Gauhati High Court
D.S. International vs State Of Assam And 2 Ors on 19 February, 2021
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/13
GAHC010011862021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/358/2021
D.S. INTERNATIONAL
A PROPRIETORIAL FIRM HAVING ITS REGISTERED OFFICE AT KEDAR
ROAD, FANCY BAZAR, GUWAHATI 1, REPRESENTED BY SOLE
PROPRIETOR SHRI DILIP SARMA, S/O LATE MAHENDRA NATH SARMA,
R/O KEDAR ROAD, FANCY BAZAR, GUWAHATI-1, ASSAM.
VERSUS
STATE OF ASSAM AND 2 ORS.
REPRESENTED BY THE PRINCIPAL AND SECY. AND APC, GOVT. OF ASSAM
TO THE DEPTT. OF AGRICULTURE, DISPUR, GUWAHATI 6
2:SECY. TO THE GOVT. OF ASSAM
AGRICULTURE DEPTT.
DISPUR
GUWAHATI 6
3:DIRECTOR OF HORTICULTURE AND FOOD PROCESSING
ASSAM
KHANAPARA
GUWAHATI 2
Advocate for the Petitioner : MR. S S GOSWAMI
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C)/436/2021
UNIMEX UDYOG AND ANR
A PROPIETORSHIP FIRM REP. BY SHRI SAJJAN KUMAR CHOUDHURY
(PROPRIETOR) HAVING OFFICE AT SHOP NO.1
Page No.# 2/13
ZAMAN MARKET
JAIL ROAD
FANCY BAZAR
GUWAHATI
KAMRUP (M)
ASSAM-78001.
2: M/S R.D TRADERS
A PROPIETORSHIP FIRM REP. BY SHRI PRANAB DEKA (PROPRIETOR)
HAVING OFFICE AT H.O 13 A
VINAYAK PATH
LAKHIMI NAGAR
HATIGAON
KAMRUP
ASSAM-781006.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
DEPTT. OF AGRICULTURE
DISPUR
GUWAHATI-781006.
2:THE DIRECTOR OF HORTICULTURE AND FOOD PROCESSING
DIRECTORATE OF HORTICULTURE AND FOOD PROCESSING
KHANAPARA
GUWAHATI-781036
ASSAM.
------------
Advocate for : MR. M K CHOUDHURY
Advocate for : SC
AGRI. DEPARTMENT appearing for THE STATE OF ASSAM AND ANR
Linked Case : WP(C)/450/2021
KUKI ENTERPRISES
A PROPRIETORSHIP FIRM
HAVING ITS OFFICE AT NEAR NRL PETROL PUMP
HOUSE NO.22
JOYANAGAR
GUWAHATI-22
REP. BY SOLE PROPRIETOR
SRI NAREN PATGIRI, S/O. BALORAM PATGIRI
R/O. CHITRABAN PATH
KAHILIPARA, GUWAHATI-781019
DIST. KAMRUP (M), ASSAM.
Page No.# 3/13
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
DEPTT. OF AGRICULTURE, DISPUR, GUWAHATI-781006.
2:THE DIRECTOR OF HORTICULTURE AND FOOD PROCESSING
DIRECTORATE OF HORTICULTURE AND FOOD PROCESSING
KHANAPARA, GUWAHATI-781036, ASSAM.
------------
Advocate for : MR. M K CHOUDHURY
Advocate for : SC
AGRI. DEPARTMENT appearing for THE STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
Date : 19-02-2021 Heard Mr. M. K. Choudhury, learned Senior Counsel assisted by Mr. M.Sarma, learned counsel for the petitioners. Also heard Mr. D. Saikia, learned Senior Counsel assisted by Mr. B. Choudhury, learned counsel for the respondent Agriculture Department, Assam.
The respondent No. 2, the Director of Horticulture and Food Processing Department, Assam floated the e-tender No. HORT.FP/560/Tender/2019-20/110 and 111 dated 13.1.2021 inviting tender for fixation of rate for the following tenders for procurement of (A) planting materials (No. HORT. FP/ 560 / Tender /2019-20/110) and (B) Minor Tools and Machineries (No. HORT.FP /560 /Tender/ 2019-20/111). As per the e-tender notice the date of publication of bidding documents was on 13.1.2021, 3 PM; last date and time for uploading of bids on 26.1.2021, 3 PM; date for receiving clarification on 20.1.2021, 3 PM, pre bid meeting on 17.1.2021, 3 PM; and date of opening technical bid on 27.1.2021, 3 PM.
