Gauhati High Court
Page No.# 1/3 vs The Panchayat And Rural Development ... on 4 March, 2025
Page No.# 1/30
GAHC010168052024
2025:GAU-AS:2201-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/285/2024
M/S RAMA K GUPTA AND COMPANY
A CHARTERED ACCOUNTANTS FIRM, HAVING ITS HEAD OFFICE AT 201,
BLOCK 3A, GANESH GALAXY CITY, AYODHYA BY-PASS ROAD, BHOPAL-
462022 (M.P.). REP. BY ITS GUWAHATI BRANCH IN CHARGE R.K.
AGARWAL, PARTNER 4TH FLOOR, ESTHER ENCLAVE, S.J. ROAD
CHABIPOOL, GUWAHATI- 781001, ASSAM.
VERSUS
THE PANCHAYAT AND RURAL DEVELOPMENT DEPTT AND 2 ORS
GOVT. OF ASSAM, REP. BY THE PRINCIPAL SECRETARY, PANCHAYAT AND
RURAL DEVELOPMENT DEPTT. JANATA BHAWAN, BLOCK C 1ST FLOOR
DISPUR, GUWAHATI- 781006.
2:THE ASSAM STATE RURAL LIVELIHOOD MISSION SOCIETY
REP. BY THE STATE MISSION DIRECTOR
SIVA NATH GOGOI PATH
PANJABARI
GUWAHATI- 781037.
3:M/S H.K. AGARWALA AND ASSOCIATES
2ND FLOOR
SABITRI LALIT BHARALI BUILDING M.N. ROAD
PANBAZAR
GUWAHATI- 781001
Advocate for the Petitioner : N GAUTAM, MS N MAHANTA,MR. R M DEKA,MR. K N
CHOUDHURY
Advocate for the Respondent : SC, P AND R.D., MS K SARMA(R-3),MS K
BHATTACHARYYA(R-3),MR H K SARMA(R-3),MR M SAHEWALLA(R-3),MR G N
SAHEWALLA (R-3)
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BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 28.02.2025
Date of Judgment & Order: 04.03.2025
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair, J.)
Heard Mr. K. N. Choudhury, learned senior counsel, assisted by Mr. R.
M. Dutta, learned counsel, appearing on behalf of the appellant. Also heard
Mr. S. Dutta, learned standing counsel, Panchayat & Rural Development
Department, appearing on behalf of respondents No. 1 & 2; and Mr. G. N.
Sahewalla, learned senior counsel, assisted by Ms. K. Bhattacharyya,
learned counsel, appearing on behalf of respondent No. 3.
2. The present intra-Court appeal has been instituted, assailing the
judgment & order, dated 05.08.2024, passed by the learned Single Judge in
WP(c)3519/2024, instituted by the appellant.
3. The brief facts requisite for adjudication of the issue arising in the
present proceeding, is noticed as under:
The respondent No. 2 Society, had issued a Request for Proposal
(RFP), dated 25.01.2024, for submission of a proposal for conducting
statutory audit of the Assam State Rural Livelihoods Mission Society for the
financial year 2023-2024.
In terms of the Request for Proposal(RFP); the estimated bid value
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was stipulated as Rs. 16,00,000/-(excluding taxes). The appellant, herein,
submitted its bid in pursuance of the said Request for Proposal(RFP) on
12.02.2024. The technical bid of the bidders were scrutinized by the
constituted committee on 07.06.2024. On such scrutiny; it was found that
out of 14 bidders who had submitted their respective bids in pursuance of
the Request for Proposal(RFP), dated 25.01.2024; 4(four) bidders including
the appellant, herein, and the respondent No. 3, herein, were found to be
responsive. Thereafter, the financial bids of the qualified bidders were
opened on 10.06.2024. Considering the bid price so quoted; the appellant
Firm was denoted as the lowest bidder i.e. L1. However, a query came to
be raised by the authorities of the respondent No. 2 on 15.06.2024, to the
appellant, herein, to provide justification for quoting lesser price than the
minimum prescribed consultancy fee in the tender document. In response
to the said query posed by the respondent No. 2; the appellant submitted
its justification in the matter.
The appellant, in its justification, had contended that in the Request
for Proposal(RFP), dated 25.01.2024; the minimum consultancy fee so
prescribed was Rs. 16,00,000/-(excluding taxes) and it was not stipulated
in the said Request for Proposal(RFP), that post audit support fee was also
required to be separately quoted. It was projected that the appellant had
quoted consultancy fee of Rs. 16,00,000/-(excluding taxes) plus 18% GST,
as its bid price for the entire assignment in the financial bid. However, in
the Government e-Market(GeM) Portal, the price for the consultancy part
and the post audit support was required to be quoted separately. The portal
not having accepted "0" amount as the post audit support fee; the
appellant, herein, bifurcated the bid price quoted by it, into consultancy fee
and put a nominal amount in the post audit support fee column assuming
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that post audit support fee was also a part of the total assignment.
It is seen that the said clarification of the appellant, herein, was
further considered and on such consideration; it having been found that the
appellant had quoted an amount below the floor price stipulated in the
Request for Proposal (RFP), dated 25.01.2024; the Technical and Evaluation
Committee, re-examined the financial proposals submitted by all the
4(four) qualified bidders and the financial bid submitted by the appellant
having been found to be below the floor price so prescribed in the said
Request for Proposal(RFP) and the other bidders in the fray, having so
quoted their prices by adhering to the minimum financial audit services fee;
the financial proposal of the appellant, herein, was rejected by holding it to
be disqualified in the financial proposal segment.
On the disqualification of the appellant, herein, so occasioning for the
reason mentioned-above; the respondent No. 2 offered for awarding the
contract, in question, to the next ranked bidder i.e. respondent No. 3,
herein, on 28.06.2024. The Minutes of the Financial bid Evaluation was
notified on 27.06.2024, in the Government e-Market(GeM) Portal.
