Calcutta High Court (Appellete Side)
Debasis Ghosh & Ors vs State Of West Bengal & Ors on 24 February, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
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24.02.2017.
rc
W.P. No.4065(W) of 2017
Debasis Ghosh & Ors.
Versus
State of West Bengal & Ors.
Mr. Sagar Bandyopadhyay
Mrs. Soma Kar Ghosh
Mr. Tanmoy Banerjee ... For the petitioners
Mr. Soumya Majumder
Mr. S. Maity
Mr. Anirban Chakraborty ... For the respondent no. 4
Mr. Samrat Sen
Mr. Amitava Roy ... For the State
The petitioner assails the rejection of the technical bid of the petitioner in respect of
a tender for supply of cooked diet to indoor patients of a hospital.
Learned advocate for the petitioner refers to the terms and conditions of the tender
and submits that the requirement of submitting attested photocopies with the technical
bid should not be read as an essential condition of the tender in the sense that the
attestation may be said to be non-essential so long as the actual documents are uploaded.
In the present case the petitioner has uploaded the relevant documents, however, without
any attestation. He relies upon AIR 1992 SC 1597 (M/s Poddar Steel Corporation Vs. M/s
Ganesh Engineering Works and Ors.) and submits that in view of such ratio the
attestation should be read not to be an essential condition of the tender and its non-
compliance should not be visited with a penalty of disqualification.
Learned advocate for the petitioner refers to the time schedule for the purpose of
consideration of the bids. He submits that the technical bid was schedule to be opened on
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January 24, 2017. The rejection was uploaded on January 31, 2017. The authorities could
have given an opportunity to the petitioner to rectify the defect in between the time of
opening of the technical hid and the uploading of the decision of the evaluation
committee. He submits that the rejection is without any reasons and, therefore, should not
be accepted. He submits that the authority should be directed to undertake a re-tender.
Learned Additional Government Pleader appearing for the State, submits that the
authorities experienced with previous situations with regard to documents unloaded
without attestation being of doubtful origin, had decided to call for attested copies thereof
in order to have some evidence of the veracity of the documents submitted. He submits
that, the petitioner did not upload the attested copies of the documents sought for under
clause 4 of the terms and conditions of the tender. He also refers to various other clauses
of the tender conditions and submits that the requirement under clause 4 is essential. He
submits that the work order has since been issued on February 03, 2017 in favour of the
added respondents.
Noticing that the third party right had intervene in respect of the tender by an
order dated February 17, 2017 the awardee was directed to be added a party respondent.
The petitioner has done so.
Learned advocate for the added respondents refers to the various terms and
conditions of the tender and submits that the tender conditions require a tenderer to read
the tender condition thoroughly and to seek any clarification, if required before uploading
the bid. He submits that the authorities had reserved the right to accept or reject the
tender without assigning any reasons.
I have considered the rival contentions of the appearing parties and the materials
made available on record.
Some of the terms and conditions of the tender relevant for the present matter are
as follows :-
"........................................................................................
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Tenderers are requested that, before quoting their rates or sending tender, the
tender forms may please be read out thoroughly (line by line) so as to have a clear
knowledge of the requirement contained therein, otherwise the hospital authority will
not be held responsible for any error/ oversight of his own and the penalties shall be
levied for not complying with the requirements stated herein or supply of the required
items/ services.
..........................................................................................................
The bidder should carefully read, understand and seek clarification, if any, before uploading the bid, no claim whatsoever, will be entertained for any alleged ignorance thereof.
....................................................................................... 4(iii) Attested photo copies to be uploaded.
(a) VAT Registration Certificate, if applicable;
(b) Profession Tax Clearance Certificate;
(c) Trade Licence/ Certificate of enlistment for trade in the field i.e. Catering Licence for supply of Cooked Diets; food licence, and health license if applicable;
(d) PAN/TAN Card issued by the competent authority;
(e) Credential Certificate of experiences: Should have at least 3 years experience in the last five years in supplying cooked diet in any Govt. Hospital with minimum bed strength of hundred, otherwise the bid will be liable for rejection;
(f) Employees Provident Fund Code No. in relation to the employees, allotted by the Regional Provident Fund Commissioner, Salt Lake, Kolkata in regard to the deposition of contribution under EPF account;
(g) E.S.I. Code No. related to the employees of the organization, allotted by the ESIC under ESIC Fund account.
(h) Copy of proof for residence of the Agency Contractor like photocopy of Voter Identity Card/ Telephone Bill/ Electric Bill/ Bank Pass Book.
(i) Income Tax Clearance Certificate for last 3 (three) years.
(j) The Agency should have Annual Turnover of Rs. 20 lakhs in each of the last 3 financial years."
On a reading of such terms and conditions a tenderer participating in the tender is required to upload the attested photocopies of the documents required under clause 4. It is contended on behalf of the petitioner that attestation of the photocopy is not an essential 4 condition and non-compliance thereof does not visit the petitioner with the fatality of rejection of the bid.
M/s Poddar Steel Corporation (Supra), in the facts of that case, had found that the deposit of money by a valid tender than otherwise prescribed by the tender condition is substantial compliance of the tender conditions. In the present case, when the authorities require attested photocopies, and particularly in view of the other terms which requires a tenderer to go through the terms and conditions of the tender thoroughly, and to seek clarification if wants to with regard thereto, it cannot be said that the requirement for attestation of the photocopies is a non-essential condition. The necessity of attestation is to weed out fictitious claims and to fix responsibility. An attestation of a document by law would require the original document to be presented before the attesting authority. As a writ court also I am not concerned with the decision itself per se but with the decision making process. In the present case, the authorities have taken a view on the understanding of the terms and conditions of the tender. The view taken by the authorities is that the requirement of uploading attested photocopies of the documents specified is an essential condition. The view taken by the authorities has not been demonstrated to be perverse. It has not been demonstrated that the authorities are selective in applying the view taken by it in respect of the participant bidders. The authorities have taken a view of the terms and conditions which it has applied to the tenderers participating in the tender process uniformly. The view taken is plausible.
In such circumstances I do not find any merit in the present writ petition. W.P. No. 4065(W) of 2017 is dismissed without any 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.) 5