Page No.# 4/13 The tender authorities on 24.1.2021 uploaded a corrigendum to the tender i.d. No. HORT.FP/560/Tender/2019-20/111 for supply of minor equipment and tools, plastic items, Bee Box with colony and equipments, Computer and accessories by amending the submission date as 27.1.2021 @ 10 PM as against the earlier cut off date of 26.1.2021 and further in the bid documents introducing changes in the specifications. The petitioners assailed the corrigendum dated 24.1.2021 by which material changes were made in the e- tender notice by inserting conditions regarding proof of supply /quantity which was absent in the e-tender notice dated 13.1.2021. The said new conditions were inserted on 24.1.2021 just two days before the last date fixed for submission of technical bids. The said action of the respondents violated the provisions of the Assam Public Procurement Act, 2017 which provides for granting reasonable time for submission of bids as well as mandatorily required the authorities to publish such modification/alteration in the same manner i.e. by way of newspaper publication. It is the contention that the respondent authorities are seeking to oust the petitioners from participating in the tender process in order to bring in undeserving bidders by materially altering tender conditions. Such action indicates exercise of arbitrary power which requires interference by this court.
Mr. Choudhury, learned Senior counsel submits that between the date of floating the tender on 13.1.2021 up to 26.1.2021 only five working dates remained for the bidders to obtain the necessary documents in order to respond to the tender. The timeline initially prescribed by the tendering authorities was 13 days from the date of publication on 13.1.2021 till 26.1.2021 which includes 6 holidays both State and Central Government. Though the NIT was published on 13.1.2021 , it was uploaded on the system on 14th and 15th January, 2021 both dates being holidays due to Magh Bihu. The requirement of Page No.# 5/13 working days for the prospective bidders including the petitioners was very much essential in order to procure documentation from the original manufacturer including the various documents in respect of the specification/quantities prescribed in the bidding documents as well as to obtain BIS documentation etc. Thereafter by way of corrigendum in the tender i.d. No. HORT.FP/560/Tender/2019-20/111 , there were changes introduced which required documentation of having experience of supply the minimum quantity at the very last moment. 24.1.2021 i.e. the date of issuance of corrigendum was Sunday and 26.1.2021 also happened to be a national holiday. The changes carried out to the bidding documents were substantial and material but no reasonable time was given to the bidders to apply for such documentation which clearly shows that the respondent authorities made the changes in order to bring in undeserving bidders .
Mr. Choudhury further referring the various provisions under the Assam Public Procurement Act, 2017 more specifically Section 9 and Section 23 submits that in the instant case only online version of the corrigendum was circulated without there being any newspaper publications as required mandatorily under Section 9 of the said Act, 2017. Accordingly it is the contention of Mr. Choudhury that the action of the tender authorities is ex facie arbitrary, illegal and violative of the rights guaranteed to the petitioners under Article 14 of the Constitution.
Mr. Saikia, learned Senior counsel for the respondents relying the affidavit-in- opposition filed by respondent No. 2 submits that the prospective bidders must be a manufacturer/dealer or distributor subject to fulfilment of the conditions specified in the tender conditions. Nowhere the petitioner stated fulfilment of the said qualifying criteria . As per the e-tender notice the last date for submission of the bid was on 26.1.2021 which was Page No.# 6/13 extended to 27.1.2021 and the pre bid meeting was scheduled on 17.1.2021. In the pre bid meeting which was rescheduled on 18.1.2021 most of the bidders participated and after discussion and receipt of application from the different traders, corrigendum of extension of date and other criteria were uploaded on 24.1.2021. The items in the NIT are planting materials which are season based. Delay in distribution of said materials to the beneficiary farmers may cause decaying of the planting materials. Further the State Assembly election is nearing and declaration of election date by the Election Commission of India would lead to imposition of election Code of Conduct and as a consequence would hamper the execution of scheme. For the said reason the duration cannot be extended for a longer period.
The bidders are not required to quote for all the items the same may be confined to 30% of any items in the schedule of requirements . The addition /changes brought in the tender through the corrigendum on 24.1.2012 was in order to bring experienced bidders within the State of Assam and the planting materials are required to be living in nature which determines the success of farmers with a longer vegetative growth. The principal i.e. the respondents are supposed to know the authenticated source of supply of the materials. It is also submitted that on technical evaluation it was found that 16 Nos. of bidders submitted the bids for planting materials and 22 Nos. of bidders in the minor tools and machinery group. The intent of the respondent authorities more specifically the tendering authority is not to oust the local supplier but for the benefit of the beneficiaries who are mostly farmers within the State. The petitioners failed to show any iota of evidence that there was arbitrariness in bringing the corrigendum with certain changes in the tender conditions, moreso when they does not fulfil the criteria fixed for participants in the NIT. Accordingly he sought for dismissal of the writ petitions.
Page No.# 7/13 I have given due consideration to the submissions made by the learned counsel. The petitioners are aggrieved because of changes brought in the tender condition by the corrigendum dated 24.1.2021 and the time duration given for submission of the bids thereafter which as per the contention of Mr. Choudhury is too short considering the subsequent requirements sought for from the prospective bidders.