The appellant, being aggrieved, had approached the writ Court by
way of instituting a writ petition being WP(c)3519/2024. The learned Single
Judge on considering the issue arising in the matter and upon hearing the
parties to the proceeding; was pleased vide judgment & order, dated
05.08.2024, to dispose of the said writ petition by noticing that the
respondents, herein, had not complied with the provisions of Clause 30, 31
and 33 of the Request for Proposal (RFP). Accordingly, while not interfering
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with the contract awarded to the respondent No. 3, herein, on the ground
that it was stated that the work was already started by the respondent No.
3; the learned Single Judge had directed the State Respondents to comply
with the provisions of Clause 30, 31 and 33 of the Request for
Proposal(RFP) and thereafter, to arrive at a decision in the matter.
The award of contract to the respondent No. 3, herein, was made
subject to the decision of the State Respondents after complying with the
provisions of Clause 30, 31 and 33 of the Request for Proposal(RFP).
The contract so awarded to the respondent No. 3, was also kept in
abeyance till the State Respondents had complied with the provisions of
Clause 30, 31 and 33 of the Request for Proposal(RFP) and a decision is
taken thereon.
The State Respondents in terms of the directions passed by the
learned Single Judge vide judgment & order, dated 05.08.2024, in
WP(c)3519/2024, in compliance with the provisions of Clause 30 of the
Request for Proposal(RFP); issued a Notification of intention to award the
contract to the respondent No. 3, herein, to all the unsuccessful bidders
including the appellant, herein, on 09.08.2024. The standstill period,
accordingly, was brought into operation with effect from the date of
issuance of the said Notification and was to continue till 20.08.2024 till
12:00 noon. However, the said standstill period was further extended till
22.08.2024 upto 5:00 PM.
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The appellant, herein, on 13.08.2024, submitted a representation
with regard to the disqualification of its financial bid in pursuance of the
Request for Proposal(RFP), dated 25.01.2024 and requested for a de-
briefing report in the matter. The authorities of the respondent No. 2
required the appellant, herein, to be present in a de-briefing meeting which
was scheduled on 16.08.2024, in the office of the State Mission Director,
Assam State Rural Livelihoods Mission Society, Guwahati. However, the
appellant did not attend the de-briefing meeting held on 16.08.2024, and
had send a mail on 14.08.2024, intimating the authorities of respondent
No. 2 that no one from the Firm of the appellant, would attend such
meeting. Accordingly, further processing of the representation so submitted
by the appellant and the demand for a de-briefing report was decided by
the authorities of the respondent No. 2, to be closed.
4. The appellant, herein, being aggrieved by the judgment & order,
dated 05.08.2024, passed by the learned Single Judge in WP(c)3519/2024,
has approached this Court by way of instituting the present intra-Court
appeal on 16.08.2024.
5. The challenge presented in the present proceeding being to the
judgment & order, dated 05.08.2024, passed by the learned Single Judge in
WP(c)3519/2024; the operative part of the said judgment & order, being
relevant, is extracted hereinbelow:
"9. As can be seen from the averments made by the learned counsels for the parties
and the pleadings on record, the minimum prescribed bid for the consultancy
assignment was to be Rs. 16 Lakhs. Due to a default in the GeM portal, the petitioner
could not submit his bid in one part. He submitted his bid of Rs. 16 Lakhs minus Rs.
3/- for the entire assignment on one part, while submitting Rs.3/- as his bid for the
post audit service fees. The same was done due to bifurcation of the bid amount in the
GeM portal, as the bid could not be submitted in one part only. However, the pre-bid
meeting held on 05.02.2024, which was attended by the petitioner's representation,
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shows that a clarification as to the requirement of submitting the minimum bid
amount of Rs. 16 Lakhs for one part, i.e., the consultancy assignment, had been
made.
10. On considering as to whether the bid submitted by the petitioner, due to a default
created by GeM portal, could come in the way of the petitioner being the lowest bidder,
the issue would have to be decided by the State respondents. However, with regard to
Clause 30, 31 and 33 of the RFP, the same provides that a Standstill period would
have to be applied, when the State respondent transmits to its consultants, including
the petitioner, whose financial proposals were opened, the notification of intention to
award the contract to the successful consultant. The unsuccessful consultants are
thereafter allowed to make a written request for debriefing. On the request of the
unsuccessful consultants for debriefing, the State respondent/client is to provide
debriefing within five business days thereafter.
11. In the present case, there is nothing to show that a notification of intention to
award the contract to the respondent No. 3 had been made to the petitioner, in terms
of Clause 31.1 of the RFP. Though, it has been the submission of the counsel for the
respondent No. 3 that there has been substantial compliance of Clause 31 of the RFP,
due to the fact that the intention to award the contract to the respondent No. 3 had
been uploaded in the GeM portal, the respondents have not been able to show that all
the information required under Sub-Clause (a) to (i) of Clause 31.1, had been issued, in
terms of Clause 31 of the RFP. Further, the communication of the respondents'
intention to award the contract to the unsuccessful consultants has not been done
individually, by addressing the consultants specifically. It is also seen that despite
the petitioner's representation dated 28.06.2024 to the State Mission Director, Assam
State Rural Livelihoods Mission, requesting for debriefing, no debriefing time has been
given to the petitioner even till today.
12. Clause 30, 31 & 33 of the RFP is reproduced below as follows:-
"30. Standstill Period.
30.1 The Contract shall be awarded not earlier than the expiry of the
Standstill Period. The duration of the Standstill Period is specified in the Data
Sheet. Where only one Proposal is submitted, the Standstill Period shall not
apply.
