Calcutta High Court (Appellete Side)
Quality Caterer & Anr vs Esi-Pgimsr & Esic Medical College on 13 April, 2023
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
Ct. 05
Item No.04
13.04.2023
(Suvendu)
WPA 9047 of 2023
Quality Caterer & Anr.
Vs.
ESI-PGIMSR & ESIC Medical College
and ESIC Hospital and ODC(EZ) & Ors.
Mr. Sirsanya Bandopadhyay
Mr. Arka Kumar Nag
Mr. Souvik Naiya
...............for the petitioners
Mr. Shiv Chandra Prasad
.......for the respondent nos. 1 & 2
Mr. Atish Majumdar Ms. M. Maity .......for the respondent no. 3 The affidavit of service is taken on record. The petitioner no. 1 participated in a bid floated by the respondent nos. 1 and 2/ ESIC Medical College and Hospital, Joka, Diamond Harbour Road, Kolkata for healthcare, kitchen and dietary service. The bid document is dated 03.03.2023. The technical bid was completed on 04.04.2023 and the petitioner no. 1 was communicated on 06.04.2023 stating that the bid has now moved to the financial bid evaluation stage. The petitioners thereafter received a mail on 06.04.2023 inviting the petitioners to participate 2 in a Reverse Auction (RA) on the Government e- Marketplace (GeM) in connection with a RA Number which is different from the bid number given in all other previous correspondences exchanged between the respondent ESIC Hospital and the petitioners.
The petitioners' case, as would appear from the submissions of learned counsel, is that the petitioners were unable to understand the implication of the mail of 06.04.2023 since the mail reflected a different bid number to that recorded in any of the letters exchanged between the parties. The petitioners hence did not participate in the Reverse Auction and were surprised to obtain information from the official portal of the respondents on 11.04.2023 that the petitioner no. 1 was assessed as the L3 bidder (quoting a Bid Price of Rs. 5.20 crores approximately).
The L1 and L2 bidders are the private respondents in the matter. The L1 bidder/ private respondent no. 3 is represented today.
Learned counsel appearing for the respondents ESIC Hospital submits that the petitioners chose not to participate in the Reverse Auction despite being given an opportunity to do so. Counsel also submits that the petitioner no. 1, 3 being the highest bidder in the technical bid, was disqualified under Clause 8 of the bid document. It is also the respondents' case that the petitioners have come to the Court at a belated stage.
Learned counsel appearing for the L1 bidder/ private respondent no. 3 relies on Clause 8 of the Bid Document to say that the petitioner no. 1 was disqualified by reason of Clause 8(i) of the bid document.
The conduct of the respondents is liable to be questioned on several aspects.
First, the admitted case, even according to the respondents, is that the petitioners failed to participate in the Reverse Auction despite being put to notice thereof. The other case of the respondents is that the petitioners, despite being invited to participate in the Reverse Auction by the mail of 06.04.2023, were however disqualified from participating by reason of Clause 8. The third case is that the petitioners despite being disqualified under Clause 8, were however eligible to participate in the Reverse Auction under Clause 8(i). All the three cases are mutually contradictory to and inconsistent with each other.
Clause 8 of the bid document indicates that the Reverse Auction would be conducted amongst all the technically-qualified bidders 4 except the highest quoting bidder. Clause 8 however goes on to say that the H1 bidder will be allowed to participate in the Reverse Auction in certain cases including if the number of technically-qualified bidders are only 2 or 3 (Clause 8(i)).
Even if the case sought to be made by the respondents is assumed to be correct, the documents before the Court show that 4 out of 5 bidders qualified in the technical stage. Hence, Clause 8(i) would not apply in the present case since the qualified bidders were more than 2/3. The upshot is that the petitioner no. 1 as the H1 bidder, would not be in a position to participate in the Reverse Auction in view of Clause 8. This fact is however belied by the respondents' mail of 06.04.2023 inviting the petitioner no. 1 to participate in the Reverse Auction.
Further, if the petitioner no. 1 admittedly did not participated in the Reverse Auction (as is the case of the respondents), the portal not only reflected the name but also the bid price of Rs. 52047200.00/- (Rs. 5.20 crore) against the petitioner on 11.4.2023. This is indeed surprising. If the petitioners failed to participate in the Reverse Auction, the figure given against the petitioner no. 1 cannot also arise in view of the 5 document showing that the petitioners' bid was for Rs. 4.91 crores. This is also the pleading in the writ petition. Hence, the figure of Rs. 5.20 crores could not have been put against the name of the petitioner on the portal of the respondents.
Learned counsel appearing for the respondents ESIC Hospital submits on
instructions that the respondents cannot permit the petitioner no. 1 to participate in the Reverse Auction.
Since the respondents' arbitrary conduct is writ large on the face of the record, this Court is of the view that there should be an injunction on the respondents from proceeding any further with the bid including issuing of any work orders in favour of the successful bidder/s until the matter is considered on affidavits.
Affidavit-in-opposition should be filed within two weeks from date; Reply within a week thereafter. List this matter after three weeks.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertakings.
(Moushumi Bhattacharya, J.) 6