Section IV of the NIT prescribes the eligible bidders who must be a manufacturer or a dealer or a distributor of the particular product. The eligibility of the bidders satisfying the criteria is to be supported by necessary documents. For instance the dealer/distributor is required to submit an authorisation letter from their respective manufacturers in their letter head authorising the bidder to participate in the bid. Manufacturer are not required to submit any documents nor any authorisation letter is required to be issued to the distributor or dealer of said manufacturer. Further while submitting bids for BIS product the required documents should be accompanied alongwith BIS number against the item quoted. Further test reports from the Government approved test centres are to be enclosed for the items mentioned in the schedule By way of corrigendum there were changes/ amendments in the bid documents amongst others in Section (A) schedule of requirements. The petitioners are interested in the plastic items wherein Section 5(A) is published in the corrigendum 2 which is reproduced hereinbelow alongwith the comparison of the changes introduced by way of amendment.
"PLASTIC ITEMS Sl. No Product In the bid document Modified as 2 Agro Shade Product should have BIS Product should have BIS & & CIPET Report CIPET Report Page No.# 8/13 The Bidder should have an experience of supply 300000 Sqmtr shade net in the state of Assam under Government/emi Government scheme 2(a) Agro shade net Product should have BIS A Product should have BIS & CIPET Report & CIPET report B.The bidder should have an experience of supply 3,00,000 sq mtr shade net in the State of Assam under Government/semi Government scheme
3. Agro shade net (Mono Product should have BIS Product should have BIS & filament) & CIPET report CIPET report The bidder should have an experience of supply 3,00,000 sqmtr shade net in the State of Assam under Government/semi Government scheme
5. Geo Membrane sheet Product should conform Product should have BIS for water harvesting to technical specification (attach) BIS Certificate) tank as per bid and bidder should have experience of supply and installation in the State of Assam and Govt./ Semi Govt Scheme.
The aforesaid comparison in between the earlier condition and the subsequent one goes to show that the bidder is required to have an experience of supply of 3 lakh sq. Meter shade net in the State of Assam under the Government/ semi Government scheme, though the requirement of documents in support of BIS and CIPET report remained same as the requirement in the original NIT. The subsequent requirements introduced in the said items are necessarily related to the eligibility of the participant bidders. It is specifically stipulated Page No.# 9/13 as hereinabove stated that bidder must be a manufacturer or a dealer or a distributor in respect of the said items. If a bidder satisfies the said amended condition (B) i.e the experience clause hereinabove referred, it hardly requires a day in order to bring the necessary certificate from the concerned Government/semi Government department.
It would not be out of place to mention that the said certificates are required from the departments within the State of Assam and not from other States and had it been so , the time period given of one day would definitely affect the bidders. Moreover the certificates of BIS and CIPET are inherent to the products inasmuch as without the said documentation, no dealer is authorised to deal with such plastic items. In the present case in hand, if the petitioners are given further time then also they are not in a position to satisfy the said conditions inasmuch as if there is no experience at all there is no point in challenging the said conditions introduced through the corrigendum . It is submitted by the learned counsel for the petitioners that amongst the three petitioners only one had participated in the tender process and that too after the extension of the time period for submission by way of the corrigendum. In such a situation the respondent tender committee is required to go as per the conditions of NIT, more specifically the qualifying criteria. As the NIT is specifically meant for participation of manufacturer / distributor/ dealer in respect of the items , in my considered opinion the subsequent amendment and introduction of the conditions in respect of experience cannot be held to be unreasonable inasmuch as if the changed conditions are taken into consideration and apply to eligible bidder as defined in the NIT it cannot be held that the introduction of said conditions were with an intent to oust a prospective bidder. This is because of the fact that the respondents specified the class of eligible bidders and if someone does not qualify ,he cannot expect any relief from the court Page No.# 10/13 also. Moreso the classification is reasonable keeping in view the object sought to be achieved by the NIT.
Mr. Choudhury referred to violation of Section 9 and Section 23 of Assam Public Procurement Act, 2017. The said provisions are extracted hereinbelow:
"Section 9 Time frame for processing:
(1) Subject to the rules as may be made by the State Government in this behalf every procuring entity shall pre-determine a reasonable time frame for completion of various stages of the process of procurement and indicate the same in the pre-qualification documents, bidder registration documents or bidding documents, as the case may be.
(2) The procuring entity shall endeavour to adhere to the time frame indicated under sub-section(1) and in case of failure to do so extend such time frame for reasons to be recorded in writing Section 23: Changes to bidding documents:
(1) In case any modification is made to the bidding documents or any clarification is issued which materially affects the terms contained in the bidding documents, the procuring entity shall publish such modification or clarification in the same manner as the publication of the initial bidding documents. (2) In case a clarification or modification is issued to the bidding documents, the procuring entity may , prior to the last date for submission of bids, extend such time limit in order to allow the bidders sufficient time to take into account the clarification or modification, as the case may be, while submitting their bids.