31. Notice of Intention to Award 31.1 When a Standstill Period applies, it shall
commence when the Client has transmitted to each Consultant whose financial
proposal was opened, the Notification of Intention to Award the Contract to the
successful Consultant as per instructions in the Data Sheet. The Notification of
Intention to Award shall contain, at a minimum, the following information: (a)
the name and address of the Consultant with whom the client successfully
negotiated a contract; (b) the contract price of the successful Proposal; (c) the
names of all Consultants included in the short list, indicating those that
submitted Proposals; (d) where the selection method requires, the price offered
by each Consultant as read out and as evaluated; (e) the overall technical
scores and scores assigned for each criterion and sub-criterion to each
Consultant; (f) the final combined scores and the final ranking of the
Consultants; (g) a statement of the reason(s) why the recipient's Proposal was
unsuccessful, unless the combined score in (f) above already reveals the reason;
(h) the expiry date of the Standstill Period; and (i) instructions on how to
request a debriefing and/or submit a complaint during the Standstill Period.
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33. Debriefing by the Client 33.1 On receipt of the Client's Notification of Intention to Award referred to in ITB 31.1, an unsuccessful Consultant has three (3) Business Days to make a written request to the Client for a debriefing. The Client shall provide a debriefing to all unsuccessful Consultants whose request is received within this deadline.
33.2 Where a request for debriefing is received within the deadline, the Client shall provide a debriefing within five (5) Business Days, unless the Client decides, for justifiable reasons, to provide the debriefing outside this timeframe. In that case, the standstill period shall automatically be extended until five (5) Business Days after such debriefing is provided. If more than one debriefing is so delayed, the standstill period shall not end earlier than five (5) Business Days after the last debriefing takes place. The Client shall promptly inform, by the quickest means available, all Consultants of the extended standstill period.
33.3 Where a request for debriefing is received by the Client later than the three (3)-Business Day deadline, the Client should provide the debriefing as soon as practicable, and normally no later than fifteen (15) Business Days from the date of publication of Public Notice of Award of contract. Requests for debriefing received outside the three (3)-day deadline shall not lead to extension of the standstill period.
33.4 Debriefings of unsuccessful Consultants may be done in writing or verbally. The Consultant shall bear their own costs of attending such a debriefing meeting."
13. In the case of R.D. Shetty Vs. International Airport Authority, reported in (1979) 3 SCC 489, the Supreme Court has held that executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those Standards on pain of invalidation of an act in violation of them. In the case of Vidarbha Irrigation Development Corporation and Ors. Vs. Anoj Kumar Agarwala and Ors., reported in (2020) 17 SCC 577, the Supreme Court has held that the word used in the tender documents cannot be ignored or treated as redundant or superfluous and they must be given meaning and their necessary significance. Para 16 of the decision of the Supreme Court in Vidarbha Irrigation Development Corporation and Ors. Vs. (supra) is reproduced herein below as follows:-
"It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous - they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional Court."
14. On considering the fact that Clauses in a tender cannot be said to be superfluous or redundant and as it is not the case of the respondents that the Clauses in the RFP had been put there only for show, it was the duty of the respondents to act upon the Clause provided therein, specifically when Clause 31 and 33 pertains to giving information to the unsuccessful bidders, that the contract is going to be awarded to somebody else. As such, debriefing is required to be given to the unsuccessful Page No.# 9/30 tenderers, if they make a prayer for the same, as it was an essential condition of the RFP.
15. In the case of Pune Municipal Corporation and another vs. Harakchand Minirimal Solanki, reported in (2014) 3 SCC 183, the Supreme Court has held that it is a settled proposition of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all other methods of performance are necessarily forbidden.
16. In the present case, a procedure has been laid down by the State respondents for communicating the intention of the State respondents to award the contract to the successful bidder. However, prior to the actual awarding of the contract to the successful bidder, the provisions of Clause 30, 31 and 33 etc. has to be followed. These Clauses are meant for the unsuccessful bidders and when a procedure has been made by the State respondents, which cannot be said to be superfluous or redundant, the same would have to be followed. Further, there is nothing in the above Clauses to suggest that the said Clauses would not apply to a bidder, whose bid has been disqualified. The only requirement for its application is that the consultant/bidder's financial bid/proposal was to be opened by the respondent.
17. In view of the reasons stated above, this Court is of the view that as the provisions of Clause 30, 31 & 33 have not been followed, the award of the contract to the respondent No. 3 has been made in violation of the above Clauses Also, in terms of the judgment of the Supreme Court, the terms and conditions of a tender cannot be held to be superfluous or redundant. Further, as the provisions of Clause 31 have not been followed, which was required to be done, the respondents would have to perform the same.
17. Accordingly, in view of the reasons stated above, though this Court is not inclined to set aside the award of the contract given to the respondent No. 3, as he has allegedly started the contract work, the same will be subject to the decision to be taken by the State respondents after following the provisions of Clause 30, 31 & 33 of the RFP. The State respondents shall accordingly transmit to the petitioner and all other unsuccessful consultants, the notification of intention to award the contract to the respondent No. 3, as per instructions in the Data Sheet. Consequently, the Standstill period shall apply from the date the communication is made by the State respondents to the petitioner and the other unsuccessful consultants, regarding the intention of the State respondents to award the assignments to the respondent No. 3. Thereafter, the provisions of Clause 33 will be applied, if the petitioner and other unsuccessful consultants make a representation for debriefing. The award of the contract to the respondent No. 3 will be subject to the decision of the State respondents, after the provisions of Clause 30, 31 & 33 are complied with.
18. Till the provisions of Clause 30, 31 & 33 are followed and a decision is taken by the State respondents, the contract awarded to the respondent No. 3 shall be kept in abeyance."
