senior counsel for the petitioner would have no application under the distinguishable facts of this case.
10. The petitioner did not question the said requirement during pre-bid meet. The condition provided in clause 3.1.6.1 is also not under challenge. Contrary to the case of Rashmi Metaliks Ltd. (supra), the clause 3.1.6.1 Page No.# 6/6 prescribes that lack of certain documents would entail the bid to be non- responsive, must be held to be an essential requirement of the contract.
11. Therefore, in light of the discussions above, this is not a fit case to stay the decision of the tender committee, as communicated by letter dated 07.12.2022, as indicated herein before or to stay the tender process as the construction work is a public project of importance to complete broad-gauge line to proposed from Murkongselek in Assam to Pasighat in Arunachal Pradesh.
12. In the light of the discussions above, the Court is not inclined to substitute its wisdom over the considered decision taken by the tender committee, who are experts in their field. The Court, prima facie, does not find that the decision making process is vitiated in any manner. Thus, interim relief in terms of the prayer made in this writ petition is refused.
11. It is clarified that the observations made in this order shall not prejudice the petitioner when the matter is heard and considered on merit. It is also clarified that in the event the petitioner succeeds in this writ petition, the Court would not be powerless to award compensation and cost to the petitioner.
12. List the matter on 20.01.2023.
JUDGE Comparing Assistant