(3) Any bidder....................................
......................................................................
Here in the present case date of publication of bidding documents was 13.1.2021 and the date of opening technical bid on 27.1.2021 at 3 PM. In between the tender notice was published in the news papers/ website specifying date/dates for completion of various stages of the process of procurement. Section 9 of the said Act sub-Section 2 directs the procurement entity to make an endeavour to adhere to the time frame indicated and in case of failure to do so extend such time frame with reasons to be recorded. In the present case, the corrigendum was issued on 24.1.2021 before the last date for uploading of bids which was fixed on 26.1.2021 and that too on the representation of some of the prospective Page No.# 11/13 bidders. Clause 11 of Section 2(instruction to bidders) of the NIT is reproduced hereinbelow :
" Amendment of bid documents:
a. Before the last date for submission of bids, the purchaser may modify the bid documents by issuing online corrigendum. The corrigendum will appear on the website https://assamtenders. Gov.inunder "
Latest Corrigendum" and email Notification is also automatically sent to those bidders who have moved this tender to their "My Tenders" area.
b. Any addendum thus issued shall be a part of the bid documents and deemed to have been communicated to all the bidders who have moved this tender to their " My Tenders" area. In case of any addendum/corrigendum, the system will automatically send e-mails or mobile message to all bidders who have downloaded the bid document.
c. To give prospective bidders reasonable time in which to take an addendum into account in preparing their bids, the purchaser may extend as necessary, the deadline for submission of bids. In case a bidder has already submitted the bid before corrigendum, he will be allowed to give updated bid without any additional cost of bid document or Bid Security. In that case his updated bid will be taken up for evaluation."
NIT stipulates that the procuring authority may modify the bid documents by issuing online corrigendum specifying the portal before the last date for submission of bids. Further the procurement entity also stipulated that in order to give the prospective bidder a reasonable time after such amendment in preparing the bids, it may extend as necessary, the deadline for submission of bids. Moreover in case bidder had already submitted the bid before the corrigendum , he would be allowed to give uploaded bid without any additional cost and his uploaded bid would be taken up for evaluation. Accordingly as the procuring authority decided to bring an amendment in the bid documents as such it extended the time frame. On the other hand, though Section 23 of the Act requires that in case of modification of the biding documents which materially affects the terms contained in the bidding documents, the procuring entity shall publish such modification in the same manner as the publication of the initial bidding documents but in the present case the corrigendum was not published in the newspaper except online publication .
Mr. Choudhury submits that the changes introduced in the bid documents materially Page No.# 12/13 affects the earlier bid terms and as such the said corrigendum ought to have been published in the news papers though they uploaded in its portal . In my considered opinion the submission of Mr. Choudhury cannot be accepted inasmuch the tender conditions clearly specified under Clause 11 extracted hereinabove that the purchaser may notify the bid documents by issuing online corrigendum. The mode of publication in the news paper is not stipulated though under Section 23 it requires the publication in the same manner of the initial bidding documents. In the present case it is further stipulated in Clause 11 that e- mail notification would automatically sent to those bidders who shifted the tender to their "my tender area". The modes of delivery of the corrigendum is specifically stated and under such circumstances , I am not convinced to accept the submission of Mr. Choudhury that due to non publication of the corrigendum in the newspaper it violates Section 23 of the Act, 2017 moreso it is not the case of the petitioners that they were not aware of such corrigendum.
The Government though need not deal with anyone but if it chooses to deal, its action must be in conformity with the law and shall not be void under Article 13 of the Constitution. If a citizen is prevented by an action of the State, such action shall be justified only under Clause 6 of Article 19 which stipulates that the State is not prevented from making any law imposing in the interest of general public reasonable restriction on the exercise of the right conferred under Article 19(1)(g) or to prescribe professional or technical qualification for carrying on any occupation trade or business. There is no abstract standard for examining the reasonableness of such restrictions . The court has to see the nature of right alleged to have been infringed and the, underlying purpose of the restriction imposed. The disproportion of the imposition of the reasonable restrictions which are required Page No.# 13/13 to be assessed is also required to be examined with the object wanted to achieve by the State after imposing such restriction on the general public.
In the case in hand the petitioners challenged the corrigendum on the ground that the time limit for the extending period after the publication of the corrigendum was too short . However on examining the contention of the learned counsel for the petitioners and looking into the amended condition, I am of the considered opinion that the time period extended is reasonable vis a vis the amendments in the tender notice.
Accordingly, I do not find any merit in these writ petitions which stands dismissed at this motion stage. Interim order stands vacated. The respondent shall go ahead with the tender process for its logical conclusion.
JUDGE Comparing Assistant