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6. Assailing the judgment & order, dated 05.08.2024, passed by the learned Single Judge in WP(c)3519/2024; Mr. Choudhury, learned senior counsel for the appellant, has submitted that the Request for Proposal(RFP), dated 25.01.2024, having projected the work so tendered, to be an composite assignment consisting of the submission of a proposal for financial audit services and post audit support service for a period of 3 months; the estimated value of the contract having been so stipulated in the Request for Proposal(RFP) for the entire assignment as Rs. 16,00,000/- (excluding taxes) and there being no bifurcation of the estimated value amongst the components of the assignment so put to tender; the appellant, herein, had quoted its rate at the estimated value along with 18% GST which works out to Rs. 18,88,000/-.
7. Mr. Choudhury, learned senior counsel, has further submitted that while the bid price of the appellant, herein, in the financial proposal, was being so entered in the Government e-Market(GeM) Portal; it was found that the portal had required the bidder to quote rates separately for both the financial audit services as well as the post audit support service. The post audit support column not having accepted an entry of the amount "0"; the appellant, herein, was compelled to bifurcate the rate as quoted by it for the entire assignment into 2(two) components and had quoted "Rs. 3"
as its bid price for the post audit support service while Rs. 15,99,997/- (excluding taxes), was quoted as its bid price for the financial audit services.
8. Mr. Choudhury, learned senior counsel, has submitted that the Request for Proposal(RFP), dated 25.01.2024, having mandated only a Page No.# 11/30 single estimated value for the entire assignment; the bifurcated value as submitted by the appellant, herein, in the Government e-Market(GeM) Portal, on account of an error occasioning in the said portal also being equal to the estimated value in the said Request for Proposal(RFP), the State Respondents were required to construe the same accordingly and not proceed to hold the financial proposal as submitted by the appellant, to be non-responsive.
9. Mr. Choudhury, learned senior counsel, by referring to the contentions raised by the respondents both before the writ Court as well as in the present appeal that in a pre-bid meeting held on 05.02.2024, wherein, the representative of the appellant Firm had also participated; a clarification with regard to the necessity of quoting prices for both the financial audit services as well as the post audit support service, was provided, contended that as per the said clarification projected by the respondents, the bidders were to quote rates separately both for the financial audit services as well as the post audit support service in their financial proposal while uploading the same in the Government e-Market(GeM) Portal.
10. Mr. Choudhury, learned senior counsel, has further submitted that the last date for submission of the bids in pursuance of the Request for Proposal(RFP), was 20.02.2024. However, the authorities of the respondent No. 2 had uploaded the queries raised by the bidders and the clarifications given by the authorities of the respondent No. 2 thereto, only on 18.07.2024 i.e. much after the last date of submission of the bids.
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11. Mr. Choudhury, learned senior counsel for the appellant, herein, has disputed the fact that there were clarifications issued by the authorities of the respondent No. 2 in the pre-bid meeting, dated 05.02.2024, with regard to the manner in which the bidders were required to quote their bid price in their financial proposals while uploading the same in the Government e-Market(GeM) Portal. The learned senior counsel has further submitted that the pre-bid meeting queries and clarifications as uploaded on 18.07.2024, was an afterthought, in-as-much as, the representative of the appellant Firm had categorically contended that no such query was raised and no such clarification in this connection was also given in the pre- bid meeting held on 12.02.2024. The learned senior counsel has submitted that on 05.02.2024, the appellant having no means to know the changed manner in which the bid price in connection with the Request for Proposal(RFP), dated 25.01.2024, is to be quoted and it having quoted its bid price strictly in accordance with the said Request for Proposal(RFP), by construing the work tendered to be a composite assignment; the bid price of the appellant, herein, being not below the estimated value of the assignment in the Request for Proposal(RFP), there was no occasion for the respondent authorities to hold the financial proposal submitted by the appellant, herein, in the facts and circumstances existing in the matter, to be non-responsive.
12. Mr. Choudhury, learned senior counsel, has further submitted that there being an apparent departure in the manner in which the bidders were now required to quote their bid price in the Government e-Market(GeM) Portal from that so stipulated in the provisions of the Request for Proposal (RFP), dated 25.01.2024; the authorities of the respondent No. 2 was required to issue a corrigendum in the matter which, admittedly, was never Page No.# 13/30 issued. Accordingly, Mr. Choudhury, learned senior counsel, has submitted that no corrigendum having been issued in the matter and the appellant, herein, having complied with the provisions of the Request for Proposal (RFP), dated 25.01.2024, while uploading its financial proposal; the respondent authorities ought not to have declared the financial proposal of the appellant to be non-responsive, in-as-much as, the sum total of the price bid quoted by the appellant, herein, was not below the estimated value for the assignment as set-out in the provisions of Request for Proposal(RFP), dated 25.01.2024.
13. Mr. Choudhury, learned senior counsel, has submitted that after the opening of the financial proposal, a query having been raised by the authorities of the respondent No. 2 with the appellant on 15.06.2024; the appellant, herein, had responded to the said query immediately and therein, had explained its position, by highlighting the departure now required to be made while uploading the bid price in the Government e- Market(GeM) Portal from that so made in the terms and conditions of the Request for Proposal(RFP), dated 25.01.2024. The learned senior counsel has further submitted that the respondent authorities had not considered the justification so set-out by the appellant in response to the said mail, dated 15.06.2024, and proceeded to hold the financial proposal of the appellant, herein, to be non-responsive and thereafter, awarded the contract to the respondent No. 3, herein.
14. In the above premises, Mr. Choudhury, learned senior counsel, has submitted that in the terms and conditions as set-out in the Request for Proposal(RFP), dated 25.01.2024; there being no ambiguity, whatsoever, Page No.# 14/30 and the minimum estimated value in terms of the provisions of Clause 12 of Section 7 of the Request for Proposal(RFP), dated 25.01.2024, being so stipulated as Rs. 16,00,000/-(excluding taxes) for the entire assignment and the assignment being inclusive of financial audit services as well as post audit support service; the prescription of the minimum consultancy fee in the provisions of Clause 12 of Section 7 of the Request for Proposal (RFP); must be so construed to be a prescription for the entire assignment covering both the works involved. The learned senior counsel has submitted that the appellant having, for the entire assignment, not quoted a rate below the minimum estimated value in the Request for Proposal (RFP), dated 25.01.2024; there was no occasion for the respondent authorities to hold the financial proposal of the appellant, herein, to be non-responsive. Accordingly, Mr. Choudhury, learned senior counsel, has submitted that the decision of the respondent No. 2 to hold the financial bid of the appellant, herein, to be non-responsive; would mandate an interference.
15. Per contra, Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that in the pre-bid meeting held on 05.02.2024; it was clarified to the prospective bidders, basing on a query raised in the matter by one of the bidders, that the minimum fees of Rs. 16,00,000/-(excluding taxes) was in addition to the fee so required to be quoted for the post audit support service for a period of 3 months after completion of the audit period. In terms of the said clarification, it was further contended by the learned standing counsel that the bidders were informed that they have to quote the rates for the financial audit services(not below the prescribed fee excluding taxes) and also for the post audit support service for a period of 3 months while uploading their Page No.# 15/30 financial proposal in the Government e-Market(GeM) Portal.
16. Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, by referring to an affidavit sworn by the representative of one of the bidders i.e. P. Gaggar & Associates, wherein, it was stated that in the pre-bid meeting held on 05.02.2024, a query was raised by the representative of said P. Gaggar & Associates with regard to the minimum fee payable for the financial audit services and the post audit service components of the work and it was clarified by the authorities of the respondent No. 2 that the minimum prescribed audit fee of Rs. 16,00,000/- (excluding taxes) and the post audit support fee are to be quoted separately by the bidder in the Government e-Market(GeM) Portal.
17. Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has further submitted that the other bidders in view of the said clarification given by the authorities of the respondent No. 2, had quoted their bid price accordingly and the bid price so quoted by the other qualified tenderers for the financial audit services, was not below the minimum fee so stipulated in the provisions of Request for Proposal(RFP), dated 25.01.2024, i.e. Rs. 16,00,000/-(excluding taxes). The learned standing counsel has submitted that the appellant, herein, in its financial proposal for the financial audit services, having quoted an amount lower than that so stipulated as the floor price in the provisions of the Request for Proposal(RFP); a justification was sought for from the appellant, herein, in the matter. On receipt of the justification from the appellant, the Technical and Evaluation Committee re-examined the financial proposals of the appellant as well as the other remaining bidders ranked L2, L3 and L4 and Page No.# 16/30 it having come to light, on such re-examination, that the other bidders excluding the appellant, herein, having quoted their fee for the financial audit services by adhering to the minimum prescribed audit fee in the Request for Proposal(RFP) and having also quoted separate rates for the post audit support; Mr. Dutta, learned standing counsel, has submitted that the other qualified bidders had duly understood the manner in which the price bid was required to be so uploaded in the Government e-Market(GeM) Portal and the same had so occasioned only on account of the clarifications as given by the authorities of the respondent No. 2 in the pre-bid meeting held on 05.02.2024.
18. Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that the financial proposal of the appellant, herein, having been found to be non-responsive; the authorities of the respondent No. 2 had offered for awarding of the contract to the next ranked bidder i.e. respondent No. 3 on 28.06.2024. The Minutes of the Technical and Evaluation Committee was notified in the Government e- Market(GeM) Portal on 27.06.2024.
19. By referring to the provisions of Clause 13.1 of the Request for Proposal(RFP), dated 25.01.2024; Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that in the event, the appellant had any query with regard to the manner of uploading its price bid along with its financial proposal in the Government e- Market(GeM) Portal; it was open to the appellant to raise a query in this connection seeking a clarification from the authorities of the respondent No. 2.
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20. Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that the appellant, herein, had never raised any queries in this connection. Accordingly, it has been submitted by Mr. Dutta, that the decision of the Technical and Evaluation Committee with regard to the financial proposal of the appellant, would not call for any interference.
21. Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that the learned Single Judge in the judgment & order, dated 05.08.2024, passed in WP(c)3519/2024, having held that the provisions of Clause 30, 31 and 33 of the Request for Proposal(RFP), to have been not complied with by the authorities of the respondent No. 2; the authorities of the respondent No. 2, in pursuance of the passing of the judgment & order, dated 05.08.2024, by the learned Single Judge in WP(c)3519/2024, had, on 09.08.2024, issued the Notification of intention to award the contract to the respondent No. 3, to all the unsuccessful bidders including the appellant, herein.
22. Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that in terms of the provisions of Clause 30, 31 and 33 of the Request for Proposal(RFP), dated 25.01.2024; with the issuance of the Notification of intention to award the contract, dated 09.08.2024; the standstill period in terms of the provisions of Clause 31, came to be in effect. Accordingly, the bidders were now entitled under the provisions of Clause 33 to submit a written request to the respondent authorities for a de-briefing report in the matter. The learned standing counsel has submitted that the appellant, herein, on 13.08.2024, had submitted a representation with regard to its disqualification in the tender Page No.# 18/30 process and also requested for a de-briefing report in the matter.
23. Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that on receipt of the said representation of the appellant Firm, requesting for a de-briefing report; the authorities of respondent No. 2, on 14.08.2024, issued a communication to the appellant, herein, to be present in the de-briefing meeting scheduled on 16.08.2024, at 3:00PM, in the venue so mentioned. The learned standing counsel has submitted that the de-briefing meeting was so scheduled for addressing the issue so raised by the appellant, herein, with regard to its disqualification in the tender process. However, it is contended by Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, that the representative of the appellant, herein, did not attend the de-briefing meeting scheduled on 16.08.2024, and had issued a mail in this connection on 14.08.2024, intimating the authorities of respondent No. 2 that no one from the Firm of the appellant would be participating in such meeting.
24. In the above premises, Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that while the decision of the constituted committee to award the work to the respondent No. 3, herein; would not mandate an interference by this Court, it was further submitted by the learned standing counsel that the respondent No. 2 having complied with the provisions of Clause 30, 31 and 33 of the Request for Proposal(RFP), dated 25.01.2024, and the appellant, herein, having also sought for a de-briefing report in the matter, however, the appellant not having participated in such proceeding thereafter; it was not open to the appellant to now claim that the respondent authorities are Page No.# 19/30 required to again take recourse in the matter to the provisions of Clause 30, 31 and 33 of the Request for Proposal(RFP), dated 25.01.2024. Accordingly, Mr. Dutta, learned standing counsel, has submitted that the writ petition would not merit an acceptance and would be required to be dismissed summarily.
25. Mr. Sahewalla, learned senior counsel appearing for the respondent No. 3, by reiterating the submissions advanced by Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, has submitted that the financial bid of the respondent No. 3, herein, being found to be responsive, upon declaration of the bid of the appellant to be non-responsive, the respondent No. 3 being the next lowest bidder; the respondent No. 2 had entered into an agreement with the respondent No. 3 on 10.07.2024, and thereafter, the respondent No. 3 had started the financial audit services of the respondent No. 2 Society. However, during the pendency of the present proceeding; the work, in question, could not be taken to its logical conclusion.
26. Mr. Sahewalla, learned senior counsel, has further submitted that the principal work being for financial audit services; the prescription of the minimum consultancy fee in the provisions of the Request for Proposal(RFP), dated 25.01.2024, of Rs. 16,00,000/-(excluding taxes); is only with regard to the said financial audit services and not for the add-on service i.e. post audit support for a period of 3 months.
27. Mr. Sahewalla, learned senior counsel, has submitted that in view of the clarifications given by the departmental authority in the pre-bid Page No.# 20/30 meeting held on 05.02.2024; the qualified bidders excluding the appellant, herein, had quoted their respective rates by adhering to the minimum prescribed fee for the financial audit services i.e. Rs. 16,00,000/-(excluding taxes). Accordingly, Mr. Sahewalla, learned senior counsel for respondent No. 3, has submitted that the price bid quoted by the appellant, herein, cannot be held to be in compliance of the terms and conditions of the Request for Proposal(RFP), dated 25.01.2024, as well as the clarifications given by the authorities of respondent No. 2 in the pre-bid meeting held on 05.02.2024, and accordingly, the declaration of the financial proposal of the appellant, herein, as non-responsive, would not mandate an interference from this Court.
28. We have heard the learned counsels appearing for the parties and also perused the materials available on record.
29. At the outset, we would like to consider the contentions raised by the parties with regard to the decision of the Technical and Evaluation Committee holding the financial proposal submitted by the appellant Firm to be non-responsive. It is seen that the Request for Proposal(RFP) was so issued on 25.01.2024. The last date for submission of bids was so stipulated in the Request for Proposal(RFP), dated 25.01.2024, as 20.02.2024, at 2:00PM. In the said Request for Proposal (RFP), the estimated bid value for the assignment was so specified as Rs. 16,00,000/- (excluding taxes). The Request for Proposal(RFP) further prescribes that the work involved was of "Hiring Statutory Auditor for conducting statutory audit of Assam State Rural Livelihoods Mission Society for the financial year 2023-2024". Further, an add-on service of post audit support for a period of Page No.# 21/30 3 months, was also included. Clause 12 of Section 7 of the Request for Proposal(RFP), mandates that the minimum consultancy fee for the entire assignment excluding the reimbursable cost, will be Rs. 16,00,000/- (excluding taxes).
30. Mr. Choudhury, learned senior counsel for the appellant, herein, has contended that the words "entire assignment" as finding mention in the provisions of Clause 12 of Section 7, to mean the financial audit services as well as the add-on service i.e. post audit support for a period of 3 months. However, the said position was disputed by Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, as well as by Mr. Sahewalla, learned senior counsel for respondent No. 3. A perusal of the provisions of Section 1, more particularly, the work so highlighted therein, would go to reveal that the Request for Proposal(RFP) was issued basically for hiring statutory auditor for conducting statutory audit of Assam State Rural Livelihoods Mission Society for the financial year 2023-2024. A perusal of the bid details as set-out in the Request for Proposal(RFP), dated 25.01.2024; would reveal that in addition to the work so tendered which is basically financial audit services, an add-on service i.e. post audit support for a period of 3 months, was also required to be performed in the matter.
31. A conjoint reading of the work so tendered and finding mention in Section 1 of Clause 1 with the provisions of Clause 12 of Section 7 of the Request for Proposal(RFP), dated 25.01.2024; the prescription of the minimum consultancy fee as finding mention in the provisions of the Request for Proposal(RFP) would be in relation only to the financial audit services and not to the add-on service, involved. However, what is striking, Page No.# 22/30 is that, in the Request for Proposal(RFP) so issued; there is no provision made for quoting separate rates for the principal service i.e. financial audit services as well as the add-on service i.e. post audit support for a period of 3 months. It is, at this stage, that the clarifications as stated to have been given by the authorities of the respondent No. 2, in the pre-bid meeting held on 05.02.2024; would assume significance. The clarifications given and the manner in which it was published, was disputed by Mr. Choudhury, learned senior counsel for the appellant. It is the categorical contention of Mr. Choudhury, learned senior counsel, that no queries was raised with regard to the manner in which the bidders were required to submit their respective price bids with regard to the principal work i.e. financial audit services as well as the add-on service i.e. post audit support for a period of 3 months, in-as-much as, in terms of the provisions of the Request for Proposal(RFP), dated 25.01.2024, the work was construed as a single assignment.
32. Per contra, Mr. Dutta, learned standing counsel, Panchayat & Rural Development Department, and Mr. Sahewalla, learned senior counsel for respondent No. 3, by placing reference on an affidavit sworn by the representative of one of the qualified bidders who had projected that a query was so raised by him pertaining to the manner in which the bid price for the principal work i.e. financial audit services as well as the add-on service i.e. post audit support for a period of 3 months in the Government e-Market(GeM) Portal, is required to be so quoted by the bidders in the Government e-Market(GeM) Portal, contended that such clarification was duly given by the authorities of respondent No. 2, and complied by all the qualified bidders, excepting the appellant, herein.
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33. The materials coming on record bring to the forefront, disputed questions of facts. The disputed questions coming to the forefront, it is not possible for this Court to arrive at a conclusion thereon, basing on the affidavit so filed in the matter. Accordingly, the rival contentions raised by the parties to the proceeding, would not mandate a consideration in the present proceeding because of the disputed nature of the issue involved. However, even if the clarifications so given in the pre-bid meeting held on 05.02.2024, is ignored; the contentions of the appellant, herein, would be required to be considered in the light of the provisions of Clause 13 of Section 2 of the Request for Proposal(RFP), dated 25.01.2024.
34. Clause 13 of the Request for Proposal(RFP), dated 25.01.2024, being relevant, is extracted hereinbelow:
"13. Clarification and Amendment of RFP 13.1 The e-procurement system specified in ITC 17.1 provides for online clarifications. The Consultant may request an online clarification of any part of the RFP during the period indicated in the Data Sheet before the Proposals' submission deadline. Clarifications requested through any other mode shall not be considered by the Client. The Client will respond online by uploading the response (including an explanation of the query but without identifying its source) for information of all shortlisted Consultants, Should the Client deem it necessary to amend the RFP as a result of a clarification, it shall do so following the procedure described below:
13.1.1 At any time before the proposal submission deadline, the Client may amend the RFP by issuing an amendment online in accordance with procedure described in Data Sheet. The amendment shall be binding on all shortlisted Consultants.
13.1.2 If the amendment is substantial, the Client may extend the proposal submission deadline to give the shortlisted Consultants reasonable time to take an amendment into account in their Proposals.
13.2 The Consultant may submit online a modified Proposal or a modification to any part of it at any time prior to the proposal submission deadline in accordance with the procedure described in the Data Sheet. No modifications to the Technical or Financial Proposal shall be accepted after the deadline."
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35. A perusal of the provisions of Clause 13.1 of Section 2 of the Request for Proposal(RFP), dated 25.01.2024, would go to reveal that a bidder may request an online clarification of any part of the Request for Proposal(RFP) during the period indicated in the data sheet before the proposal's submission deadline. The clarification so requested, shall be responded, online, by the authorities of the respondent No. 2 for information of all short-listed bidders.
36. As noticed hereinabove; the last date for submission of the bids, was on 20.02.2024. It is also an admitted position that the appellant, herein, had submitted its bid on 12.02.2024. The stand of the appellant in the matter is that while uploading its bid price in the Government e-Market (GeM) Portal; the appellant had encountered a situation, wherein, it was now required to quote separate rates for the principal work i.e. financial audit services as well as the add-on service i.e. post audit support for a period of 3 months.
37. It is further projected that the Government e-Market (GeM) Portal did not accept "0" as the amount so quoted for the add-on service i.e. post audit support fee and accordingly, basing on its understanding; the appellant had bifurcated the minimum consultancy fee as prescribed in the Request for Proposal(RFP), dated 25.01.2024, of Rs. 16,00,000/-(excluding taxes), into 2(two) components and had quoted out of the said Rs. 16,00,000/-(excluding taxes); an amount of "Rs. 3", as post audit support fee and the rest for the financial audit services.
38. In the event, the appellant, herein, had faced the said situation while Page No.# 25/30 uploading its bid, which was admittedly so done on 12.02.2024, i.e. around 8 days prior to the last date of submission of the bids; it is not understood as to why the appellant had not taken recourse to the provisions of Clause 13 of Section 2 of Request for Proposal(RFP), dated 25.01.2024, and had not sought for any clarification from the respondent No. 2, in this connection.
39. The provisions of Clause 13.1 is categorical to the extent that in the event, any query is so raised, online; the authorities are duty bound to respond thereto, which response, will be shared with all short-listed bidders.
40. In view of the express provisions provided in the Request for Proposal(RFP), more particularly, the provisions under Clause 13 of Section 2 of the Request for Proposal (RFP), providing a scope to the intending bidder to receive clarification with regard to any part of the Request for Proposal(RFP) before the last date of submission of the proposal in the matter; the appellant, herein, not having taken recourse to the said provisions, in our considered view, it will not be open to the appellant to question the decision of the constituted committee in rejecting its financial proposal on the ground that it had quoted a rate for the principal service i.e. financial audit services, below the minimum prescribed price as stipulated in the Request for Proposal(RFP).
41. In view of the above discussions, we are of the considered view that the contention of the appellant, herein, that in the absence of any corrigendum being issued by the authorities of the respondent No. 2, Page No.# 26/30 mandating the bidders to quote separate fees for both the components of the assignment; the Request for Proposal (RFP) not having required the bidders to quote separate fees for the financial audit services as well as for the add-on service i.e. post audit support for a period of 3 months, the financial proposal of the appellant, herein, could not have been held to be non-responsive; would not mandate an acceptance in view of any clarification in this matter being not sought for by the appellant in terms of Clause 13 of the Request for Proposal(RFP), dated 25.01.2024. Accordingly, the decision of the respondent authorities declaring the financial proposal submitted by the appellant, herein, to be non-responsive, would not mandate any interference.
42. Having drawn the above conclusion with regard to the financial proposal as submitted by the appellant, herein; the conclusion drawn by the learned Single Judge vide judgment & order, dated 05.08.2024, in WP(c)3519/2024, requiring the respondents to comply with the provisions of Clause 30, 31 and 33 of the Request for Proposal(RFP), is now being examined. In the said judgment & order, in paragraph No. 12, the provisions of Clause 30, 31 and 33 of the Request for Proposal(RFP), had been set-out by the learned Single Judge and accordingly, the same is not again set-out in the present order. A perusal of the provisions of Clause 30 would go to reveal that the contract would not be awarded to the selected bidder before the expiry of the standstill period. The provisions of Clause 31 mandates that the standstill period shall commence when the employer has transmitted to each of the bidders whose financial proposals were opened, the Notification of Intention to Award the contract to the successful bidder, as per the instruction in the data sheet.
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43. The provisions of Clause 33 mandates that on receipt of Notification of intention to award the contract; an unsuccessful bidder is entitled, within 3 business days, to make a written request to the employer for a de- briefing. On receipt of such request, the employer shall provide a de- briefing to all unsuccessful bidders whose request is received within the time limit prescribed.
44. The materials brought on record reveals that the authorities of the respondent No. 2 in pursuance of the passing of the judgment & order, dated 05.08.2024, in WP(c)3519/2024, had, vide a communication, dated 09.08.2024, issued the Notification of intention to award the contract to the respondent No. 3, herein, to all unsuccessful bidders including the appellant, herein. The parties to the proceeding had also contended that the appellant, on 13.08.2024, on receipt of the said Notification of intention to award the contract to the respondent No. 3, herein, had submitted a representation on 13.08.2024. In the said representation, dated 13.08.2024, the appellant had requested for a de-briefing report in the matter from the authorities of the respondent No. 2.
45. A perusal of the said representation, dated 13.08.2024, would go to reveal that the appellant, herein, by projecting that the principal service so tendered as well as the add-on service so involved, being a composite assignment and the Request for Proposal(RFP), dated 25.01.2024, not having required the bidder to quote separate rates for the works, in question, a different procedure having been introduced in the Government e-Market(GeM) Portal for the purpose of uploading the financial proposal of the bidders; the appellant, herein, had required a consideration of the said Page No.# 28/30 issue and for providing a de-briefing report. On receipt of the said representation of the appellant, dated 13.08.2024; the authorities of respondent No. 2, on 14.08.2024, issued a communication to the appellant, requiring the representative of the appellant to be present in a de-briefing meeting which was scheduled to be held on 16.08.2024, at 3:00PM at the venue so mentioned.
46. The respondent authorities have projected that the said de-briefing meeting was scheduled for addressing the representation submitted by the appellant with regard to his disqualification in the tender process as well as the challenge to the decision for awarding the contract to the respondent No. 3, herein. However, it is seen that inspite of adopting the said course of action, as provided in the provisions of Request for Proposal(RFP), more particularly, the provisions of Clause 33 thereof; the appellant, herein, did not further proceed with the matter and did not attend the de-briefing meeting held on 16.08.2024. The respondent authorities have contended that the appellant had issued a mail on 14.08.2024, intimating the authorities of the respondent No. 2 that no one from the Firm of the appellant, would be attending the said de-briefing meeting. Accordingly, the appellant having not followed up with regard to the request so made by it in terms of the provisions of Clause 33 of the Request for Proposal(RFP), dated 25.01.2024, vide its representation, dated 13.08.2024; the matter was held to be closed by the respondent authorities.
47. It is also required to be noted herein that after the issuance of the Notification of intention to award the contract to the respondent No. 3, herein, on 09.08.2024; the standstill period was to continue till Page No.# 29/30 20.08.2024. However, the said period was further extended till 22.08.2024. The above developments taking place in the matter and the appellant, herein, having taken recourse to the provisions of Clause 33 of Section 2 of the Request for Proposal(RFP), dated 25.01.2024, and having submitted a representation requesting for a de-briefing report in the matter; the provisions of Clause 31 having been complied with by the authorities of the respondent No. 2, this Court is of the considered view that no further direction can be issued to the respondent authorities to again take recourse to the provisions of Clause 30, 31 and 33 of Section 2 of the Request for Proposal(RFP), in the matter.
48. The appellant, herein, although having an opportunity to have his grievance redressed in the matter, not having followed-up the matter after taking recourse to the said provisions and the respondent authorities having complied with the requirement so made of them in terms of the provisions of the Request for Proposal (RFP), dated 25.01.2024, in this connection; we are of the considered view that the respondent authorities in view of the steps taken by it after passing of the judgment & order, dated 05.08.2024, by the learned Single Judge in WP(c)3519/2024, have complied with the provisions of Clause 30, 31 and 33 of the Request for Proposal(RFP), dated 25.01.2024 and the appellant, having not participated in the proceeding; no error in the matter can be laid on the shoulders of the respondent authorities with regard to the decision taken by it, to close the matter.
49. In view of the discussions made hereinabove, we are of the considered view that the decision of the Technical and Evaluation Page No.# 30/30 Committee declaring the financial proposal of the appellant Firm to be non- responsive, would not mandate any interference.
50. Further, the directions passed by the learned Single Judge vide judgment & order, dated 05.08.2024, in WP(c)3519/2024, for compliance with the provisions of Clause 30, 31 and 33 of Section 2 of the Request for Proposal(RFP), having been so complied with by the respondent authorities and the appellant, herein, although having exercised its option under Clause 33, not having followed it up; we are of the further considered view that there would exist no hindrance for allowing the respondent No. 3, herein, to continue to execute the assignment involved, in terms of the agreement executed on 10.07.2024.
51. In view of the conclusions reached by us, hereinabove; we are of the considered view that the present appeal is devoid of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs.
JUDGE CHIEF JUSTICE Comparing Assistant